author: DALLY, Commissioner. ROBERTS, Judge,

text:
    Richard J. BROOKS, Appellant, v. The STATE of Texas, Appellee.
    No. 52700.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Rehearing Denied April 13, 1977.

      Marvin B. Zimmerman, San Antonio, for appellant.
    Ted Butler, Dist. Atty., G. E. Wilcox, John William Harris, Jr., Susan D. Reed, Asst. Criminal Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for voluntary manslaughter; V.T.C.A. Penal Code, Sec. 19.04; the punishment, which is enhanced by a prior felony conviction, is imprisonment for 10 years.

In each of four grounds of error complaint is made concerning the court’s instructions to the jury. The appellant asserts that the court erred in failing to respond to his timely objections to the court’s charge or to his timely tendered specially requested instructions. The court refused to charge the jury on (1) the lesser included offense of involuntary manslaughter, (2) self-defense from apparent as well as actual danger, (3) defense of a third person, and (4) a presumption arising from the deceased’s use of a deadly weapon.

A brief summary of the facts will be helpful in understanding the appellant’s contentions. Since the appellant does not challenge the sufficiency of the evidence, and since all of the appellant’s complaints are of the court’s refusal to submit instructions to the jury, we will closely follow the appellant’s version of the facts as stated in his brief and as supported by the record.

At approximately 3:00 a. m. on September 21,1974, at the International Airport in San Antonio, Thomas L. Meredith was killed by a single gunshot while struggling with the appellant. Sometime prior to his death Meredith, his brother Ricky Lynn Meredith, and a friend, Gerald Barrett, were negotiating for the purchase of a quantity of marihuana. Richard Flores, the appellant’s cousin, was a “middleman” in the transaction. Ernie Dominquez, from whom they were attempting to purchase the marihuana, took $2,400 of the purchasers’ money and did not deliver any marihuana. Thomas Meredith, his brother, and their friend held Richard Flores responsible for the “rip off,” and they were holding Flores prisoner until they received $2,400 for their loss in the marihuana venture. The appellant, who was in Florida, was told in a telephone conversation that if the $2,400 was not received by the Meredith brothers and Barrett they would kill Flores. The appellant, with the required ransom, flew from Florida to San Antonio; he arrived shortly before 3:00 a. m. on September 21, 1974.

The appellant was met at the airport by Ricky Meredith, Gary Barrett, and Richard Flores. They went to Barrett’s automobile, then Thomas Meredith and the appellant went to an auto rental agency counter where the appellant rented an automobile. The appellant and Thomas Meredith left the terminal and walked toward the automobile occupied by Ricky Meredith, Barrett, and Flores. When they reached the automobile Thomas Meredith reached into the automobile and was handed a pistol. He turned toward the appellant, who began backing up; Thomas Meredith advanced toward the appellant and grabbed the appellant’s suitcase; a struggle resulted. During the struggle Meredith was shot, and the appellant gained control of the pistol.

The appellant was charged with committing the offense of murder, but the jury found that he was guilty of the lesser included offense of voluntary manslaughter. The appellant argues that the court erroneously refused to instruct the jury on the law of involuntary manslaughter. Since involuntary manslaughter requires a lesser culpable mental state on the part of the actor, it is by definition a lesser included offense of murder and of voluntary manslaughter. See Article 37.09, V.A.C.C.P. The appellant’s counsel carefully preserved the alleged error for review. It is left for us to determine whether the evidence raises the issue of involuntary manslaughter so as to have required the submission to the jury the instruction sought.

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

Recklessly is defined in V.T.C.A. Penal Code, Sec. 6.03(c) as follows:

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

The appellant directs our attention to his own testimony in the record which he says supports his request for the charge on involuntary manslaughter. The appellant fairly well summarizes his lengthy testimony and cross-examination in the following answers he made to three questions during his cross-examination:

“A. Okay, let me try to explain it. I wasn’t pointing the pistol at Thomas Meredith. After the struggle, like I said, I was trying to defend myself. When I ended up with the pistol, the pistol was pointing at Mr. Meredith. But I did not point it at him. It was just after the struggle it ended up in my possession, and it was pointed towards Mr. Meredith.
⅝ ⅜ ⅜ ⅜! ⅝ ⅜
“A. I must be receiving it wrong, because it sounds like you’re asking me as to whether I personally was pointing the pistol instead of asking me whether or not the pistol was pointed at Thomas Meredith. And I’ve answered yes, that it was, and yes, the gun was in my possession at that time. And no, sir, I did not point the gun at Tommy Meredith. After the struggle, the gun was in my possession and yes, the gun was pointed towards him.
“A. Okay. Now, as far as the killing part, I didn’t know that Mr. Meredith was dead at the time or that he did die right then. Like I tried to explain, during the struggle, like I said, I was in fear of my life. And I was trying to protect my life, and I was struggling with the kidnapper or Mr. Meredith or the gentleman to try to obtain possession of the weapon to keep this man from killing me. And this is all I could see right at that moment, that he was going to take my life. And I was trying to defend my life, and I struggled with the gentleman. Then I heard the shot, and I didn’t turn around and point it at him. I didn’t wait until I was down here and shot him, but during the struggle, that’s when I heard the shot.”

It appears the appellant testified that to keep Meredith from killing him, he was trying to obtain possession of the pistol, and during the struggle to get possession of the pistol it was unintentionally pointed and fired in the direction of Meredith.

When we attempt to apply the definition of recklessly found in the new Penal Code, we can find no evidence that the appellant acted in a reckless manner; i. e., there is no evidence that the appellant was aware of, but consciously disregarded, a substantial and unjustifiable risk that circumstances existed or the result would occur with respect to circumstances surrounding his conduct or the results of his conduct. The trial court did not err in refusing to submit to the jury the instruction on the law of involuntary manslaughter.

If raised by the evidence, on timely request, a defendant is entitled to have the jury instructed that he may defend himself from apparent as well as actual danger as viewed from his standpoint at the time. This facet of the law of self-defense was not changed by the new Penal Code. Jones v. State, 544 S.W.2d 139 (Tex.Cr.App.1976). Although the appellant’s counsel carefully preserved the alleged error, the court in this case did not err in refusing to submit the requested charge, since the issue of apparent danger was not raised by the evidence. Here, the appellant’s testimony is that he was in actual danger when he was attacked by Meredith. The appellant testified that Meredith was advancing toward him and that he was trying to take the pistol away from Meredith when Meredith was shot. This presented actual rather than apparent danger. In Jones v. State, supra, the deceased was unarmed, but the defendant testified that it appeared to him at the time that the deceased was armed and would attack him with a knife or a gun. It is not error to restrict the right of self-defense to an actual attack if the only theory of self-defense presented by the testimony is an actual attack and the danger, if there was danger, was patent and real to the defendant. See 4 Branch’s Penal Code, 2d Ed. 428, Sec. 2106, where many cases are cited in support of this rule, including Allala v. State, 157 Tex.Cr.R. 458, 250 S.W.2d 207 (1952); Jones v. State, 89 Tex.Cr.R. 577, 232 S.W. 847 (1921); although these cases were decided under the former Penal Codes the new Penal Code has not changed the law in this respect.

