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

text:
    Ex parte Rafael MINJARES, Jr.
    No. 57136.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 12, 1978.
    Opinion on Rehearing March 23, 1979.

      W. Stephen Hernsberger, El Paso, court appointed, for appellant.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Rafael Minjares appeals from an order denying relief on his application for a writ of habeas corpus. On September 23, 1977, petitioner was convicted in the municipal court of El Paso upon his plea of guilty to seven traffic law violations. The court assessed the following fines and costs as punishment for petitioner’s offenses:

No operator’s license $202.50
No operator’s license 202.50
Fraudulent use of vehicle registration 35.00
Negligent collision 35.00
No operator’s license 110.00
No operator’s license 202.50
Public intoxication 17.00
$804.50

Petitioner was ordered committed to the El Paso county jail in default of the fines adjudged against him. There he served sixty-two days of jail time, receiving credit toward his judgments at the rate of $5.00 per day, totaling $310.00. In addition, the sheriff of El Paso County, pursuant to V.A. T.S., Article 5118a, purported to commute one third of petitioner’s sentence at the rate of $2.50 per day, totaling $155.00. On November 10,1977, petitioner filed his application for writ of habeas corpus alleging that he had satisfied the judgments against him and was entitled to be discharged.

He contends that the fines against him were intended by the municipal court to be concurrent, there being no recital in the judgments to the contrary. He reasons that he is entitled to be discharged inasmuch as he has served an amount of jail time sufficient to satisfy the largest of the concurrent fines assessed and that his credit for time served ($310.00) added to the credit awarded him by the sheriff for good conduct ($155.00) results in a total sum in excess of the largest judgment against him.

We conclude that petitioner is not entitled to the relief requested. Judgments in misdemeanor convictions imposing pecuniary fines as punishment have been held not concurrent but cumulative. In Ex parte Hall, 158 Tex.Cr.R. 646, 258 S.W.2d 806 (1953), a fine was assessed in seven eases. This Court held that the judgments against the defendants in each of the seven cases were independent of one another, that they could not be discharged concurrently, and that the defendant’s satisfaction of the fine and costs in one of the seven judgments was not a satisfaction of the fine and costs in either or all of the other judgments. Accord Ex parte Williams, 133 Tex.Cr.R. 116, 109 S.W.2d 171 (1937); Ex parte Banks, 41 Tex.Cr.R. 201, 53 S.W. 688 (1899).

Were we to hold that the fines assessed by a municipal judge may run concurrently, a defendant such as petitioner would have a means of avoiding the satisfaction of many judgments by discharging the largest of the fines assessed against him. We decline to so hold.

V.A.T.S., Article 5118a, providing for commutation of jail time for good conduct, has no application to judgments of municipal courts wherein a pecuniary fine is assessed as punishment. The municipal court of an incorporated city, town, or village is empowered to assess fines as punishment. Article 45.06, V.A.C.C.P. Its criminal jurisdiction, however, is concurrent with the justice court in cases where punishment is by fine only and where such fines do not exceed $200.00. V.A.T.S., Articles 1195, 2385. The municipal court, therefore, has no jurisdiction to render judgment assessing jail time as punishment. It may order a defendant committed to jail only upon default of the payment of fines assessed against him. Article 45.06, supra; Articles 43.08 and 42.15, V.A.C.C.P. See Article 45.50, V.A.C.C.P., which provides for a specified portion of a fine to be paid at designated intervals. It may be used for people who are unable to pay all of the fines assessed. See also Ex parte Tate, 471 S.W.2d 404 (Tex.Cr.App.1971).

Article 5118a provides, in part, as follows:

“Commutation of time for good conduct, industry and obedience may be granted the inmates of each county jail by the sheriff in charge. A deduction in time not to exceed one third (V3) of the original sentence may be made from the term or terms of sentences when no charge of misconduct has been sustained against the prisoner.” (Emphasis supplied).

Under the above provisions, the sheriff of each county may apply credit for good conduct against the sentence under which a defendant is incarcerated. We conclude that since there is only a judgment in a municipal court there is no “sentence” against which a sheriff may apply good conduct credit earned by a defendant incarcerated for failure to pay municipal fines. In the present case, petitioner was not jailed pursuant to a sentence. Hence, the sheriff of El Paso County had no capacity to grant petitioner good conduct credit. See Gardner v. State, 542 S.W.2d 127, 128 (Tex.Cr.App.1976).

The fact that petitioner served time in the county jail of El Paso, rather than in a city jail, does not entitle him to the same commutation of sentence for good conduct that is afforded county prisoners. The record reflects that the city and county of El Paso are parties to a contract whereby city prisoners may be held in the county jail. Such contracts for joint city-county use of jail facilities are specifically contemplated by V.A.T.S., Article 5115a. Under the provisions of Article 45.05, V.A.C.C.P., however, prisoners convicted before municipal courts must be held in accordance with applicable city ordinances. The fact that they are incarcerated in county facilities does not make such defendants county prisoners.

We conclude, therefore, that petitioner may not receive credit toward the satisfaction of his judgments for good conduct. We further conclude that he should be remanded to the custody of the Sheriff of El Paso County and held in the El Paso County jail in lieu of payment of the remaining fines assessed against him until such time as each and every judgment is discharged.

The order denying petitioner’s relief under application for writ of habeas corpus is affirmed.

Before the Court en banc.

OPINION ON PETITIONER’S MOTION FOR REHEARING

ODOM, Judge.

The Court on its own motion has withdrawn during term time the mandate issued in this cause, and has withdrawn the original opinion on petitioner’s motion for rehearing and substitutes the following in lieu thereof.

This is an appeal from an order entered in the County Court at Law of El Paso County denying relief on petitioner’s application for habeas corpus.

On September 23, 1977, petitioner was convicted in the Municipal Court of El Paso on nine traffic complaints. Total of fines and costs in those cases was $788 with the highest single case being a $200 fine and $2.50 costs. The Municipal Court ordered petitioner committed to the custody of the Chief of Police until the $788 judgment “is fully paid or until he is otherwise legally discharged by the due course of law.” By contract with the city, the sheriff had custody of petitioner and held him in the county jail for 62 days before the hearing in county court on petitioner’s writ was held, at the conclusion of which petitioner was released on bail pending disposition of this appeal. Stipulations at the hearing showed petitioner received $5 per day credit against his fines plus $2.50 per day good time credit, for a total of $465 credit against the $788 judgment.

Petitioner’s contention on original submission was that under Article 5118a, V.A. C.S., he was entitled to discharge from custody when he had earned credit sufficient to discharge the largest single fine levied against him. On original submission the court disposed of the issue this way:

“We conclude that petitioner is not entitled to the relief requested. Judgments in misdemeanor convictions imposing pecuniary fines as punishment have been held not concurrent but cumulative. In Ex parte Hall [158 Tex.Cr.R. 646], 258 S.W.2d 806 (Tex.Cr.App.1953) fines were assessed in seven cases. This Court held that the judgments against the defendant in each of the seven cases were independent of one another, that they could not be discharged concurrently, and that the defendant’s satisfaction of the fine and costs in one of the seven judgments was not a satisfaction of the fine and costs in either or all of the other judgments.”

Petitioner argues this holding is in conflict with this language from Article 5118a, supra:

“This Act shall be applicable regardless of whether the judgment of conviction is a fine or jail sentence or a combination of jail sentence and fine. A prisoner under two (2) or more cumulative sentences shall be allowed commutation as if they were all one sentence.” (Emphasis added.)

Petitioner rests his position on the emphasized language, arguing that treating all $788 worth of fines as one “sentence” renders a punishment in excess of the maximum allowed within the jurisdiction of the Municipal Court. That position misconstrues the statute: Art. 5118a does not transform petitioner’s nine fines into one; it merely provides that for commutation purposes of the statute the fines are to be treated as if they were one. Thus, for fines and cumulated jail terms, good time credits cannot be earned concurrently against each fine or jail term, but to the contrary, treating them as one, good time credits can be earned only against the aggregate punishment. We adhere to the disposition of this issue reached on original submission.

In our opinion on original submission we also went beyond the issue raised by petitioner and held Art. 5118a, supra, does not apply to Municipal Court judgments. We therefore held petitioner could not be awarded $2.50 per day good time credit against his fines. That issue had not been raised and had the effect of reducing petitioner’s credits for his 62 days’ confinement from $465 to $310. Appellant challenges that holding and urges the above quoted language from Art. 5118a as authority for the proposition that good time credits should be awarded “regardless of whether the judgment of conviction is a fine or jail sentence or a combination of jail sentence and fine.” We agree that the absence of a formal sentence in Municipal Court prosecutions should not render Art. 5118a inapplicable.

Our holding on original submission was based on a reading of a sentence taken out of context. Article 5118a provides in part:

“In order to encourage county jail discipline, a distinction may be made in the terms of prisoners so as to extend to all such as are orderly, industrious and obedient, comforts and privileges according to their deserts; the reward to be bestowed on prisoners for good conduct shall consist of such relaxation of strict county jail rules, and extension of social privileges as may be consistent with proper discipline. Commutation of time for good conduct, industry and obedience may be granted the inmates of each county jail by the sheriff in charge. A deduction in time not to exceed one third (⅛) of the original sentence may be made from the term or terms of sentences when no charge of misconduct has been sustained against the prisoner. This Act shall be applicable regardless of whether the judgment of conviction is a fine or jail sentence or a combination of jail sentence and fine. . . .”