Again, although the alleged error was carefully preserved for review, the court did not err in refusing to instruct the jury on the law of defense of a third person. Before the use of force or deadly force against another to protect a third person is justified, one of the requirements is that the actor reasonably believe that his intervention is immediately necessary to protect the third person. V.T.C.A. Penal Code, Sec. 9.33(2); see Morgan v. State, 545 S.W.2d 811, (Tex.Cr.App., decided January 19, 1977); Conn v. State, 143 Tex.Cr.R. 367,158 S.W.2d 503 (1941). The appellant in this case had come from Florida to pay ransom for his cousin Richard Flores, who was allegedly being held by the deceased and others until they were paid some money that they had allegedly lost in a transaction in which they were attempting to purchase marihuana. The appellant had also testified that threats of death had been made toward Richard Flores and himself. However, there is no evidence that the deceased was making an attack or threatening an immediate attack upon Richard Flores. The deceased’s attack, according to the appellant’s testimony, was directed only toward the appellant. In these circumstances it does not appear that the evidence could have led the appellant to reasonably believe that his intervention was immediately necessary to protect Flores; therefore, since the evidence did not raise the issue, the court did not err in refusing to submit the requested charge.

The remaining contention is that the court erred in failing to submit a charge that:

“A person is presumed to intend that which is the necessary or probable consequences of his acts, unless the contrary appears. A firearm is a deadly weapon. Deadly force is any force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing death or serious bodily injury.”

Article 1223, V.A.P.C. (1925) and the cases interpreting this statute required the court to charge the jury that when a homicide takes place to prevent murder, if the weapon used by the party attempting to commit the murder is such as would have been calculated to produce that result, it is to be presumed the person using the weapon intended to murder or inflict the injury. However, Article 1223, V.A.P.C. (1925) was repealed by the new Penal Code, which became effective January 1, 1974, before the alleged offense in this case was committed; no similar provision appears in the new Penal Code. The appellant argues that V.T.C.A. Penal Code, Sections 1.07(a)(ll)(A), 9.01(3), and 22.05(a) and (b) may be combined and construed to require a charge similar to that required by Article 1223, V.A.P.C. (1925); we disagree. Although V.T.C.A. Penal Code, Section 2.05 provides for instructing the jury, when the Penal Code or another penal law establishes a presumption with respect to any fact, it has no application here, because there is now no presumption in the new Penal Code as that provided by Article 1223, V.A.P.C. (1925).

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge,

concurring.

Article 1223 of our former Penal Code provided:

“When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.”

As we said in Sistrunk v. State, 486 S.W.2d 304, 305:

“The purpose of Article 1223, supra, is to require that the jury be told by the trial court that if a deceased or injured party was making an attack upon a defendant with a deadly weapon or with a weapon which from the manner of its use was calculated to produce death or serious bodily injury, the law presumes that the deceased, or injured party, intended either to kill or to inflict serious bodily injury on the accused.”

Accord: Borroum v. State, 168 Tex.Cr.R. 552, 331 S.W.2d 314 (1960).

As Judge Davidson wrote in Borroum, the statute served an important function: It took “from the realm of speculation the intent of the deceased as an issue of fact and, under certain circumstances, fixe[d] his intent as a matter of law, and such intent [was] therefore binding upon the court and the jury.” Borruom v. State, supra, at 555, 331 S.W.2d, at 316. See also Middleton v. State, 147 Tex.Cr.R. 146, 179 S.W.2d 510 (1944) (on motion for rehearing); Smith v. State, 15 Tex.App. 338 (1884).

As a result of Article 1223, we had a rule of law which applied with equal force to the State and the defense. This was true because of the well-established rule that where a deadly weapon per se was used by the defendant an intent to kill was presumed. Art. 45, V.A.P.C. (1925); Short v. State, 119 Tex.Cr.R. 34, 45 S.W.2d 587 (1932); Davis v. State, 440 S.W.2d 291 (Tex.Cr.App. 1969).

Lamentably, the Legislature failed to include in our new Penal Code a provision like Article 1223. I am unable to understand the omission of such an important feature of our prior law, but I am bound to follow the law as enacted by the Legislature.

I reluctantly concur.

      . Accordingly, this Court held in Short v. State, supra, a prosecution for assault with intent to murder, that where the defendant shot the complainant with a pistol there was no need to define the phrase deadly weapon.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Charles Wayne JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 52875.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Rehearing Denied April 13, 1977.

      Jack 0. Herrington and Jim D. Lovett, on appeal, Clarksville, for appellant.
    Pat F. Beadle, County Atty., Clarksville, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for voluntary manslaughter. Punishment was assessed by the jury at ten years.

Appellant does not challenge the sufficiency of the evidence to support the conviction. The record reflects that on December 26, 1974, appellant and his wife were arguing in the presence of others. Appellant pulled a pistol from his pocket, two shots were fired, and Christine Rosser, appellant’s sister, was killed and appellant’s wife was wounded. The murder of Rosser is the gravamen of this prosecution.

Appellant challenges the sufficiency of the evidence to support the finding of a jury in a pretrial hearing that appellant was competent to stand trial.

This Court has consistently held that no appeal lies from a judgment rendered in a preliminary trial on the issue of competency to stand trial. See Knight v. State, Tex.Cr.App., 538 S.W.2d 101; Hassler v. State, Tex.Cr.App., 473 S.W.2d 513; Vardas v. State, Tex.Cr.App., 518 S.W.2d 826; Kalinee v. State, Tex.Cr.App., 500 S.W.2d 146, and cases there cited. A careful reading of the leading authorities generally relied upon as the historical basis of such position reveals that such cases did not address the question here presented. See Darnell v. State, 24 Tex.App. 6, 5 S.W. 522; Millikin v. Jeffrey, 108 Tex.Cr.R. 84, 299 S.W. 435; Holland v. State, 52 Tex.Cr.R. 160, 105 S.W. 812; Ex parte Morris, 96 Tex.Cr.R. 256, 257 S.W. 894; DeSilva v. State, 98 Tex.Cr.R. 499, 267 S.W. 271; Boehme v. State, 159 Tex.Cr.R. 358, 264 S.W.2d 118; Ex parte Hodges, 166 Tex.Cr.R. 433, 314 S.W.2d 581. These cases dealt with appeals from sanity hearings conducted after a conviction or related to direct appeals from preliminary hearings on competency.

In Griffin v. State, Tex.Cr.App., 29 S.W.2d 349, this Court held that the Court of Criminal Appeals does not have jurisdiction to hear a direct appeal from a preliminary hearing finding an accused sane at the time of trial, but left open the question of whether the matter might be brought up on appeal from the case-in-chief:

“The question of whether or not the proceeding above was ancillary to the murder case and its issues “of law might therefore be brought up with the main case is not here presented. We pass only on the right to appeal directly from a finding that he was mentally competent to conduct a rational defense.”

In Hardin v. State, 157 Tex.Cr.R. 283, 248 S.W.2d 487, this Court held that it did not have jurisdiction to review a direct appeal from a finding of insanity at a preliminary hearing because the accused had not been found guilty of anything and no punishment had been assessed, and therefore the case was not a “criminal case” within the meaning of Art. 5, Sec. 5, of the Texas Constitution, which defines the jurisdiction of this Court.

This Court, for the first time, passed on the issue of whether the competency hearing could be reviewed, if brought up on appeal with the trial on its merits, in Pena v. State, 167 Tex.Cr.R. 406, 320 S.W.2d 355. In Pena, supra, it was stated:

“The preliminary trial on the insanity issues was not the trial now before this Court for review, but another separate trial, not strictly criminal in nature, from which no appeal lies. ... To agree that he may complain upon appeal from a conviction of procedural errors at the preliminary trial on the insanity issues would be to say that an appeal does lie from the judgment in the preliminary trial, but is postponed until after a conviction upon the trial on the issue of guilt or innocence.
“We hold that appellant may not here complain of the refusal of his requested charges at the insanity trial.”