The opinion on original submission relied heavily upon the use of the word “sentence” in the next to last sentence quoted above, and concluded that because there is no “sentence” in Municipal Court convictions, the statute does not apply. The language immediately following the excerpt previously relied on states that the statute applies “regardless of whether the judgment of conviction is a fine or jail sentence or a combination of jail sentence and fine.” The sentence before says it applies to “the inmates of each county jail.” We hold petitioner is entitled to such good time credits as he had earned while an inmate of the county jail, and the absence of a formal sentence may not be used to deny him that credit. On the record before us petitioner has credits of $465 toward discharge of his $788 of fines and costs.

We have found further grounds not raised in the briefs that entitle petitioner to immediate discharge from custody. In the record appears an order of the judge who heard petitioner’s writ application. The order recites that after a hearing petitioner was found to be indigent. It is a matter of constitutional law that a defendant “may not be imprisoned because he is too poor to pay his accumulated traffic fines.” Ex parte Tate, Tex.Cr.App., 471 S.W.2d 404; Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130.

On remand the County Court at Law from which this appeal was prosecuted shall (1) determine the cause numbers of the Municipal Court cases, (2) set aside the commitment to custody issued by the Municipal Court, and (3) remand petitioner to the Municipal Court for execution of the judgments on the fine and costs remaining due by arrangement in the Municipal Court of a schedule of payments or other means legally authorized. See Articles 42.15, 43.07, 45.-06, 45.50, 45.52(b), V.A.C.C.P. See also Ex parte Sheppard, Tex.Cr.App., 548 S.W.2d 414. Petitioner is entitled to credit for $465.00 against the $788 total assessed in those cases.

Petitioner’s motion for rehearing is granted, the order of the County Court at Law denying relief is set aside, and the cause is remanded to the County Court at Law for further proceedings in conformity with this opinion.

It is so ordered.

DOUGLAS, Judge,

dissenting.

The opinion on original submission was correct.

The majority opinion leaves the impression that there is no difference between a judgment and a sentence and treats them as the same. In Ex parte Hayden, 152 Tex.Cr.R. 517, 215 S.W.2d 620 (1948), the Court wrote, “ ‘Judgment’ and ‘sentence’ are not the same thing; the two are distinct and independent. . . . ” In that case the convictions were for misdemeanor offenses. The trial court granted probation and ordered the relators discharged. The sheriff refused to discharge them and the habeas corpus proceeding followed.

Under consideration was a Texas constitutional provision, Section 11-A of Article 4, which provides:

“The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe.” (Emphasis supplied).

House Bill No. 120, Chapter 452, Acts of the 50th Legislature, Regular Session, page 1049, Vernon’s Annotated Code of Criminal Procedure, Article 781b, authorized probation in misdemeanor cases. At that time there were no sentences imposed in any misdemeanor cases. This Court held that since the constitutional provision allowing probation referred only to sentences it did not apply to misdemeanor cases because in those only judgments were entered. See Ex parte Waggoner, 276 S.W.2d 106 (Tex. Cr.App.1954).

In Gilderbloom v. State, 160 Tex.Cr.R. 471, 272 S.W.2d 106 (1954), the Court noted that Ex parte Hayden, supra, held that the adult probation law had no application except in those cases where a sentence had been made mandatory by the Legislature and followed that case. Neither case has ■been overruled.

As construed by this Court thirty years ago and until this case, there is a great difference between a judgment and a sentence.

Following the Hayden and other cases, relator was not entitled to have the judgments treated as one sentence. This Court held the statute that treated the judgment as a sentence was unconstitutional.

The majority apparently thinks it bad that the original opinion discussed something not raised in appellant’s brief. The writer knows of no rule that this Court is bound by any brief in discussing the law applicable to a case. If discussing a matter not raised in the brief is wrong, why does the majority discuss the question of indi-gency which was not raised in appellant’s brief?

The writer of the majority opinion has often discussed matters not raised by the brief. One interesting example is found in Lechuga v. State, 532 S.W.2d 581 (Tex.Cr. App.1975). In that case the trial court found the defendant guilty and assessed punishment at three years’ confinement. At the defendant’s request a motion for new trial was granted. The same judge then assessed punishment at five years, probated. Lechuga was apparently happy to get it because he did not appeal. After probation was granted, Lechuga committed several crimes and because of these his probation was revoked. He appealed from the order revoking probation. The majority of the then five judge Court held that the punishment of five years’ probation was more than three years’ confinement in the Department of Corrections and reversed the conviction. This was a matter not raised in the brief.

When a federal prisoner is placed in a county jail, he is still a federal prisoner. Can the sheriff give him credit for good time?

When a city prisoner is placed in a county jail for an unpaid fine, he is still a city prisoner. Under the majority ruling a double standard is created. One in custody for a fine set in a municipal court and who is confined in a city jail does not get good time credit from the sheriff. Where, as in this case, there is a contract with a county to handle prisoners for a city until their fines are paid, the majority allows good time credit not allowed to the vast majority of those convicted in city courts because they are in different jails. Should a city prisoner in a county jail have more rights than a city prisoner in a city jail?

For the reasons stated in the opinion on original submission and here, the relief sought should be denied.

      . Although nine were stipulated, only seven were set out.

      . See Article 42.02, V.A.C.C.P.


source: Caselaw Access Project

author: PHILLIPS, Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Pete TREVINO, Appellant, v. The STATE of Texas, Appellee.
    No. 55059.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 4, 1979.
    Rehearing En Banc Denied June 27, 1979.
    John R. McFall, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and Sam Oatman, Asst. Crim. Dist. Atty., Lubbock, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for murder. Punishment was assessed at eight years’ imprisonment.

Appellant’s first ground of error alleges that jury misconduct occurred after the jury retired to deliberate on appellant’s guilt or innocence when new evidence was presented to the jury by a juror concerning the design or layout of the premises in which the shooting occurred and the location of the bullet holes. Two jurors.testified at the hearing on appellant’s motion for new trial. Juror Hodges, testifying for the appellant, related the following:

Q. All right. Now, was there ever any dispute, once again, between you and the other jurors relative to the location of the bullets in the house?
A. Yes, sir. There was.
Q. All right. If you would, just expound on that some, please, ma’am?
A. All right. We had the drawing that Mrs. Wilson had done of the house.
Q. The exibit (sic), the diagram?
A. Right.
Q. Okay. Go ahead.
A. All right. At any rate, they were knocking down the fact that I said that the man could stand in one place and not follow Mr. Wilson to the back door.
And they said they (sic) he couldn’t have done that, couldn't have stood there. This is what the controversy really was over, was whether or not Mr. Trevino had stood still and shot the bullets, or whether he had followed Mr. Wilson clear through the house.
Q. I see. All right.
A. All right. They said that the bullets were in the far back door, back in the back, way back, like way back right outside.
Q. All right.
A. And I felt like it ought to be more toward the front, you know.
And one of them jumped up, I don’t know what his name is, I think it was a tile layer, or a contractor and he said that he had worked in a lot of those houses in that part of town where this house was. He said that those houses are very small, but there is sharp corner, that the door facings were very narrow, and that Mr. Trevino would have to go completely through there in order to get the bullet in the back of the door.

The State called the jury foreman, juror Cox, who testified that the dimensions of the living room and house were discussed during deliberations, but that he could not remember or recall whether one of the jurors actually related his personal knowledge of the houses in that area. Thus, juror Hodges’ testimony concerning the introduction of new evidence during the deliberations of the jury went uncontroverted by the State.

The significance of this “new evidence” lies in the fact that the appellant was relying on a theory of either self-defense or voluntary manslaughter. The statement by the juror concerning the layout of the home and the necessary conclusion that appellant followed the deceased through the home while firing at him was of such a character as to negate the appellant’s theory that he responded to a perceived threat without conscious deliberation.

Article 40.03, V.A.C.C.P., states:

“New trials, in cases of felony shall be granted for the following cause, and no other:
7. Where the jury, after having retired to deliberate upon a case, has received other testimony; . . . ” (Emphasis added)

When it is established, by uncontroverted evidence, that the jury has received other evidence after retiring to deliberate the cause and that “evidence” is detrimental to the defendant, a new trial must be granted. See Rogers v. State, Tex.Cr.App., 551 S.W.2d 369; cf. Honeycutt v. State, 157 Tex.Cr.R. 206, 248 S.W.2d 124. As stated in Rogers:

“The statutory provision here applied was designed by the Legislature to guarantee the integrity of the fundamental right to trial by jury by restricting the jury’s consideration of evidence to that which is properly introduced during the trial. To adequately safeguard that right from erosion, the Legislature in its wisdom created a per se rule. It is the duty of this Court to follow that mandate.” Id. at 370.