Our research of authorities from other jurisdictions reveals no other state which has denied an appeal from a competency hearing when such issue is raised on appeal from the main proceeding. See 16 A.L.R.3d 714; People v. Fields, 62 Cal.2d 538, 42 Cal.Rptr. 833, 399 P.2d 369, 16 A.L.R.3d 708, cert. den. 382 U.S. 858, 86 S.Ct. 113, 15 L.Ed.2d 95; People v. Francabandera, 33 N.Y.2d 429, 354 N.Y.S.2d 609, 310 N.E.2d 292; State v. Burrows, 250 La. 658, 198 So.2d 393; Desho v. State, 237 Ind. 308, 145 N.E.2d 429; Kilgore v. Commonwealth, 310 Ky. 826, 222 S.W.2d 600; Alexander v. State, 71 Okl.Cr. 47, 107 P.2d 811. It appears that in the preceding jurisdictions there is no question that an accused can appeal from a competency hearing if he brings up the matter with the appeal on the trial on its merits. The more difficult question raised in these opinions from other jurisdictions is whether a direct appeal lies from a preliminary hearing on competency.

It is well settled that a conviction of an accused person while he is incompetent violates due process. See Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Perryman v. State, Tex.Cr.App., 494 S.W.2d 542. Due process requires a separate hearing to determine competency to stand trial, Pate v. Robinson, supra, and Texas law requires a jury trial on such issue. See Townsend v. State, Tex.Cr.App., 427 S.W.2d 55; Cavender v. State, Tex.Cr.App., 515 S.W.2d 277; Article 46.02, V.A.C.C.P.

Although the Constitution of the United States does not guarantee a right to appellate review, Griffin v. People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, Article 44.02, V.A.C.C.P. states that “A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed.” The Constitution of the o State of Texas recites that this Court . . shall have appellate jurisdiction coextensive with the limits of the state in all criminal eases of whatever grade. . . See Vernon’s Texas Const.Ann., Art. 5, Sec. 5. A hearing on competency is not a criminal action as such in that a determination of guilt or innocence is not made, but it is quasi-criminal in a sense that a finding of competency is a necessary prerequisite to subjecting the accused to a criminal trial for the offense charged. We find that a preliminary hearing to determine competency is ancillary to the main criminal proceeding.

We note that this Court reviews pretrial hearings had on motions to suppress evidence involving searches, seizures, and confessions and motions to quash an indictment when raised ancillary to the trial on the merits. It follows, and we so hold, that this Court should review a pretrial hearing on competency when such matter is raised in an appeal from the trial on its merits.

To the extent that Knight v. State, supra; Hassler v. State, supra; Vardas v. State, supra; Pena v. State, supra; Kalinec v. State, supra, and any other cases are in conflict, they are overruled.

The record reflects that the pretrial hearing on competency to stand trial was had on March 24, 1975, and the trial on the merits was had on June 2, 1975.

At the competency hearing, Dr. John Hol-brook, a psychiatrist, testified that he was appointed by the court to conduct a psychiatric examination of appellant. Holbrook testified that, in his opinion, appellant was not competent to stand trial, that appellant did not have a rational as well as factual understanding of the proceedings, and that appellant was highly suggestible. Holbrook related that appellant could not remember the facts of the event for which he was charged. Holbrook explained that because such event was abnormal appellant could not understand it, and thus could not remember it. Holbrook testified that a polygraph examination was administered to appellant to determine if he was feigning loss of memory, and appellant passed the exam. Holbrook stated that appellant’s loss of memory was permanent and hospitalization would not benefit him.

Holbrook further testified that appellant was normal in that he reacted to conversation and responded to it, and that appellant had no mental disorder. He further related that appellant understood what was going on at trial, that he was capable of talking to his attorney about the proceedings and capable of talking about fact situations other than the one he was charged with. Hol-brook stated that appellant knew it was murder to kill someone and that he thought that appellant “knows when he’s charged with the offense of murder.”

One of appellant’s court-appointed counsel, Jack Herrington, testified that he had spoken with appellant on twenty-five or thirty occasions and that appellant was constantly changing the facts of his story. Herrington did not believe appellant was faking his condition, but did think appellant would understand what would happen if one shoots another with a gun.

The State offered no evidence at the competency hearing and the jury found appellant competent to stand trial.

In our role as an appellate court, we must view the evidence in the light most favorable to the jury, verdict. Jordan v. State, Tex.Cr.App., 506 S.W.2d 217; Northcutt v. State, Tex.Cr.App., 478 S.W.2d 935.

The question before us is whether an accused’s loss of memory regarding the facts of the event for which he is charged, standing alone, renders him incompetent to stand trial as a matter of law. We find the question to be one of first impression for this Court, but find that there is a growing body of outside authority addressed to the question here presented. We find no case yet reported which has held that the inability to recall the event charged because of amnesia constitutes mental incapacity to stand trial. See Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109 (1961, 1962); United States ex rel. Parson v. Anderson, 481 F.2d 94 (3rd Cir. 1973); United States v. Sullivan, 406 F.2d 180 (2nd Cir. 1969); United States v. Stevens, 461 F.2d 317 (7th Cir. 1972); State v. Ferguson, 26 Ariz.App. 285, 547 P.2d 1085 (1976); Bradley v. Preston, 263 F.Supp. 283 (D.C.Colo.1967), cert. den. 390 U.S. 990, 88 S.Ct. 1188, 19 L.Ed.2d 1296; United States v. Stubblefield, 325 F.Supp. 485 (D.C.Tenn.1971); People v. Francabandera, 33 N.Y.2d 429, 354 N.Y.S.2d 609, 310 N.E.2d 292 (1974); State v. Severns, 184 Kan. 213, 336 P.2d 447 (1959); State v. Swails, 223 La. 751, 66 So.2d 796 (1953); and numerous authorities cited infra.

We note that Art. 46.02, V.A.C. C.P., as amended, did not become effective until June 19, 1975. However, at the time of appellant’s hearing, the test for competency to stand trial was the same:

“The test for [determining] competency is whether [defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.”

See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Bonner v. State, Tex.Cr.App., 520 S.W.2d 901; also see Reeves v. State, Tex.Cr.App., 516 S.W.2d 410; Quintanilla v. State, Tex.Cr.App., 501 S.W.2d 647; Wages v. State, Tex.Cr.App., 501 S.W.2d 105.

In State v. McClendon, 103 Ariz. 105, 437 P.2d 421 (1967), the court held that limited amnesia does not totally destroy the defense in that an accused is free to assist counsel in numerous ways, stating that, “We believe that a defendant is entitled to a fair trial, but not necessarily a perfect trial.” See also Commonwealth ex rel. Cummins v. Price, 421 Pa. 396, 218 A.2d 758.

In State v. Pugh, 117 N.J.Super 26, 283 A.2d 537 (1971), a murder case, the court held that amnesia of the crime does not bar prosecution because, even if the defendant has forgotten the details of the crime, he is still competent to stand trial. The court explained that amnesia concerning the crime “does not render a defendant unable to comprehend his position or to consult intelligently with counsel in the preparation of his defense.”

In Fajeriak v. State, 520 P.2d 795 (Alaska 1974), the Alaska Supreme Court held that the loss of memory did not render one incompetent and that:

“Policy conjoins with precedent to oppose an expansion of the doctrine of incompetency to include amnesia. The potential for fraudulent allegations of memory loss is so great that we would for this reason alone be reluctant to follow amnesia as a ground for a finding of incompetency even if we were otherwise inclined to do so.”