Not only was the statement of the juror concerning the location of the bullets new evidence, but his statement concerning the location of the bullets was erroneous. It is noted that the testimony of State’s witness Bustos relates that he observed bullet holes in the seat by the table where he was sitting and “the others were in the right-hand side of the door area, as you go from the dining room to the kitchen, right-hand side.” Although Officer Coon’s testimony was vague as to the precise location of the bullet holes in the door facing, it is consistent with the testimony of State’s witness Bustos. Officer Coon testified that two slugs were recovered from the northwest corner of the house in the kitchen area, two bullets were recovered from “the door facing,” one from the deceased, and one hole was in the floor under the table. All this evidence is consistent with the testimony of the appellant when read in conjunction with the diagram of the house in State’s Exhibit No. 3. We can only conclude that the statements made by the juror during deliberations constituted new evidence, were erroneous, and operated to prejudice the appellant’s case (although we need not “speculate on the probable effects on the jury or the question of injury” resulting from such new “evidence”). See Rogers v. State, supra; Note 802 to Article 40.03, V.A.C.C.P.

In light of our disposition of this ground of error, we need not address appellant’s other contentions.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The majority reverses this cause because of alleged jury misconduct which tended to refute his contention of self-defense.

Trevino testified that he shot and killed the deceased. There was an attempt to raise the issue of self-defense. Even though it appears that no such issue was raised, the cautious trial judge charged on self-defense and defense from the acts of another and defense of another. Some of the facts need be discussed to see if there was error and, if so, was it harmful.

Canderlia Wilson was married to Raul Wilson, the deceased, at the time of the offense. On June 1, 1974, at about 3:00 p. m., appellant came to their home and went into the back yard where the deceased and Manuel Garza were. Appellant and the deceased argued. Appellant stayed there some twenty minutes. Appellant left and returned some time later. He carné to the front door and stated that he had returned for his bottle. At this time her husband was seated in the dining room drinking a beer. She got the bottle to return it. Appellant entered the house and was standing next to her. She walked back to close the door and she heard some five or six shots in the dining room. As she was going toward her husband, appellant said, “Don’t get in my way, you son-of-a-bitch, because I will let you have it.” She found her husband lying face down in the kitchen. She turned him over in her lap and saw bullet wounds in his chest and leg.

David Bustos testified he was at Raul’s house at the time of the shooting. He was on the way to his car to get a bottle of whiskey when he met appellant who had his hand on the handle of what looked like a .38 caliber pistol in his right rear pocket. Bus-tos ran to some bushes and stopped. He then heard some four or five shots. As appellant left the house, Manuel Garza fired one shot at him with a .22 caliber pistol. Bustos tried to render first aid to Raul, but he died there in the arms of Bustos. He saw bullet holes — “One was in the seat, where I was sitting at first, and the others were in the right hand side of the door area, as you go from the dining room to the kitchen, right-hand side . . .”

Troy Coon of the Lubbock Police Department testified that there had been one shot into the table that went in the floor but that they did not recover the bullet. They recovered two or three bullets in the house and one from the body of the deceased.

Officer William Allen testified, among other things, that the body was found at the rear kitchen door.

Dominga Trevino, wife of appellant, testified that while her husband was in a hospital the deceased came by early in the morning of February 20,1974, and asked to spend the night with her, but he left when his wife drove up. She testified that on May 18 deceased put his arm around her in a grocery store and that she slapped him. She testified that on June 1, 1974, the day of the homicide, she went to Levelland at the request of her husband and that he turned himself in two days later.

Appellant testified that his wife told of advances made by deceased toward her once while he was in the hospital. He related that he called the deceased and his wife and told him not to bother his wife anymore. Later the deceased called and stated that if appellant wanted to get out of the hospital alive not to call his home anymore. He also testified that the deceased bothered his wife again at a grocery store some two weeks “before I shot him.” He also related that he was driving by the home of the deceased and he stopped to pay “Candy” some $10.00 that he owed her. He got into a discussion with the deceased who asked if he wanted to fight over it and appellant said, “I will if I have to. Let’s go in the alley.”

They then went into the alley and he saw that Manuel Garza had a tire tool in his hand. Appellant then started walking to his car and the deceased said that he would get him that bitch of his before the day was over.

Appellant left and went to a pawnbroker’s and bought a gun and then went back to the Wilson house with it in his pocket. He did not intend to kill Wilson but just to scare him. When he went to the house he saw that Manuel Garza had a gun in his hand. After a conversation, Wilson said, “I’ll teach that bitch”, and started walking toward him. Wilson further said, “I’ll kill you now”, and “I just started shooting”, and “he kind of stopped like”, and that as he left, Manuel fired a shot at him. He testified that he did not try to defend himself against Manuel Garza. He never saw Raul Wilson (the deceased) with a gun.

First, it is contended that the court erred in overruling the motion for new trial because of jury misconduct. In this connection, the motion for new trial alleges as follows:

“Defendant would further show that the jury was guilty of misconduct as is shown in the attached affidavit wherein the juror Hodges requested to hear the testimony related to the position of the bullet holes in the house and was told she would not be allowed to do so and specifically this part of the testimony was directly connected to her opinion of the defendant’s right of self defense wherein all the other jurors said that the testimony showed that the defendant had to have followed the deceased through the kitchen to the back door and in this connection defendant would show that there was no testimony to this effect and had the testimony of the witness Coon been played back it would have showed the position of the bullets which would have supported the juror Hodges and she would not have voted for guilty of murder.
“Defendant would show that the jury was guilty of misconduct in that it received new evidence after it began its deliberation in that one of the jurors related his expertise of a .38 caliber pistol and told the jury many things about how you had to operate the pistol and used this information as the basis for finding the defendant guilty of murder and this new testimony coupled with and together with the other instances of misconduct directly affected the juror Hodges’ vote and caused her to finally, after approximately 3 hours to change her vote of guilty of the offense of murder which was in effect a coerced vote.
“Defendant would further show that after the verdict of guilty was read by the Judge the defendant immediately requested that the jury be polled which was done but as is reflected in the affidavit of juror Hodges, she did not know that she could inform the Court that this was not her verdict and that she wanted to change the same and had she known that she could have so informed the Court she would have and would not have thereafter changed her vote in any matter and would not have voted guilty to the offense of murder.”

To the contentions that she did not know that she could tell the court that the verdict was not hers, we perceive no error. The court polled the jury, and she stated thé verdict was hers. She cannot impeach her verdict by what she might have done.

She also stated that she did not know that the jurors could examine the pistol or other evidence. This is contrary to the court’s charge. The court instructed the jury that they could ask for any evidence that was introduced, all she had to do was to ask the court. The reason behind her vote cannot be used to impeach her verdict. Adams v. State, 481 S.W.2d 884 (Tex.Cr. App.1972).

Actually, self-defense was not raised. See Mahaffey v. State, 471 S.W.2d 801 (Tex.Cr.App.1971). The court did charge on self-defense and the defense of appellant’s wife. There was no dispute at the trial on the location of the bullets. The evidence to support any defensive issue would be that of appellant. He testified that he offered to go to the alley to fight Wilson but left when he saw that Garza had a tire tool. After he left he went to a pawnshop and bought a .38 caliber pistol and returned some forty minutes later to the Wilson home. He related that he did not go back to shoot Wilson. This would show that he was not there to prevent Raul Wilson from harming appellant’s wife. No defense of her person was involved. He also testified that he was not defending against Garza.

The strongest evidence for an issue of self-defense was that Wilson walked toward him and said that he was going to kill him. The evidence shows that Wilson was not armed. The appellant did not testify that Wilson made a threatening gesture toward him or that he thought Wilson was armed. He testified that he did not see a gun on Wilson and that Wilson had stopped before appellant shot. Walking toward someone does not raise an issue of self-defense where serious bodily injury or death is threatened. If one can kill someone in self-defense for walking toward him, the law of self-defense should be changed. Since appellant admitted the killing and no issue of self-defense was raised, we should hold that the court did not abuse its discretion in overruling the motion for new trial.

No reversible error is shown. The judgment should be affirmed.


author: W. C. DAVIS, Judge.

text:
    Arland Lee HOLLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 55449.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 4, 1979.
    Rehearing En Banc Denied June 27, 1979.
    Patrick Roland Ganne, Austin, for appellant.
    Ronald D. Earle, Dist. Atty. and Richard E. Banks, Asst. Dist. Atty., Austin, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated sexual abuse. V.T.C.A. Penal Code, Sec. 21.05. Appellant was tried before a jury, which assessed his punishment at thirty (30) years in the Texas Department of Corrections.

In his second ground of error, appellant complains of the admission into evidence of six extraneous offenses. Appellant was convicted of aggravated sexual abuse on the female complainant. All of the extraneous offenses constituted similar assaults on women, committed both before and after the instant offense. The sufficiency of the evidence to sustain the conviction is not challenged. However, a recitation of the evidence is necessary.

The complainant testified that on June 25, 1974, she was the assistant manager of an apartment complex. She stated that appellant came to the office and inquired about renting an apartment for himself and his wife. When the two went alone to an apartment, appellant grabbed the complainant and threatened her with a knife. He partially undressed her, fondled her breasts and forced her to kiss his penis, and then left. The State introduced into evidence a confession, signed by appellant, which was admitted without objection.