The leading case on the competency of an amnesiac defendant to stand trial is Wilson v. United States, 129 U.S.App.D.C. 107, 391 F.2d 460 (1968). Wilson cites Dusky v. United States, supra, as the case which establishes the test of competency in federal courts, the same test for competency in Texas. Wilson sets forth the following factors as appropriate for the trial court to consider in determining competency:

“ ‘ (1) The extent to which the amnesia affected the defendant’s ability to consult with and assist his lawyer.
(2) The extent to which the amnesia affected the defendant’s ability to testify in his own behalf.
(3) The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant’s amnesia. Such evidence-would include evidence relating to the crime itself as well as any reasonably possible alibi.
(4) The extent to which the Government assisted the defendant and his counsel in that reconstruction.
(5) The strength of the prosecutor’s case. ... If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so.
(6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial.’ ”

See also United States v. Borum, 464 F.2d 896 (10th Cir. 1972),

In People v. Francabandera, supra, it was stated:

“When it is considered that the result of an order finding defendant unfit for trial in these circumstances would be outright release, assuming the amnesia is permanent and there is no other mental defect sufficient to warrant commitment under CPL art. 730, it can be more easily understood why all the courts which have passed on this question have refused to allow amnesia to be classified as the sort of mental defect causing incapacity to stand trial. This certainly is a consideration in balancing the public safety against the individual’s rights; but we do not wish to be understood as making this our prime consideration since it would not fully meet the constitutional arguments. Rather, we are in accord with the reasoning in Wilson which addresses itself to the question whether defendant can conceivably receive a fair trial; and, after trial, whether defendant did in fact receive a fair trial. This allows for essential case-by-case evaluation.”

Applying the foregoing standards to the instant case, we cannot say that appellant did not receive a fair trial. The State introduced evidence that appellant and his wife were having an argument, that two shots were fired, and that appellant’s wife was wounded and appellant’s sister was killed. Appellant’s wife testified that appellant “accidentally” shot her and that he told her immediately after the shooting that he shot the deceased. The State introduced medical reports by examining physicians and testimony by attending nurses at the hospital as to admissions made by appellant when he brought the shooting victims to the hospital. There is no suggestion that this evidence was not discoverable by appellant if he did not have access to it. Appellant does not complain of any unwillingness on the part of the State to assist him in the reconstruction of the facts.

Appellant testified in his own defense and stated that he was going to scare his wife with the gun and the gun “hung” and it fired and his wife was hit. He related that he found his sister shot also and carried both to the hospital. No defense has been suggested by appellant which the loss of memory has locked in. Appellant does not challenge the sufficiency of the State’s evidence to support the jury’s verdict at the trial on the merits.

We find the evidence sufficient to support the jury’s verdict that appellant was competent to stand trial.

Appellant next contends that the trial court erred in refusing to allow Dr. Hol-brook to testify before the jury at the trial on the merits regarding appellant’s state of mind at the time of the alleged offense.

We held in Winegarner v. State, 505 S.W.2d 303, that it is not proper for a psychiatrist to give his opinion based upon hearsay as to the intent of appellant at the time of the offense. No error is shown.

Appellant next contends that a pistol was erroneously admitted into evidence because it was obtained as the result of an improper search, and that the trial court erred in refusing to submit appellant’s requested instruction under Art. 38.23, V.A.C.C.P.

The record reflects that Harold Griffin, an ambulance driver, helped appellant carry the wounded women into the hospital from appellant’s automobile. Griffin noticed appellant take a pistol out of his pocket and place it in the console of his car. Griffin asked appellant to go into the hospital and, after appellant had done so, Griffin removed the pistol from appellant’s car and subsequently turned it over to the police. Griffin was a former police officer, having completed basic training, and was certified as a police officer. Griffin’s employment with the police department had terminated approximately one month before the occurrence of the events in question.

Appellant urges that the evidence should have been excluded because Griffin’s search of his automobile was in violation of his Fourth Amendment rights and in violation of Art. 38.23, supra, in that no search warrant was issued and no exigent circumstances were evident.

It is undisputed that appellant had a gun on the occasion in question and that he placed same in the console of his car. Appellant took the stand and admitted that he entered the room and that he had a gun in his pocket. He further testified on direct:

“By the time I got it out, it shot and hit Linda and Linda just went to one side and said Bubby, you done shot me.
sfc ⅛ ⅝ sf: ⅝ ⅜
“And I went to pick her up to carry her to the doctor and I turned around and she said Christine is shot.”
On cross-examination, appellant testified: “Q Where did you place the pistol in the car?
“A In the console.
“Q Is that between the two seats?
“A Right.
“Q Is that the same pistol that you were holding when Linda was shot?
“A Sir?
“Q Is that the same pistol you were holding when Linda was shot?
“A Right.
“Q So the pistol that was in the console there at the hospital is the same pistol?
“A That I had when Linda was shot?
“Q When you went in there?
“A When Linda was shot?
“Q Right.
“A Right.
“Q You can’t say for sure that this pistol right here in [sic] the same one, but it’s the same type?
“A I don’t have it marked. I wouldn’t know.
“Q It does appear to be an identical type pistol?
“A Right.”

Assuming that the complained-of search was illegal, we conclude that the admission of the evidence was harmless beyond a reasonable doubt in light of the undisputed evidence in the record that appellant had a pistol on the occasion of the shooting and that he placed same in the console of the car. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Clay v. State, Tex.Cr.App., 518 S.W.2d 550.

Appellant contends further that inculpa-tory verbal statements were improperly admitted into evidence over his objection.

The record reveals that appellant was asked by the ambulance driver to go into the hospital after the bodies were taken inside. Appellant went into the emergency room where the deceased’s body was taken.

Joy Tucker, a nurse, “went in to obtain the information from Mr. Jackson on the address and all the proceedings we have to have on the emergency room form.” Linda Jeter, another nurse, was present during the questioning. Tucker obtained information concerning the name, address, age, telephone number, and doctor of the deceased. When Tucker inquired into the history as to how the accident occurred, appellant responded, “There’s no history to it. I shot both of them.” Tucker related that she was surprised by the answer and asked no further questions. She further stated that the filling out of the emergency room form was a routine matter, even if a patient comes “in with a stomachache.” Tucker stated that no policemen were present when the questioning occurred, but that the police were called when a gunshot victim was admitted into the hospital, and that the police had access to the hospital records.

Appellant objected to the testimony of Tucker on the grounds that the statements made by appellant constituted an oral confession and were not admissible under the United States and Texas Constitutions and under the Code of Criminal Procedure.

Jeter subsequently testified to the same statements made by appellant and appellant again objected. On appeal, appellant only complains of the testimony of Jeter.

Article 38.22, V.A.C.C.P., provides that an oral confession is not admissible if made while an accused is confined in the custody of an officer unless certain requirements are met.

Appellant urges that he was in the custody of an officer because the ambulance driver was a former police officer and he asked him to go into the hospital and because the hospital reports were frequently read by police officers when gunshot victims were admitted into the hospital.

Assuming the evidence was inadmissible, we find that its admission would not require reversal. The record reflects that appellant testified upon direct examination as follows:

“Q. Now, Charles, when the nurse at the hospital asked you for a history of the shooting, you told them that you shot both of them?
“A. At that time, I felt that I did.
“Q. Well, are you saying now that you did not?
“A. I am.
“Q. But you told her that you did?
“A She asked me her name and a whole lot of more information. I gave her all that I could.
“Q. Uh — huh.
“A. Then she asked me, said I need some kind of medical history about what happened. I told here I don’t know anything what happened except that they got shot and I guess I must have did it.”