Appellant presented a defense of insanity. Psychologist Donald Reynolds testified on behalf of the defense, and stated that he first met appellant on February 3, 1975. Reynolds stated that he administered several psychological tests to appellant. During his testimony, he interpreted and discussed at length the test results. Reynolds testified that:

“[Appellant] is a person who often, if not usually, feels unable to cope very effectively with stresses placed upon him. He appears to have two main areas of difficulty: (1) In dealing with authority figures, and (2) in dealing with females . In dealing with [females], he may simply feel overwhelmed or isolated and in need of affection. When this is not forthcoming, he may tend to retreat into fantasy or act out, that is, engage in sexually unacceptable acts . . . the prominent symptoms displayed by Mr. Holley are fair to good adjustment in the absence of stress, that is, he gets along pretty well when he’s not stressed, followed by periods of acting out, which are totally alien to him when he’s not stressed, followed by guilt and often horror at what he has done . . . He is somewhat immature and has a great deal of anxiety as a persisting stress, that is, he feels anxiety much of the time, and it goes on as a persisting stress . One line of defense is daydreaming and fantasy. When that breaks down, he can’t contain the anxiety that he feels. He pulls back to another mode, which is acting out behavior, committing sexually unacceptable acts.”

Upon cross-examination, Reynolds expressed the opinion that, when appellant encountered certain stressful situations, he was unable to conform his conduct to the requirements of the law. He stated that, however, he did not know whether appellant was in a stressful situation on the date of the offense. Reynolds testified that if appellant had been under stress on that date, he would not have been able to conform his conduct to the law, but that if he was not under stress, he would have been so able. Reynolds further testified that appellant did not tell him specifically of any stressful situation which might have caused his behavior on the date of the offense and that his professional opinion was based primarily upon the test results rather than from information received from appellant.

Psychiatrist Dr. Richard Coons was also called to testify by the defense. He stated that appellant had related to him concerns about sex and his concern about his inability to impregnate his wife. Appellant had told Dr. Coons that he had been tested and found to have had a low sperm count or oligospermia. This oligospermatic condition had caused problems in his marriage, and appellant had been very concerned about it. Dr. Coons testified that, however, appellant’s wife had become pregnant in about June of 1974. Dr. Coons stated that this condition had previously been a source of stress for appellant.

Upon cross-examination, Dr. Coons testified that he had the impression that had appellant known that he could impregnate his wife, that he might not have committed “these offenses.”

Out of the presence of the jury, the prosecutor elicited testimony from Dr. Coons that appellant had informed him of the commission of four like offenses on February 19, 1974, and another two weeks later, and one more two weeks after that. Appellant had left Dr. Coons with the impression that the offenses had all occurred in February and March, before his wife became pregnant in June. The prosecutor then asked:

“Q. Now, had you been told of other offenses that occurred in the month of June, the month of August, the month of October, and the month of December 1974, would your feelings at that time as to his stressful situations be different?
“A. [Dr. Coons] Well, certainly the issue of whether or not he was oligos-permatic, or low on sperm, would not be — You know, not have the stressful weight that it had, having impregnated his wife.
“Q. Would this make a difference as to your feelings as to whether or not his actions were as a result of his feeling unable to impregnate his wife?
“A. I think that that is only a part of the reasons that what happened happened. You know, I don’t consider it to be the thing which caused him to do what he did. I think that there are a number of personality factors. I think — -you know, he described some marital difficulties and so forth, and all of these things together would, let’s say, be operative as stressful circumstances. Now — well, that’s — my opinion about, you know, about the final question would remain unchanged.
“Q. But would your opinion as to whether or not the Defendant was acting because of his inability to impregnate his wife change?
“A. Well, certainly that wouldn’t be an operative factor after she had become pregnant.
“Q. But he had told you that was an operative factor, is that correct?
“A. Yes, he related to me that the offenses occurred and related no offenses after the time his wife became pregnant.”

Appellant’s objection to the admission of the extraneous offenses was overruled. In the presence of the jury, the prosecutor then elicited testimony from Dr. Coons concerning the fact that appellant had told him about the offenses committed in February and March. The prosecutor then asked whether appellant told Dr. Coons about offenses committed in June, August, October and December of 1974. Dr. Coons stated that appellant had not told him about any such offenses. Dr. Coons then testified that he did not believe that on the date of the offense appellant either did not know his conduct was wrong or that he was incapable of conforming his conduct to the requirements of the law.

On rebuttal, the State presented the testimony of six women, five of whom were assaulted by appellant in a like manner as they showed apartments to him. Appellant contends that the admission into evidence of these extraneous offenses constituted reversible error. We agree.

In Hines v. State, 571 S.W.2d 322 (Tex.Cr. App.1978), we reiterated that it is well established that an accused may not be tried for some collateral crime or for being a criminal generally. Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Halliburton v. State, 528 S.W.2d 216 (Tex.Cr.App.1975); Alvarez v. State, 511 S.W.2d 493 (Tex.Cr. App.1973). However, as we stated in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App. 1972), there are exceptions to this general prohibition against the use of extraneous offenses.

In Albrecht v. State, supra, this Court stated that:

“Evidence of extraneous offenses committed by the accused has been held admissible: (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. (2) To circumstantially prove identity where the state lacks direct evidence on this issue. (3) To prove scienter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself. (4) To prove malice or state of mind, when malice is an essential element of the state’s case and cannot be inferred from the criminal act. (5) To show the accused’s motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part. (6) To refute a defensive theory raised by the accused.”

In the instant case, none of the enumerated exceptions • are applicable. The complainant positively identified appellant as her assailant, and a confession of appellant’s guilt was introduced at trial. Neither motive, intent or state of mind was in issue. Further, we hold that the evidence of these extraneous offenses did not refute the defensive theory raised by appellant.

Appellant’s defensive theory was that he was insane at the time he committed the offense. He offered evidence that he had great difficulty in controlling his behavior when he was under stress. Dr. Coons testified that appellant’s oligospermatic condition was a source of stress for him. However, Dr. Coons testified that when appellant’s wife became pregnant in June this particular source of stress would have been removed.

The State now contends that the evidence of his attacks upon other women, committed after his wife became pregnant, rebutted his defense that at the time that he assaulted the complainant he was unable to conform his conduct to the law because he was under stress. This contention is untenable.

Dr. Reynolds testified generally as to appellant’s inability to handle stressful situations. Dr. Coons testified specifically that appellant’s oligospermatic condition was but one source of stress in his life. Thus, the fact that appellant committed further attacks upon women after this one source of stress was removed does not tend to prove that he was not under some particular stress at the time he committed the assault on the complainant. Thus, appellant’s further assaults on the women other than the complainant are not probative evidence of the presence or absence of sanity. Since the extraneous offenses are not probative of this issue of sanity, they should not have been admitted into evidence.

In Jamerson v. State, 550 S.W.2d 287 (Tex.Cr.App.1977), we held that the mere commission of extraneous criminal offenses by a defendant does not, in and of itself, tend to rebut a defensive theory of insanity at the time of another offense. The fact that a defendant commits or has committed numerous similar criminal acts does not tend to prove that he was sane.

We recognize, as did the dissenting opinion in Jamerson, the cases of Sanders v. State, 450 S.W.2d 871 (Tex.Cr.App.1970) and Sanders v. State, 449 S.W.2d 262 (Tex. Cr.App.1970). In each case, the defendant had raised the defense of insanity, claiming that he was under a psychomotor seizure at the time he committed each offense from which he appealed. Therein, we held that other offenses committed in close proximity were admissible to rebut the defense of insanity. We agree with the dissent in Jamerson, that these two cases should either be distinguished or overruled. Therefore, to the extent that these cases hold as an absolute rule that extraneous offenses are admissible to rebut a defense of insanity, they are overruled.

It is important to point out that we do not hold that extraneous offenses are never admissible to rebut a defensive theory of insanity. There may well be cases wherein such offenses may be probative of the presence or absence of sanity. However, the mere fact alone that other offenses were committed does not, by itself, tend to rebut a claim of insanity.

Since we find that the admission of the extraneous offenses in the instant case does not fall within any of the exceptions enunciated in Albrecht v. State, supra, we hold that the trial court erred in admitting them into evidence.

Although appellant’s guilt of the offense was established overwhelmingly, we cannot conclude that this error was harmless to him on the issue of punishment.

Accordingly, the judgment is reversed and the cause remanded.

      . We note that reference was made to “these offenses” and “these events” by the witness and the prosecutor. No objection to this plural form was voiced by appellant, however.

      . The sixth woman testified that appellant had grabbed her as she walked in her apartment complex.


author: ODOM, Judge. DOUGLAS, Judge,

text:
    John Kenneth CORTEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 56751.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 11, 1979.
    Rehearing En Banc Denied June 27, 1979.
    Mike Barclay, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Stephen J. Wilensky and Richard G. Worthy, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.

      Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for theft by check of services of a value of over $200 (V.T.C.A., Penal Code Secs. 31.04, 31.-06). Punishment was assessed at two years.

The conviction in this ease must be set aside because the evidence is insufficient to support the allegations in the indictment. The state alleged that appellant:

. . with intent to avoid payment for the tinting of plate glass windows with Sun-X Film No. F-88 Gold, a service that he knew was provided by Bill Grounder only for compensation, did intentionally and knowingly by deception secure performance of said service of the value of at least $200.00 but less than $10,000.00, by then and there issuing and passing a check on the Southern Bank and Trust Company of Garland, Texas, to the said Bill Grounder for the payment of $386.92 in money of the United States, which check was in the tenor following: [check set out in indictment] when the said John Kenneth Cortez [appellant], the issuer of said check, did not have sufficient funds in and on deposit with said bank for the payment in full of said check, as well as all other checks then outstanding, and thereafter said check was presented to said bank for payment and payment was refused by said bank because the said John Kenneth Cortez had no account as indicated by said check with said bank, said account having been closed prior to the issuance of said check,

This indictment was drawn under the following portions of Sec. 31.04, supra:

“(a) A person commits theft of service if, with intent to avoid payment for service that he knows is provided only for compensation:
“(1) he intentionally or knowingly secures performance of the service by deception. . . . ”

Sec. 31.01(2) defines “deception” as:

“(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
“(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;
“(C) preventing another from acquiring information likely to affect his judgment in the transaction;
“(D) selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record; or
“(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of interest or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.”