Generally, inadmissible evidence erroneously admitted will not require reversal if the accused testifies about the same facts and admits the truth of the testimony to which he originally objected. See Cameron v. State, Tex.Cr.App., 530 S.W.2d 841; Washington v. State, Tex.Cr.App., 484 S.W.2d 721. However, if a defendant introduces rebutting evidence to meet, destroy, or explain the improperly admitted evidence, he does not waive his objection to the evidence. See Nicholas v. State, Tex.Cr.App., 502 S.W.2d 169. In the instant case, appellant does not attempt to “meet, destroy, or explain” the testimony elicited from the nurses, but states that the testimony was a true rendition of what he stated on the date in question. Appellant only explained in his testimony at trial that he no longer believed that he shot both women.

Likewise, we find in the record that appellant’s wife testified that after she questioned appellant concerning the condition of his sister he replied, “I guess I shot her too.” No objection was made by appellant.

Any error in admission of evidence is waived if the same evidence is admitted elsewhere in trial without objection. See Davis v. State, Tex.Cr.App., 516 S.W.2d 157.

In a related ground of error, appellant contends that he was deprived of a fair and impartial trial because of prejudicial comments made by the trial court concerning the weight of certain evidence.

The record shows that a discussion between counsel and the trial court was had before the jury regarding the admissibility into evidence of certain admissions made by appellant. It appears that appellant was attempting to show that Griffin was a police officer and had restrained appellant. Appellant’s counsel questioned Griffin concerning a citizen’s arrest and whether Griffin would have made a citizen’s arrest had appellant “really tried to do anything.” The prosecutor objected, stating that there had been no citizen’s arrest and that Griffin had related that he was not employed as a policeman at the time in question. The following then transpired:

“MR. LOVETT: We’re just simply trying to determine whether this man placed Mr. Jackson under any restraint. It was the result of a legal arrest, whether he says it was an arrest or not.
“THE COURT: Mr. Lovett, the man has never indicated that he put his hand on the defendant to restrain him in any way. He has testified that he is not a police officer. He testified that he did not make an arrest and therefore, there is— apparently, he hasn’t made an arrest. Now I think the question is would he have made one is speculative.
“MR. LOVETT: I most respectfully make this objection. I don’t want the court to misunderstand. But I do respectfully object to the court making remarks in the presence of the jury that there has been no arrest. The reason is that I believe that that would be perhaps a question of fact which the jury itself may have to resolve and I believe that would amount to a comment on the weight of the evidence by the court.
“THE COURT: All right. Ladies and gentlemen, you are not to consider any remarks that the court has made in attempting to rule on the evidence and the objections in this matter. I will sustain the State’s objection to the evidence without further comment.”

Article 38.05, V.A.C.C.P. prohibits a trial judge, when ruling upon the admissibility of the evidence, from discussing or commenting upon the weight of the evidence or its bearing in the case. To constitute reversible error, the comment of the court on the evidence must be such that is reasonably calculated to prejudice the defendant’s rights by injuring him or by benefiting the State. Barnes v. State, Tex.Cr.App., 503 S.W.2d 267; Barber v. State, Tex.Cr.App., 511 S.W.2d 937.

Here, evidence concerning whether an arrest had been made by Griffin would only have been material to the jury had issues been before them regarding the search and an oral confession. As heretofore noted, reversible error is not shown in the court failing to submit such issues to the jury. Further, the trial judge instructed the jury to disregard any comments made by him. See Lewis v. State, Tex.Cr.App., 503 S.W.2d 806.

The comments did not benefit the State or prejudice the appellant. No reversible error is shown.

Appellant next contends that the trial court erred in refusing to charge on the law of circumstantial evidence.

As mentioned previously, appellant made admissions to nurses on duty at the hospital and his wife that he shot both women. A charge on circumstantial evidence need not be given where there is in evidence an admission or confession by the accused. Corbett v. State, Tex.Cr.App., 493 S.W.2d 940; Hurd v. State, Tex.Cr.App., 513 S.W.2d 936, and the numerous cases cited therein.

Appellant next contends that the trial court erred in failing to instruct the jury regarding involuntary manslaughter and criminal negligence as requested by appellant.

It is well settled that if facts are elicited during trial that raise an issue and a charge on the issue is properly requested, then a charge on the issue must be given. See Day v. State, Tex.Cr.App., 532 S.W.2d 302, and cases there cited. An accused’s own testimony is sufficient to raise an issue. See Day v. State, supra.

Involuntary manslaughter is defined to be a reckless killing. See V.T. C.A., Penal Code, Sec. 19.05. To be convicted for criminal negligence, an accused must cause the death of an individual by criminal negligence. See V.T.C.A., Penal Code, Sec. 19.07.

In the instant case, appellant testified that he intended to scare his wife with the pistol and it went off and his wife was wounded. Although appellant testified that he did not think that he shot the deceased, it is evident two shots were fired. One witness heard two shots fired, two spent cartridges were discovered in the gun, a bullet was recovered from each woman, and expert testimony showed the angle of trajectory to be such that both women could not have been hit by the same bullet. The record reflects that appellant’s wife was in front of him when the gun went off and the deceased was behind him. Appellant made admissions that he shot both women.

A pistol is a deadly weapon per se, and when used by a defendant an intent to kill is presumed. See Brooks v. State, 548 S.W.2d 680 (1977); Ruiz v. State, Tex.Cr.App., 523 S.W.2d 691; Thompson v. State, Tex.Cr.App., 521 S.W.2d 621. In the instant case, we find no evidence to refute this presumption.

Appellant’s testimony that he did not think that he shot the deceased does not raise an issue of whether appellant was reckless or criminally negligent in causing the death of the deceased. Furthermore, just because appellant’s wife’s wound might have been caused by reckless conduct, we cannot impute this conduct to the shooting of the deceased where the record reflects that two shots were fired, a bullet was recovered from each of the victims, and the deceased was standing behind the appellant when appellant’s wife was wounded.

In Brooks v. State, supra, the defendant testified that to keep the deceased from killing him with a pistol he struggled with the deceased to get possession of the pistol and that, during the struggle, the pistol was unintentionally pointed and fired in the direction of the deceased. We stated in Brooks, supra:

“When we attempt to apply the definition of recklessly found in the new Penal Code, we can find no evidence that the appellant acted in a reckless manner; i. e., there is no evidence that the appellant was aware of, but consciously disregarded a substantial and unjustifiable risk that circumstances existed or the result would occur with respect to circumstances surrounding his conduct or the results of his conduct. The trial court did not err in refusing to submit to the jury the instruction on the law of involuntary manslaughter.”

In the instant case, unlike the facts in Brooks, supra, we find absolutely no evidence to show the circumstances in which the deceased was killed. It follows that we find no evidence that appellant acted in a reckless or criminally negligent manner. Finding no evidence to support the requested instructions, we hold the trial court did not err in refusing to charge on involuntary manslaughter and criminal negligence.

Lastly, appellant contends that the trial court erred in denying his motion for new trial because of jury misconduct. It appears that one of the jurors at appellant’s trial, Jimmie Davidson, was on probation for misdemeanor DWI at the time of the trial and was in violation of such probation in that he had not paid his fine. It further appears that Davidson’s probation officer was in the courtroom during part of the trial. Appellant urges that these circumstances exerted pressure on Davidson to favor the State.

Davidson was not disqualified under Arts. 35.12, 35.16, or 35.19, Y.A.C.C.P. If Davidson was subject to a challenge for cause under Arts. 35.16(a)(8) and (9) on grounds that he was biased against appellant or had formed a conclusion as to appellant’s guilt, it was incumbent upon appellant to establish these facts on voir dire. The failure of appellant to so inquire during the voir dire of the jury panel and present a challenge for cause waives any ground of error regarding the matter. See Mangum v. State, Tex.Cr.App., 493 S.W.2d 798; Mahon v. State, Tex.Cr.App., 429 S.W.2d 891.

Davidson was not called at the motion for new trial. Gary Clayton, Davidson’s probation officer, testified that he exerted no pressure on Davidson. We cannot speculate as to the prejudice, if any, of the juror in favor of or against appellant. The ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . While not limited to these cases, to the extent the following cases are in conflict, they are overruled: Newton v. State, Tex.Cr.App., 509 S.W.2d 610; Martin v. State, Tex.Cr.App., 475 S.W.2d 265; Peach v. State, Tex.Cr.App., 498 S.W.2d 192; Schoier v. State, Tex.Cr.App., 480 S.W.2d 657; Rounsavall v. State, Tex.Cr.App., 480 S.W.2d 696; Taylor v. State, Tex.Cr.App., 420 S.W.2d 601; State v. Olsen, Tex., 360 S.W.2d 398; Ex parte Hodges, 166 Tex.Cr.R. 433, 314 S.W.2d 581; Sandlin v. State, Tex.Cr.App., 477 S.W.2d 870.

      . V.T.C.A., Penal Code, Sec. 6.03(c), recites:
      “A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

      . V.T.C.A., Penal Code, Sec. 6.03(d), recites:
      “A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all circumstances as viewed from the actor’s standpoint.”


author: PHILLIPS, Judge.

text:
    Leonard SUTTON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 52614.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Rehearing Denied April 13, 1977.
    W. C. Kirkendall, Seguin, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

Appellant was convicted by a jury for aggravated assault under V.T.C.A., Penal Code, Sec. 22.02(a)(2); the court assessed punishment at three years.

The sufficiency of the evidence is not challenged. The record reflects appellant was purchasing chicken at a fast food restaurant in Seguin on July 23,1975, and that he began cursing at the assistant manager when he was told they could not change a $100 bill. Officer Aldana, a police officer in New Braunfels, was standing behind appellant at the time. Because Officer Aldana was not in uniform, he identified himself as a police officer and requested that appellant be more careful with his language. Appellant then cursed Officer Aldana and either slapped or pushed Aldana. Mrs. Al-dana got out of the car and fired a shot in the air with Officer Aldana’s service revolver. Officer Aldana took the gun from his wife, telling her to stay in the car, while appellant wrote down Aldana’s license plate number. Officer Aldana asked the assistant manager to call the police and waited inside the restaurant until Officer Smith’s patrol car arrived three minutes later. The instant offense arose out of the events immediately after Officer Smith’s arrival. The evidence is undisputed that Officer Smith was a uniformed police officer responding to a disturbance call, that he was speaking with Officer Aldana as appellant approached him, and that appellant’s arm connected with Officer Smith’s face, breaking the officer’s glasses and “causing a slight gash” in his forehead. Officer Smith and appellant “wrestled” and with the assistance of Officer Aldana and another Se-guin police officer, appellant was subdued.

Appellant alleges the trial court erred in denying his timely requested instructions on self defense and resisting a lawful arrest, which appellant contends is a lesser included offense of aggravated assault on a peace officer.

Although appellant did not testify, he contends the issue of self defense was raised by the testimony of defense witnesses Perez and Ybarra. Witness Perez testified she saw appellant leaning against the police car, that he “raised his hand up”, that the two officers thought he was going to swing at him so “they got him down on the ground and started hitting on him.” Witness Ybarra testified as follows:

“A That Policeman (Officer Smith) called Mr. Sutton and then he went over, you know, to where they were, and kind of like they wanted to handcuff him because he did his hands like that, and when he did his hands like that, the policeman and that other man started hitting him.
* * * * * *
Q [BY DEFENSE COUNSEL]: When Mr. Sutton put his hands up like this, sort of raised his hands, what happened next? A When he did his hands like that, I guess the policeman thought he was going to hit him or something because that is when they started hitting him.
⅜ ⅜ # ⅜ ⅜ ⅜
Q Was he hitting back?
A No, sir. Kind of, you know, trying to keep them away from hitting him.”

The testimony of Officer Smith set forth in our discussion of appellant’s second ground of error shows the officer put his hand on appellant’s arm in an attempt to place appellant under arrest and, in response to this touching, appellant brought his arm up, striking Officer Smith in the face. Under V.T.C.A., Penal Code, Sec. 9.31(c), the use of force to resist arrest is justified if the peace officer uses or attempts to use greater force than necessary to make the arrest. The only evidence which shows the amount of force used to effect the arrest before appellant resisted is Officer Smith’s testimony on cross examination as follows:

“Q But, you felt at this time that the best way to effect the arrest of Mr. Sutton was by your physically grabbing him and throwing him up against the car; is that right?
A No, sir. The move was not that physical. The move was to turn Mr. Sutton around.
Q Sir?
A The move was to turn Mr. Sutton around and place him up against the car as in a normal arrest.”

We find this evidence insufficient to raise the issue of self defense under Sec. 9.31(c), supra, and the trial court properly denied appellant’s instruction on the law of self defense. Cf. Rodriguez v. State, Tex.Cr.App., 544 S.W.2d 382.

Appellant’s remaining ground of error urges resisting arrest under V.T.C.A., Penal Code, Sec. 38.03(a), is a lesser included offense of aggravated assault as proscribed by Sec. 22.02(a)(2), supra. Under Art. 37.-09(1), V.A.C.C.P., an offense is a lesser included offense of the offense charged if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. See Day v. State, Tex.Cr.App., 532 S.W.2d 302; Jones v. State, Tex.Cr.App., 532 S.W.2d 596; Hazel v. State, Tex.Cr.App., 534 S.W.2d 698.

The indictment charged appellant did (1) knowingly and intentionally (2) cause bodily injury (3) to Tommy Smith, a peace officer in the lawful discharge of official duty (4) when he knew or had been informed Tommy Smith was a peace officer. The elements of the offense of resisting arrest are a person (1) intentionally (2) prevents or obstructs (3) a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction (4) from effecting an arrest or search of the actor or another (5) by using force against the peace officer or another.

Evidence which establishes conduct directed toward a person known to the actor to be a peace officer while the officer is effecting an arrest would establish the officer was acting “in the lawful discharge of official duties”. See Art. 2.13, V.A.C.C.P. We must next determine whether conduct which prevents or obstructs an arrest “by using force against the peace officer” may be proven by the same or less than all the facts necessary to establish infliction of “bodily injury” as that phrase is defined in Y.T.C.A., Penal Code, Sec. 1.07(a)(7).

In Allen v. State, Tex.Cr.App., 533 S.W.2d 352, the defendant was convicted of aggravated assault based on the testimony of one of the arresting officers which showed one of the blows by the defendant struck the officer on the nose, causing swelling and soreness. The jury was instructed on the law of resisting arrest and rejected this theory by finding the defendant guilty of aggravated assault. Even though the defendant raised the issue of resisting arrest through his testimony that he did not strike the officer, but was only trying to pull away from the arresting officers, a review of the testimony of the arresting officers makes it clear the theory of resisting an arrest was also raised by testimony that the defendant committed the assault after he had been advised he was under arrest and while the complainant was attempting to put handcuffs on the defendant’s ankles.

We find the requirements of Sec. 38.03, that the accused prevent an officer from effecting an arrest by using force, can be established by the same facts necessary under See. 22.02(a)(2) to show the accused caused bodily injury to a peace officer in the lawful discharge of official duty. The proof of additional facts would not be necessary and the requirements of Art. 37.-09(1), supra, would be satisfied.