The indictment in this case alleged that the deception by which appellant secured performance of the service allegedly stolen was accomplished by means of a certain check (see Sec. 31.06, supra). An examination of the definitions of “deception” in Sec. 31.01(2), as quoted above, reveals that in all but one instance (which is not pertinent here ) the deception must be such as is likely to affect the judgment of another in the transaction. Obviously any deception that occurs after the other person has completed performance of the service allegedly stolen would not meet this requirement: once the other person has completed the performance of his obligations in the transaction, any later deception would be incapable of affecting retrospectively his judgment in what he has already completed.

The facts of this case measured against the definition of deception reveal that appellant’s conduct of issuing and passing the check could not have affected the judgment of the complaining witness in the delivery of the services allegedly stolen, because the check was not issued and passed until after performance of the services had been completed. Although the contract for performance of those services included a promise by appellant to pay for them on completion, and this promise in the contract could have constituted deception under Sec. 31.01(2)(E), supra, the indictment did not allege deception by a promise to pay that appellant did not intend to perform or knew would not be performed. The indictment alleged deception by issuing and passing a certain check. As shown above, the evidence reveals that this alleged conduct could not be deception that secured performance of the allegedly stolen services in this case. Therefore the evidence is insufficient.

The conviction is set aside and the judgment is reformed to show an acquittal.

DOUGLAS, Judge,

dissenting.

The majority reverses this case because the evidence is insufficient to support the conviction for the offense charged in the indictment, and yet they have neglected to set out what the facts were.

The record reflects that Bill Grounder, manager of Sun-X Glass Tinting Company, was asked by appellant about tinting the glass in appellant’s office at the Cuzzins Dinner Club in Dallas. A sales agreement was signed by appellant and the work was performed by Grounder on September 20, 1974. Later that day, after the work was completed, appellant wrote Grounder a check for $386.92. The check was refused payment by Southern Bank and Trust of Garland, the drawee, and was returned to Grounder with the bank’s notation “account closed.”

Carl Hendrix, vice-president of Southern Bank & Trust, testified that appellant opened the checking account in question on September 10, 1974, under the trade name of Cuzzins Dinner Club and made an initial deposit of $678.92. Another deposit of $547.15 was made on September 11, 1974. The bank’s records which were admitted into evidence show withdrawals of $300 on September 10,1974, and $926.07 on September 11, 1974. Both Hendrix and William Stokes, a former vice-president of the bank, testified that appellant had applied for a loan on September 10,1974. Stokes related that the loan application was denied on September 11, 1974. On the same day, at appellant’s request, Stokes personally closed the checking account. This was nine days before Grounder performed his services for appellant and received the check in payment.

The indictment recites that the appellant “. . . with intent to avoid payment for the tinting of plate glass windows with Sun-X Film No. F-88 Gold, a service that he knew was provided by Bill Grounder only for compensation, did intentionally and knowingly by deception secure performance of said service of the value of at least $200.00 but less than $10,000.00, by then and there issuing and passing a check on the Southern Bank and Trust Company of Garland, Texas, to the said Bill Grounder for the payment of $386.92 in money of the United States, which check was in the tenor following: [check set out in indictment] when the said John Kenneth Cortez [appellant], the issuer of said check, did not have sufficient funds in and on deposit with said bank for the payment in full of said check, as well as all other checks then outstanding, and thereafter said check was presented to said bank for payment and payment was refused by said bank because the said John Kenneth Cortez had no account as indicated by said check with said bank, said account having been closed prior to the issuance of said cheek, . . .”

The majority holds that there was no violation of V.T.C.A., Penal Code, Section 31.04, alleged in the indictment or proven by the evidence because the deception occurred only after the performance of the service had been completed. This conclusion is contrary to the record.

V.T.C.A., Penal Code, Section 31.01(2)(A), defines “deception” as:

. “(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true.”

The contract signed by appellant and Grounder prior to the performance of the services states that payment is to be made “on completion.” The work consumed part of one day and the check was written by appellant and given to Grounder later that day, September 20, 1974. The checking account had been closed on September 11, 1974. Therefore, it is obvious that before any services were rendered appellant had by his words and conduct given the complainant a false impression of fact that he would be paid, i. e., that appellant’s method of payment would be good. These words and conduct by appellant very likely affected Grounder’s judgment in the transaction. Moreover, the evidence is clear that at the time of contracting appellant did not believe that his check would be good.

This Court is bound to view the evidence in a light most favorable to the verdict. The record before us shows that appellant’s deception began before the check was given to the complainant. No reasonable businessman would have entered the contract knowing he would receive a bad check in return. The indictment was sufficient to charge this offense and the evidence is sufficient under Sections 31.04 and 31.01(2)(A) to sustain the conviction.

The judgment should be affirmed.

      . Sec. 31.01(2)(D) creates an affirmative obligation to disclose legal impediments to the enjoyment of property when transferring it.

      . Nota bene that proof of deception under Sec. 31.01(2)(E) requires more evidence of intent or knowledge than the mere failure to perform the promise in issue.


author: CLINTON, Judge.

text:
    James Edward WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 54593.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 13, 1979.

      Edward A. Stapleton, III, on appeal only, Lewisville, for appellant.
    John E. Lawhon, County Atty. and Howard E. Watt, Asst. County Atty., Denton, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

The offense is theft over $200.00. Punishment was assessed at 10 years. The controlling issue is the voluntariness of the confession introduced at trial.

This case presents an unusual fact situation involving a plea bargain. Appellant was originally charged in a two count indictment with burglary and theft. The case had proceeded as far as voir dire of the jury when plea negotiations were conducted in the trial judge’s chambers. Appellant requested the opportunity to take a polygraph examination, but the prosecution would agree only if appellant would first plead guilty to the burglary. A bargain was struck which provided that a guilty plea would be entered, a “stipulation” would be signed, and then a polygraph test would be given. If appellant passed the examination, then the State would join in a motion for new trial. Although the record is sketchy as to the exact events following the guilty plea, it appears that the polygraph test was given and a new trial was granted. Appellant was reindicted for theft, and the stipulation was introduced at that trial.

In a hearing on appellant’s pretrial motion to bar admission of the stipulation at his trial for theft, another aspect of the burglary plea bargain was discussed. The prosecutor that negotiated the plea testified about the agreement as to the use of the stipulation:

“Q: And did you and Mr. Griffin have any agreements as to the use of that judicial stipulation in the event of a new trial?
A: Yes, sir. Mr. Griffin and I did have an agreement in the use to be made of the stipulation in the event that the defendant passed the polygraph and a new trial was granted.
Q: What was that?
A: And that agreement was that the state would not use that stipulation if the defendant passed the polygraph and received a new trial as a result of passing the polygraph.”

It is appellant’s contention that the stipulation was an involuntary confession because it was obtained by a promise of benefit. We agree that the stipulation was a confession, and that the circumstances in which it was obtained made it inadmissible as a matter of law. We need not consider whether this confession was obtained in violation of appellant’s constitutional rights, because state law prohibits its use at trial.

The primary case is Fisher v. State, 379 S.W.2d 900 (Tex.Cr.App.1964). That decision set out a four part test to be applied in such situations. Before a confession will be rendered inadmissible under this theory, the promise must: (1) be of some benefit to the defendant; (2) be positive; (3) be made or sanctioned by a person in authority; and, (4) be of such character as would be likely to influence the defendant to speak untruthfully. Fisher at 902. We will discuss each of these points separately.

The requirement that the promise be beneficial to the defendant is simple to apply. Appellant was promised that he would be given the opportunity to take the polygraph test with the chance of setting aside the guilty plea and the stipulation, and also the possibility of having all charges dropped. The direct benefit promised was that which appellant requested: the opportunity to take a polygraph test. The potential benefit was possible discharge if he was found to be truthful during the examination.

The second requirement is that the promise be “positive” rather than equivocal. The record shows that the promise was positive that appellant would be allowed to take the polygraph as he desired. He was also given the unequivocal promise that if he passed the test, the State would join the motion for new trial and the stipulation would be vitiated.

The third step is that the promise be made or sanctioned by a person in authority. Here the promise was made by the prosecutor, a person “in authority.” Further, the negotiations were conducted in the trial judge’s chambers, apparently in his presence, and the promise was at least tacitly sanctioned by him.

Finally, the promise must be of such character “as would be likely to influence the defendant to speak untruthfully.” Fisher, supra, at 902. Ascertaining the applicability of this part of the test is more difficult, but not especially so on the facts of the case before us. The question is whether the circumstances of the promise given made the defendant “inclined to admit a crime he had not committed . . .”

Fisher, supra, at 902.