We must next consider if the evidence raised the issue of the lesser included offense of resisting arrest. Officer Smith’s testimony as to what occurred after appellant approached Officer Smith and Officer Aldana is as follows:

“A I don’t remember if any conversation ensued before this, but the next thing I remember doing along probably was I reached up with my right hand and placed it on Mr. Sutton’s right biceps in an attempt to turn him around because I was still standing partially in the open door to my patrol car.
Q Your patrol car?
A Yes, sir.
Q All right.
A Okay. The door was eventually closed, and as I reached around to grab hold of Mr. Sutton’s arm and turn him around to place him up against the car and attempt to make an apprehension for disorderly conduct due to the language he was using in public, when I did place my hand on Mr. Sutton’s arm, he brought his arm over the top of mine, striking me on the face.”

Officer Alex, a Seguin police officer who assisted in the arrest, testified that Officer Smith asked the appellant to be quiet and settle down. When appellant cursed at Officer Smith, Officer Smith “attempted to take custody” of appellant by taking hold of appellant in an attempt “to turn him around and get him against the patrol car where he could facilitate handcuffing him.” Appellant then “turned around and struck Officer Smith in the face area.”

Even though the appellant was not advised that he was being placed under arrest, the jury could have reasonably believed Officer Smith was attempting to effect an arrest, and that the appellant raised his arm in an attempt to obstruct the arrest. The testimony of Officer Aldana and Officer Alex that appellant struck Officer Smith in the face raises the issue of whether appellant used force to resist the arrest. See Washington v. State, Tex.Cr.App., 525 S.W.2d 189, wherein we held testimony that defendant “dragged” two police officers after one handcuff was placed on her wrist was sufficient to show the defendant used force to resist arrest. In Matter of Hartsfield, 531 S.W.2d 149 (Tex.Civ.App.—Tyler 1975), the evidence was held sufficient to support a finding that the defendant used force to resist arrest based on testimony that the defendant started swinging at the arresting officer and the officer blocked the blows with his arms. See and compare the practice commentary to Sec. 38.03, which suggests “an effort to shake off the officer’s detaining grip” does not establish resistance by the use of force.

The evidence was sufficient to raise the issue of resisting arrest notwithstanding evidence which supports proof of the greater offense of aggravated assault, and the failure of the trial court to submit appellant’s written charge on the lesser offense constitutes reversible error. See Day v. State, supra, and cases cited therein.

The judgment is reversed and the cause remanded.

DOUGLAS, J., dissents.


author: DALLY, Commissioner.

text:
    Michael JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 52695.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Rehearing Denied April 13, 1977.

      Cameron M. Cunningham, Austin, for appellant.
    Martin D. Eichelberger, Dist. Atty., Raymond Matkin and Lynn W. Malone, Asst. Dist. Attys., Waco, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of aggravated assault on a peace officer; Article 1147(1), V.A.P.C. (1925); the punishment is confinement in the county jail for 6 months.

The appellant complains that the trial court erred in (1) overruling his motion to quash the jury panel because the statutory exemptions for women with children under ten years of age violates the constitutional provisions of both the United States and this State, (2) overruling his motion to quash the jury panel because students were excluded in violation of the due process and equal protection provisions of the Constitution of the United States, (3) admitting hearsay evidence, (4) failing to assess punishment under the correct statute, and (5) overruling his motion to suppress evidence.

The appellant contends that the court erred in overruling his motion to quash the jury panel because the statutory exemption from jury duty for women with legal custody of children under ten years of age violates the due process and equal protection clauses of the United States Constitution and Article 1, Sections 3 and 3a of the Texas Constitution. Appellant also contends that the jury panel should have been quashed because college students were excluded in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States.

The United States Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), held unconstitutional a Louisiana statute providing that a woman should not be selected for jury service unless she previously filed a written declaration of her desire to be subject to jury service. In Taylor the record reflected that in the judicial district where the appellant was convicted 53% of the persons eligible for jury service were female; however, no more than 10% of the names in the jury wheel were those of women. The Supreme Court noted that the Louisiana jury selection system did not disqualify women from jury service; however, in operation its conceded systematic impact was that only a few women, grossly disproportionate to the number of eligible women in the community, were called for jury service. The Supreme Court held that the Sixth Amendment right to trial by jury requires that the petit jury be selected from a fair cross section of the community. However, the Court also said:

“The fair-cross-section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the- jury lists or panels are representative of the community.”

Appellant challenges Sections 2 and 4 of Article 2135, V.A.C.S.; this statute is as follows:

“All competent jurors are liable to jury service, except the following persons:
“(1) All persons over sixty-five (65) years of age.
“(2) All females who have legal custody of a child or children under the age of ten (10) years.
“(3) All students of public or private secondary schools.
“(4) Every person who is enrolled and in actual attendance at an institution of higher education.”

Our Texas statute is significantly different from the Louisiana statute struck down in Taylor v. Louisiana, supra. Article 2135, V.A.C.S., provides a personal exemption rather than an exclusion or disqualification. Eligible jurors who may qualify for an exemption are still called for jury service, and the statute requires that the prospective juror take affirmative action in order to exercise the exemption; the statute does not require that a prospective juror exercise affirmative action in order to be included on the jury rolls. See Article 2137, V.A.C.S. Moreover, these exemptions are transitory, and will be continually changing; the exemptions are not permanent.

Taylor v. Louisiana, supra, only requires that juror exemptions be reasonable. The State has a legitimate interest in providing exemptions from jury service because it provides an orderly and efficient method of speeding up the operation of our overloaded judicial system. Article 1, Section 3a of the Texas Constitution, the Texas Equal Rights Amendment, only requires that jury exemptions based on sex be reasonable in relation to their intended purpose.

The Legislature obviously intended that Section 2 of Article 2135, V.A.C.S., would provide a convenient and efficient method for women with small children to avoid the hardship of providing care for their children while they performed jury duty. However, this statute in no way prevents the woman from being called for jury duty. If she wishes to serve, she need not take any affirmative action to do so.

Appellant argues that it is unreasonable for the Legislature to presume that only women have the responsibility for the care of children under the age of ten. In support of his argument appellant cites footnote 17 in Taylor v. Louisiana, supra. In that footnote the Supreme Court cited statistics compiled by the Department of Labor in 1974. While those statistics are not categorized as to women with children under age ten, they show that 45.7% of the women with children under the age of eighteen were in the labor force. They also show that in families containing children between the ages of six and seventeen 51.2% of the women whose husbands were present in the household were in the work force. In that same category of households with children under age three, 31% of the women were in the labor force. While these statistics indicate that many women with children are not primarily engaged in the care of their children during the normal business hours for the courts; these statistics conversely indicate that a great many women with children are still primarily engaged in caring for their children.

Therefore, even by today’s standards, we find that the exemption in Section 2 of Article 2135, V.A.C.S. is reasonable. If women who are primarily engaged in the care of their children under age ten were not granted this exemption they would have to personally and individually present any claims of hardship to the court under Article 35.03, V.A.C.C.P. Therefore, we find that the State has a legitimate interest in creating this optional exemption because it allows those persons most likely to have a legitimate claim of hardship to present it in an orderly manner.

Appellant also contends Article 2135, Section 4, V.A.C.S. is unconstitutional because it exempts persons enrolled and in actual attendance at an institution of higher education. The federal courts have recognized that it is reasonable to conclude that missing class and study time is more of a hardship for students than missing work is for persons in other occupations. The juror’s fee can alleviate, at least in part, some of the burden placed on wage earners; however, loss of educational time is not so easily compensated. United States v. Ross, 468 F.2d 1213 (9th Cir. 1972); United States v. Duncan, 456 F.2d 1401 (9th Cir. 1972). The exemption for college students is optional for those wishing to claim it and applies only to those students in actual attendance.

We hold that Article 2135, Sections 2 and 4, V.A.C.S. are reasonable exemptions and are not unconstitutional on their face under either the United States Constitution or the Texas Constitution. Our remaining consideration is whether appellant has shown that the actual application of these exemptions has resulted in the exclusion of a cognizable class of citizens so that the jury lists in the district in which he was convicted no longer represent a fair cross section of the community.

Appellant introduced a list of 300 persons called for jury duty on Monday, June 17, 1974. Based upon identification by name, it appears that approximately 136 of these persons were female. The record indicates that eighteen women claimed their exemption under Section 2 of Article 2135, V.A. C.S. However, the record does not show how many women with children under age ten were eligible for jury duty in the judicial district, nor does the record reflect how many women could have claimed their exemption but chose not to. The voir dire examination of the jury panel at appellant’s trial shows that at least ohe woman on the venire could have claimed a Section 2 exemption but chose not to.

The record does not show how many college students were eligible for jury duty in the county. The record does not reflect how many college students would qualify for exemption under Section 4 of Article 2135, V.A.C.S. The only evidence in the record regarding college students is that six of the 300 people called for jury duty on June 17th claimed the exemption provided in Section 4.

Appellant has not met his burden of showing discrimination against a distinct, identifiable class in the selection of the venire. See Bradley v. Texas, 470 F.2d 785 (5th Cir. 1972). Merely showing that of the 300 people called for jury duty on June 17th 6% claimed an optional exemption for women with children under age ten does not show that the jury panels failed to represent a fair cross section of the community. Likewise, the fact that 2% of the persons on one jury list of 300 persons chose to exercise an optional exemption does not show that the jury panels failed to represent a fair cross section of the community by excluding college students.

We will now consider the appellant’s assertion that hearsay evidence was erroneously admitted over his timely objection. Police officers who were investigating a robbery which had just occurred stopped the vehicle in which the appellant was a passenger. It was while the officers were attempting to search the appellant that the appellant allegedly committed the assault upon Officer Speed. In this multifarious ground of error, complaint is made that the hearsay evidence relating to probable cause for stopping the automobile and arresting appellant was elicited from Officers DeLa-Rosa and Speed.

DeLaRosa testified he had talked to the victims of the robbery and obtained a description of the robbers. He was then asked: “Did you put that description out over the air?” The appellant’s counsel objected that it was hearsay. The court, in an apparent attempt to clarify the matter, said: “You asked the description he [Officer DeLaRosa] gave out?” The prosecutor said: “Over the air, yes, sir.” The appellant’s counsel made no further objection and did not demonstrate that the officer’s description of the robber was based on hearsay. See Boening v. State, 422 S.W.2d 469 (Tex.Cr.App.1967). The court overruled the objection. The officer then testified, giving the description of the robber which he had broadcast. After several other questions and answers about matters which the victim had related to DeLaRosa, defense counsel again objected to the testimony concerning what the victim had related to DeLaRosa because it was hearsay. The court sustained the objection.

Although the first objection may have been good, it is the duty of counsel to establish or demonstrate that the officer’s testimony has hearsay. See Boening v. State, supra. When the judge attempted to clarify the matter he did not ask what the officer had been told by the victim, he asked what description the officer broadcast. Under the circumstances the ruling at the time it was made was correct; after hearsay had been obviously elicited and objection was made, it was sustained. No error is apparent.

During direct examination Officer Speed testified that, while investigating the robbery, he had stopped someone who did not fit the description of the robbers. He said the person he stopped gave him some information about a white car. When the prosecutor asked Officer Speed what the person told him about the white car, the appellant’s objection that it was hearsay was improperly overruled. The officer was permitted to testify that the person he stopped told him a white car being driven on Waco Drive had almost forced him off the road. The person stopped could not give a description of the people in the white car.

It was the State’s contention at the time of trial that the hearsay testimony was admissible to show probable cause for the stopping and arrest of the appellant. Over an objection, this hearsay testimony was not admissible before the jury. See Roberts v. State, 545 S.W.2d 157 (Tex.Cr.App.1977). However, in view of the whole record, the admission of this rather innocuous bit of hearsay evidence does not show reversible error. The evidence before the jury was clear that, although the appellant had been charged with the robbery, these charges had been dropped when the victim did not identify the appellant as the robber. Moreover, hearsay evidence similar to and more harmful than that about which complaint is made was elicited before the jury without objection. We have concluded that reversible error is not shown.

The appellant complains that the trial court erred in overruling his motion to have his punishment assessed and to be sentenced under V.T.C.A. Penal Code, Section 22.01(a)(3) and (b).

The alleged offense, a violation of Article 1147(1), V.A.P.C. (1925) was committed on September 13,1973; the trial was on June 17,1974, after the effective date of the new penal code. Although the appellant was indicted and convicted under the provisions of the former penal code, he had the right to elect, and did elect, to be punished under the provisions of the new penal code. V.T.C.A. Penal Code, Savings Provision, Section 6(A); Wright v. State, 527 S.W.2d.859 (Tex.Cr.App.1975); Jefferson v. State, 519 S.W.2d 649 (Tex.Cr.App.1975). If the offense or “conduct” under the former penal code for which the appellant was convicted is a violation of more than one section of the new code, the court, in assessing punishment, must determine from the evidence which section of the new code is applicable. Wright v. State, supra; Ambers v. State, 527 S.W.2d 855 (Tex.Cr.App.1975); Bishoff v. State, 531 S.W.2d 346 (Tex.Cr.App.1976).

Since there is no evidence that the officer who was the victim of the assault received bodily injury, the appellant’s punishment could not be assessed under the provisions of V.T.C.A. Penal Code, Section 22.02. Although the appellant’s conduct may have constituted violation of the provisions of V.T.C.A. Penal Code, Section 22.01, his conduct also constituted an offense under the provisions of V.T.C.A. Penal Code, Section 38.03, which provides, in part:

“(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest or search of the actor or another by using force against the peace officer or another.
“(b) It is no defense to prosecution under this section that the arrest or search was unlawful.”

The punishment assessed was appropriate; the court did not err in overruling the appellant’s motion to be punished under the provisions of V.T.C.A. Penal Code, Section 22.01(a)(3) and (b).

Next, the appellant complains that the trial court erred in overruling his motion to suppress evidence, as there was no probable cause to stop the vehicle in which he was a passenger, and there was no probable cause to arrest the appellant after the vehicle was stopped. Since the appellant fails to state what evidence, if any, was obtained as a result of the alleged unlawful arrest and what evidence, if any, obtained incident to the alleged unlawful arrest was introduced, we perceive no error in the overruling of his motion to suppress. A reversal of the judgment is necessary when fruits of a search and seizure made incident to an unlawful arrest are admitted over a timely objection, but an unlawful arrest itself does not necessarily require the reversal of a judgment of conviction. See Stiggers v. State, 506 S.W.2d 609 (Tex.Cr.App.1974); Mortier v. State, 498 S.W.2d 944 (Tex.Cr.App.1973). However, at the time of his arrest, which was before the effective date of the new penal code, the appellant had the right to defend himself against an unlawful arrest. The appellant urged this defense, and a charge submitting the appellant’s right to resist an unlawful arrest was submitted to the jury.

The judgment is affirmed.

Opinion approved by the Court.