The testimony of all the parties involved in the plea bargain showed that appellant had no intention of pleading guilty until he was assured that he would be allowed to take the polygraph as he had requested. He was also promised that if he told the truth on that examination, then any confession or “stipulation” he made in court would be disregarded, and his conviction would be set aside. Under those circumstances a person intending to tell the truth on the exam would have nothing to lose by confessing, but would have the possibility of the ultimate gain of having the charges dismissed. This case differs importantly from the usual plea bargain situation in which the defendant accepts a sure conviction with whatever accompanying punishment in exchange for a guilty plea. While we do not say that such a plea bargain would never come within the test of Fisher, we presume that a defendant would be much less likely to admit to a crime not performed when he is faced with a sure conviction, albeit a less serious conviction than the offense charged. Appellant, however, faced a situation in which a truthful polygraph examination would result in no worse of a position for himself than prior to the confession, but could potentially secure his release. Such circumstances would very likely amount to an irresistible pressure to sign a confession even though the defendant is innocent.

Involuntary confessions have been universally condemned as inherently unreliable and a violation of due process of law. The confession obtained in this case suffers from both defects, and its admission was prejudicial error. The process of plea bargaining is probably a necessary part of our criminal justice system, but it should not be allowed at the heavy risk of enticing the innocent into confessing.

For these reasons the judgment is reversed and the cause is remanded.

DALLY and W. C. DAVIS, JJ., concur in result.

      . The “stipulation” signed by appellant was in part as follows:
      “On July 14, 1975, I did then and there knowingly and intentionally, without the effective consent of Sam Ferris, the owner thereof, enter a building not then and there open to the public, with intent to commit theft, to-wit: with intent then and there to obtain property unlawfully from Sam Ferris, the owner of said property, and with intent to deprive the said owner of said property, as alleged in the indictment.”

      . Appellant’s counsel on the burglary charge testified that his understanding of the plea bargain was that if appellant passed the polygraph, the charges would be dismissed after the motion for new trial was granted. Appellant testified that his understanding was that “if I passed the polygraph, it would be set aside, the conviction.”


text:
    Ricky Charles MALOY, Appellant, v. The STATE of Texas, Appellee.
    No. 55794.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 13, 1979.

      Douglas H. Parks, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., William M. Lamb and James D. Burnham, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for murder wherein the punishment was assessed at ninety-nine (99) years. The sufficiency of the evidence is not challenged. The record reflects that appellant shot the deceased, a convenience store clerk, while in the course of robbing him at a Stop-and-Go convenience store.

A confession of guilt was introduced at trial which constituted the major portion of the State’s case against appellant. In his confession, appellant admitted:

“On Thursday night, May 20,1976, Henry Lee Hines came to my apartment and we played some records. While we were playing records, Henry asked me if I wanted to make some money. I said I needed some money and Henry told me about a Stop and Go Grocery store on Lemmon Avenue and suggested that I rob the store. Henry said that he couldn’t rob the store because he went in the store all the time and the guy in the store that worked there knew him. Henry gave me a .32 calibre pistol that was chrome plated and told me to use the pistol to rob the guy at the Stop and Go. I took the pistol from Henry and Henry told me to wait until I got in the store and to cock the pistol to scare the guy who worked there. Henry told me that he would wait across the street and that we would run to his apartment when I finished robbing the guy. I went in the store and cocked the pistol and told the guy that this was a robbery. The guy gave me a bunch of money and laid some of the money on the counter then leaned over behind the counter. I could see the top of the guy’s head and when the guy started to raise up, I had the gun pointed at him. I thought the guy probably had a pistol behind the counter and when he raised up, it scared me and I jumped and the pistol went off and shot the guy in the top of the head. I grabbed the rest of the money off the counter and ran out the front door. Henry was waiting for me across the street on Lemmon. We ran to his apartment and counted the money. We had $76.00. I kept $40.00 and Henry took $36.00. I told Henry that I shot the guy in the store and Henry told me to forget about it and then he took me home. I gave the pistol back to Henry before he took me home.”

In his first ground of error, appellant contends that the trial court erred in admitting this confession into evidence, as it was obtained as a result of an illegal, warrant-less arrest.

The record reflects that on May 24, 1976, three days after the instant offense, Police Officer W. M. Parker executed an affidavit for a search warrant for the residence of Henry Hines, in order to seize a .32 caliber chrome plated automatic pistol. The affidavit recited that Officer Parker had received information from a reliable informant that:

“Henry Hines resides in apartment 206 of the Residence Apartments located at 3328 Cedarplaza Lane in the City of Dallas. That this informant has been inside this apartment within the past eighteen (18) hours and has seen Henry Hines and a black male approximately 28 years of age and a black male approximately 25 years of age sitting in this apartment and discussing the robbery of the Stop and Go Grocery Store which is located at 5328 Lemmon Avenue. That while in this apartment, Henry Hines told this informant that his (Henry Hines’) pistol was used to kill the clerk in the store (John Robert Baustista) while the robbery was being committed. That while inside this apartment, Henry Hines showed this informant a chrome plated .32 automatic pistol which he (Henry Hines) had tucked inside the waistband of his (Henry Hines’) trousers.”

The affiant then stated that he personally ascertained that a robbery at that Stop and Go Grocery had occurred a few days earlier and that during this robbery the store clerk, John Robert Baustista, was killed with a .32 caliber pistol. The affidavit also stated that the informant had described for him the make, model, year, color and license plate number of Hines’ car. Officer Parker had then checked at the address given and observed this vehicle parked there. He then checked the License Issuance and Driver Records Division of the Department of Public Safety and determined that this vehicle was registered to Henry L. Hines, of the above address.

A warrant was issued that evening. According to the testimony, Officers Parker and Landers executed the warrant that night, on the residence of Hines, which was about one and a half blocks from the Stop and Go. The .32 caliber pistol was found and Hines was arrested and taken to the police station. Upon questioning Hines, the officers first learned of appellant’s involvement in the offense. Hines made a statement, which was not introduced into the record, which implicated appellant as tjie killer. Further, the officers learned from Hines that the .32 caliber pistol, belonging to Hines, had been used in the commission of the offense. Hines gave the officers appellant’s name and address and told them that he was about to “bug out” or flee the city soon. Hines’ statement was taken sometime after midnight.

The officers then left the police station, heading towards the address which Hines had given them. It was approximately 3:00 to 3:30 a. m.; the testimony is undisputed that there was no magistrate available at that hour. The officers proceeded to appellant’s residence, where they found him and arrested him at about 3:30 a. m. He was taken to the police station, where he later made a statement admitting to the murder.

Article 14.04, Vernon’s Ann.C.C.P. provides:

“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without [a] warrant, pursue and arrest the accused.”

We conclude that, under these circumstances, the officers were justified in arresting appellant without first procuring a warrant. The officers had within their knowledge all of the information contained in the affidavit for the search warrant, which described the first-hand observations of the informant. Hines by his own statements had, to some extent, implicated himself in the offense; his inculpatory statements were made in the presence of the informant. Further, at least two other persons had been present in Hines’ apartment when he made statements connecting himself to the robbery-murder. The informant had seen the .32 caliber pistol in Hines’ possession and, according to the informant, Hines had specifically said that that gun, belonging to him, had been used to kill the store clerk, apparently mentioned by name.

Officer Parker had, himself, previous to his arrest of appellant, investigated and partly corroborated some of the information related by the informant. He had determined that, indeed, a robbery had occurred at the named store and that the named store clerk had been murdered during the course of this robbery; further, Officer Parker ascertained that the clerk had been killed with a .32 caliber pistol, the same kind as that seen in Hines’ possession. The officer had further verified details concerning identification of Hines’ automobile and address.

Upon executing the search warrant and finding Hines at his address, in possession of the .32 caliber pistol, the officers learned certain information from Hines. From Hines, the officers learned appellant’s name and address, and that Hines had loaned the .32 caliber pistol to appellant, and that appellant had committed the robbery and killed the store clerk, and that appellant was about to “bug out” or flee.

Given the detailed information known to the officers, many portions of which were independently verified, the officers, after finding Hines in possession of the pistol, were justified in concluding that, under these circumstances, Hines was a “credible person,” or a person worthy of belief, within the meaning of Article 14.04, supra. Hines’ statements to the officers implicated appellant and provided information about appellant’s intent to escape; thus, the officers acted reasonably and in accordance with Article 14.04 in determining that the immediate apprehension of appellant was necessary. Thus concluding that the immediate apprehension of appellant was necessary, and there being no magistrate available at that hour, the officers were justified in arresting appellant without a warrant. We find the evidence sufficient to show that the police officers had probable cause to arrest appellant and that, under these circumstances, they were justified in doing so without a warrant. See Jones v. State, 565 S.W.2d 934 (Tex.Cr.App.1978); Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App.1978); Loving v. State, 559 S.W.2d 363 (Tex.Cr. App.1977); Scott v. State, 531 S.W.2d 825 (Tex.Cr.App.1976); Reed v. State, 522 S.W.2d 916 (Tex.Cr.App.1975). Thus, it appears that appellant’s confession, made after his arrest, was not obtained as a result of an illegal arrest and detention. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in admitting his confession into evidence, as there was no compliance with Article 15.17, Vernon’s Ann.C.C.P.

Article 15.17 provides:

“In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county where the accused was arrested . . . [whereupon the magistrate shall warn the person arrested of his rights].”

The record reflects that appellant was not taken before a magistrate prior to his making a confession of guilt. However, appellant was taken into custody at 3:30 a. m., and the testimony of the officers was that no magistrate was available at that hour. The confession was given within about an hour of the arrest.

The fact that appellant was not taken before a magistrate prior to making a statement does not vitiate a confession that is otherwise properly obtained. Even an unreasonable delay in bringing an accused before a magistrate, of which we have no evidence here, will only render a confession inadmissible upon a showing of some causal connection between the delay and the making of the confession. Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977). There was no evidence of any unreasonable delay in the instant case, nor was there evidence of a causal connection between appellant not being taken before a magistrate within an hour of his arrest and the confession which he made. See Gollin v. State, 554 S.W.2d 683 (Tex.Cr.App.1977); Hester v. State, 544 S.W.2d 129 (Tex.Cr.App.1976); Myre v. State, supra. No error is shown.

Appellant further contends that the confession is inadmissible as there was no compliance with Article 38.22, Vernon’s Ann.C.C.P. This statute, prior to current amendments, provided that:

“1. The oral or written confession of a defendant made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible if:
⅜ ⅜ ⅜ 4* ⅜ ⅜
c. it be made in writing to some person who has warned the defendant from whom the statement is taken [of his statutory and constitutional rights] . . . ”

Appellant contends that since he did not receive the required warnings from the person to whom he made the confession, his statement was inadmissible at trial. The record reflects that appellant was arrested by Officers Parker and Landers, who transported him to the police station. There, Officer Parker read appellant his Miranda rights, and asked him if he understood them, to which appellant stated that he did. Both officers were present at that time. Officer Landers left for a short period of time, and returned to fill out his arrest report and the papers necessary in order to book appellant into the jail. Officer Parker was not present while this was being done. While Landers was filling out his report, “one thing led to another” and appellant confessed to having committed the instant offense. Landers wrote appellant’s statement in longhand, and then took it to be typed. After it was typed, both officers returned, and Parker read appellant his rights again, stopping after each one to determine if appellant fully understood.

Under these circumstances, we hold that the statement was taken in compliance with Article 38.22, supra. The fact that Landers’ partner, in his presence, actually read the warnings to appellant first, with Landers alone taking the statement, does not render the confession inadmissible under Art. 38.-22, supra. See Sutton v. State, 166 Tex. Cr.R. 580, 317 S.W.2d 58 (1958). No error is shown and this ground of error is overruled.

In his third ground of error, appellant contends that the trial court erred in refusing to grant his motion for a mistrial, after improper argument by the prosecutor. At the punishment phase of the trial, the prosecutor argued:

“And what do you think [the deceased] thought as he laid down there on the floor and felt the blood running out of him, because this wasn’t instantaneous; he had enough time to reach up there with his hand and feel where he’d been hit . . .”

Appellant objected that the argument that death was not instantaneous was outside the record. The trial court sustained the objection and instructed the jury to disregard the statement.

We find no error; the prosecutor’s statement was a reasonable deduction from the evidence, considering the testimony that the deceased was shot in the head and was discovered lying on the floor with blood on his hands. See Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977); Ramirez v. State, 543 S.W.2d 631 (Tex.Cr.App.1976); Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App. 1973). This ground of error is overruled.

The judgment is affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Amos Lee JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 57,103.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 13, 1979.

      John P. Knouse, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., William M. Lamb, Norman Kinne and Rider Scott, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for murder. The indictment alleged that appellant did “then and there, intending to cause serious bodily injury to an individual, Mary McCasland, commit an act clearly dangerous to human life, to-wit: did then and there intentionally strike the said Mary McCasland with a brick, thereby causing the death of said Mary McCasland . .” A jury found appellant guilty and assessed his punishment at 99 years in the Texas Department of Corrections.

In two grounds of error, appellant challenges the sufficiency of the evidence to sustain the conviction. He first contends that the evidence is insufficient to show that appellant was the deceased’s assailant.

At trial, Dallas Police Officer J. L. Morgan testified that in the early morning of August 16, 1975, he was on patrol. He received a radio dispatch and went to a residence. He observed the deceased, a sixty-five to sixty-six year old woman, sitting, wearing only a towel. He testified that she had a large laceration on her upper chest, a large bruise and laceration on her right cheek, and a large laceration on the top of her head. She was unable to walk and was very upset and excited. He testified, without objection, that she related to him that late that evening a young black male had knocked at her door and said that “Tammy” (later shown to be a neighbor) had sent him to borrow some baking soda, and that he was Tammy’s cousin. The deceased related that she got the baking soda and stuck it through the door to give to him, when he grabbed her and forced his way inside. According to the deceased, the assailant threatened to kill her, and then struck her three times on the chest, face, and head with a brick. She related that she was knocked down, but then got up, and the assailant knocked her down again. After locking the front door, the assailant had knocked her down again and got a long kitchen fork out of the kitchen and held it on her. After shoving her to the floor again, according to the deceased, the assailant tore her clothes off and took his own clothing off; he then got a jar of Vaseline petroleum jelly from somewhere in the house, lubricated his penis, and raped her on the floor of the hallway. Officer Morgan testified that the deceased related that the assailant then demanded and took money from her, and then shoved her into a bedroom closet and pushed a large water cooler fan in front of the door. The deceased related that she lost consciousness for a while, and then forced the closet door open and crawled into the kitchen to call for help.

Officer Morgan testified that the deceased related that she did not know her assailant, but that he was a black male, about sixteen years old, about 5'10" tall, weighing about 160 pounds, clean shaven, with braided hair, wearing a tight chain around his neck with a cross on it. Officer Morgan testified that he observed blood on the floor in the hallway and by the front door. A jar of Vaseline, with the lid next to it, was found on the floor in the kitchen next to the hallway. The deceased was taken to the hospital, where she later died. Four fingerprints were taken at the scene, three of which were later identified as appellant’s.

Tammy Paul, sixteen years old, testified that she was a neighbor of the deceased, living down the street. She further testified that she had known appellant for a while, and that he had been to her house on various occasions. She stated that after she heard a partial description of the assailant who attacked the deceased she realized that it fit the description of appellant, and she related this to a neighbor. She further stated that on August 16th appellant’s hair was braided and he wore a necklace. Upon cross-examination, she stated that the description of the assailant’s height and weight did not match that of appellant.

Beatrice Johnson, another neighbor of the deceased, testified that she had seen appellant in the neighborhood before. She testified that on August 16th appellant’s hair was braided, but that on August 17th the braids were combed out.

Police Officer D. J. McDonald testified that on the basis of information received he obtained an arrest warrant for appellant. He stated that he looked for appellant numerous times.

Police Officer R. A. Hight testified that on November 10, 1975, he went to appellant’s residence and was admitted by his grandmother. He testified that he found appellant in a bedroom, hiding behind a bed, and arrested him. In his police arrest report, Officer Hight had reported that appellant was 5'6" tall, weighed 125 pounds, and at that time had a full Afro haircut and a mustache.

Helen Simpson, appellant’s grandmother, testified later during the trial, and stated that immediately prior to appellant’s arrest he had been missing for a month, and that no one knew where he had been. She further testified that on the date of the arrest, when the officers knocked at the door of the residence, appellant ran into the bedroom and hid behind the bed.

Dr. Norman Grant testified that he does examinations of rape victims at Parkland Hospital. He testified from the report of the doctor who examined the deceased and related that the deceased was found to have had severe injuries to her genitals. He further stated that motile sperm was found in her vagina.

Sarah Williams from the Southwest Institute of Forensic Science testified that she examined a vaginal smear of seminal fluid taken from the deceased. She determined that the seminal fluid was from a person who had type 0 blood and was a secreter. She further stated that she took a saliva sample from appellant and determined that he had type 0 blood and was a secreter. Therefore, the results of the two tests she conducted were consistent. She also testified that 34% of black males are secreters with blood type 0.

Retired Police Officer J. C. Day testified that he had been assigned to the fingerprint bureau of the Dallas Police Department. He examined the four fingerprints taken from the scene of the offense. He testified that he could identify a print taken from the Vaseline jar found at the scene as belonging to appellant; he could further identify a fingerprint and a palm print, both taken from the water cooler fan in the deceased’s home, as also belonging to appellant. The fourth fingerprint, taken from a kitchen counter top, was not appellant’s.

The defense presented witnesses who testified that appellant was not the height or weight of the assailant as described by the deceased. However, one witness testified that appellant always wore a necklace chain and that his hair was sometimes braided. Another witness testified that appellant did not wear a cross. The defense also presented the testimony of a private fingerprint examiner, who stated that the fourth fingerprint found on the counter top in the deceased’s house was not that of appellant, and that it was possibly that of another young black male.

Appellant testified in his own behalf and presented a defense of alibi. He testified that he knew Tammy Paul and that he had been to her house frequently. He testified that four days prior to the offense he had been in the deceased’s home, which was why his fingerprints were found there. He stated that he had needed money, and that he swept around her dog pen, after which she paid him. He testified that he had then asked to use her telephone and that she allowed him to come into her house. He stated that the telephone was in the hallway, sitting on top of the water cooler fan. He further stated that various other items sat on top of the water cooler fan, but that he did not know if there had been a Vaseline jar there also. He testified he touched the water cooler fan while using the telephone. Upon cross-examination, he stated that shoes he wore increased his height a few inches.

Upon rebuttal, the State called Melody McCasland, daughter-in-law of the deceased. She testified that the water cooler fan in the deceased’s house was moved from room to room, and that the deceased never sat anything on top of it, nor was it ever used as a shelf for things. She further testified that the telephone cord would not reach out into the hallway; further, the telephone was across the bedroom from the hallway, and it would have been impossible for it to have reached out into the hallway. She testified that the deceased kept a jar of Vaseline in her house but that it was kept in the bedroom or bathroom.

Upon review by this Court, the evidence must be viewed in light most favorable to the jury’s verdict. Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978); Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App. 1977); Clark v. State, 543 S.W.2d 125 (Tex. Cr.App.1976). We hold that the circumstantial evidence is sufficient to support the jury’s finding that appellant was the assailant of the deceased. While the physical description given by the deceased did not perfectly match that of appellant, there were certainly many similarities. Appellant was the same age as the assailant was estimated to have been. The assailant was described as taller and heavier than appellant-; however, the evidence showed that the deceased was a 65 to 66 year old woman who was only 4'11" tall, who had suffered an extremely brutal and vicious attack. The deceased had serious injuries and was very upset and excited after the attack. Thus, the jury might well have concluded that she overestimated the size of her attacker. Further, according to appellant’s own testimony, he sometimes wore shoes which elevated his height several inches. The assailant was described as having braided hair; appellant had worn his hair braided, until the day after the offense was committed, when he unbraided it. The assailant was said to have worn a necklace; testimony showed that appellant wore a chain necklace. Appellant was shown to have disappeared for a month prior to his arrest, and no one, including his relatives, knew where he was. When the police officers arrived at his grandmother’s residence, he ran into the bedroom and hid from them, between the wall and the bed. Appellant was shown to have the same blood type and secreter factor as the attacker who raped the deceased. The evidence indicated that the assailant had touched the Vaseline jar and the water cooler fan in the deceased’s house. The strongest evidence introduced showed that appellant’s fingerprints were found in three places in the deceased’s house, in two places on the water cooler fan and on the Vaseline jar found on the floor next to the hallway.

Appellant testified to an alibi defense; however, no other witnesses corroborated this. He offered an explanation of how his fingerprints came to be on the water cooler fan. However, the testimony of the deceased’s daughter-in-law, who was familiar with her house, was that neither the telephone nor anything else was ever placed on top of the water cooler fan, and that the telephone could not have reached to the top of the fan in the hallway as appellant said it had. Appellant offered no explanation as to why his fingerprint was found on the jar of Vaseline. Considering the record as a whole and viewing it in the light most favorable to the verdict, we find the circumstantial evidence sufficient to support the conviction. This ground of error is overruled.

In his second ground of error, appellant contends that the evidence is insufficient to show that the injuries inflicted upon the deceased during the attack were the cause of her death.

Dr. David Ammons testified that he saw the deceased on August 16th, after she was admitted to Parkland Hospital. He testified as to her injuries when she was admitted to the hospital, to the deterioration of her condition during the following weeks, and to the cause of her death, which occurred on September 1, 1975. When admitted to the hospital, the deceased had multiple contusions, bruises and lacerations over her face, scalp, chest, thigh and knee; she also had a fractured pelvis and a mild concussion. It was determined also that the deceased had a diabetic condition. It was also determined that she may have had an aspiration pneumonia, a chemical pneumonia caused by the aspiration of vomit into the lungs. She subsequently developed “hospital-acquired pneumonia,” since the chemical pneumonia made her lungs susceptible to a bacterial invasion. Her condition steadily worsened during her hospitalization. Along with respiratory failure, she developed renal failure, possibly caused by her hypertensive episode or shock. From her pneumonia, she also developed sepsis, which is a total body infection. This led to some gangrene in her extremities. She “had a progressive downhill course from several hours after she was admitted.” Her injuries at the time of her admission to the hospital were consistent with having been struck with a brick with great force.

Dr. Ammons testified that the act of striking someone with a brick is an act clearly dangerous to human life and an act which would, in all probability, cause serious bodily injury. He further testified that a few hours after her admission the deceased went into very severe shock, partly caused by the internal bleeding due to the fractured pelvis. He stated that she had told doctors that she had been unconscious for a period of time and that she had vomited twice. He testified, however, that he had no way of knowing if the chemical pneumonia was caused from an aspiration of the gastric contents if she vomited while unconscious. However, he thought that this was a possibility.

The prosecutor asked:

“Q. Now, is it your opinion that although the cause of death at the time that she actually died, that you could write it down and say well, she died of pneumonia, would that be right?
“A. [Dr. Ammons] She died of complications of pneumonia.
“Q. [Prosecutor] Complications?
“A. That’s right .
* * * * * *
“Q. But when you trace it all back, it all goes back to this beating, does it not?
“A. I think that that’s very reasonable to say that the whole course of events that ultimately led to her death on September the 1st began when she was beaten and sustained multiple injuries that caused her body defenses and reflexes and things to be knocked out of whack so that she just could not tolerate [the trauma] . . . Some people live and are able to — -we can tide them over until their body defenses and things come back around, but she couldn’t.
******
“Q. In your opinion — well, would it be fair to say but for being beaten with a brick, she wouldn’t have suffered all these other things before she died?
“A. I think that that’s very reasonable to say that, yes, definitely, all of her problems stemmed from being beaten with a brick.” (Emphasis added)

Dr. Ammons further testified unequivoca-bly that the trauma which the deceased sustained was a lethal injury to her.

We hold that the evidence is sufficient to prove that the acts of appellant in beating the deceased caused her death. V.T.C.A. Penal Code, Section 6.04(a), provides:

“A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.”

In Turner v. State, 505 S.W.2d 558 (Tex.Cr. App.1974), we were confronted with a situation where the defendant had shot the deceased, who, while hospitalized, developed pneumonia and died. In holding that the evidence was sufficient to show that the defendant caused this death, we quoted:

“If a wound causes a disease which produces death and there is no evidence of gross neglect or improper treatment, the death is imputable to the wound.” 4 Branch’s Ann.P.C., 2d ed., Sec. 2033, p. 345.

In Wilson v. State, 136 Tex.Cr.R. 590, 126 S.W.2d 977 (1939), the deceased died as a result of pneumonia, which we held was caused by the defendant’s infliction of injuries upon the deceased. We quoted from Powell v. State, 13 Tex.App. 244 (1882):

“It is an ancient and well settled principle of the law of homicides that if a wound causes a disease which produces death, the death is imputable to the wound.”

In Wright v. State, 388 S.W.2d 703 (Tex.Cr. App.1965), it was held that if the act of the defendant alleged in the indictment contributed to the death of the deceased, he is responsible, although there may have been concurring causes. See also, Knight v. State, 538 S.W.2d 101 (Tex.Cr.App.1975); Gonzales v. State, 505 S.W.2d 819 (Tex.Cr. App.1974).

In the instant case, Dr. Ammons testified that the deceased died of complications of pneumonia, all of which were traceable to the injuries she sustained during the beating. Further, he testified that all of the medical problems which he related stemmed from the beating she sustained. We hold that the evidence is sufficient to show that the beating inflicted by appellant upon the deceased was the cause of all of the complications the deceased suffered which eventually caused her death. This ground of error is overruled.

In his third ground of error, appellant contends that the trial court erred in overruling his objection to the prosecutor’s argument outside the record during final arguments. The argument centered around a fingerprint found in the home of the deceased which the evidence showed was not that of appellant.

The prosecutor argued:

“State’s Exhibit Number 11 is not the defendant’s fingerprint, we’ll admit that to you, it’s not his fingerprint. And Mr. Miller [defense counsel] says the District Attorney’s Office hasn’t done anything with this fingerprint. What would he have me do with this fingerprint? Compare it with the millions that are on file in the Central Office of the Federal Bureau of Investigation and see if it comes out to be anybody’s? I’ll tell you right now that’s not possible.
“MR. MILLER: Objection, Your Honor, that’s outside the record and the District Attorney’s personal opinion—
“MR. KINNE [Prosecutor] (interposing) Well, I’m just answering what he said.
“THE COURT: He has a right to answer your argument.”

The record reflects that defense counsel had previously argued to the jury:

“The fingerprints, now, they only matched one, they never made any attempt to match State’s Exhibit Number 11 with anybody in the world . ******
“[Fingerprints that the District Attorney has never, and God knows why, has never done anything with except say ‘they are unidentified,’ that’s all, that’s all they have done.”

The arguments by both parties as to what could or could not be done with the unidentified fingerprint were outside the record. Appellant is correct that it is improper for the prosecution, in argument, to refer to matters outside the record. Alejandro v. State, 493 S.W.2d 230 (Tex.Cr. App.1973). However, in the instant case, the prosecutor’s argument was invited by defense counsel. Hefley v. State, 489 S.W.2d 115 (Tex.Cr.App.1973); see also Jones v. State, 520 S.W.2d 755 (Tex.Cr.App. 1975); Allen v. State, 513 S.W.2d 556 (Tex. Cr.App.1974). If an argument is invited, then it is not improper and, therefore, does not constitute error. Hill v. State, 518 S.W.2d 810 (Tex.Cr.App.1975). See also, Landers v. State, 550 S.W.2d 272 (Tex.Cr. App.1977). No error is shown.

The judgment is affirmed.