author: ODOM, Judge. YOLLERS, Judge,

text:
    Richard D. SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 56072.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1977.
    Dissenting Opinion On Denial of Rehearing Nov. 15, 1978.

      James H. Kreimeyer, Belton, for appellant.
    Bobby L. Cummings, Dist. Atty. and Leslie Vance, Asst. Dist. Atty., Gatesville, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder, with punishment fixed at death. Appellant was indicted and charged with intentionally causing the death of Travis Russell Durham by cutting his throat with a knife during the commission of the offense of burglary. In view of our disposition of this appeal, further discussion of the facts is not necessary.

Appellant contends the trial court erred in failing to grant his challenge for cause to the twelfth juror seated, Leo Franklin Payne, in that Payne had stated that he could only consider assessing the penalty of death in a capital murder case. The record adequately reflects that the appellant exhausted fifteen peremptory challenges allotted him pursuant to Art. 35.15(a), V.A.C. C.P. and an additional peremptory challenge granted him by the trial court. The record reflects as well that Payne did sit in the case. Thus, a reversal will be warranted if it is established that a sufficient challenge for cause was overruled. Bell v. State, 137 Tex.Cr.R. 401, 129 S.W.2d 664; Story v. State, Tex.Cr.App., 502 S.W.2d 764.

Article 35.16(c)(2), V.A.C.C.P., provides that a challenge for cause may be made by the defense for the reason that the juror “has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof, or of the punishment therefor.” (Emphasis added.)

In Woodkins v. State, Tex.Cr.App., 542 S.W.2d 855, we held, “[T]he appellant [has] the right to challenge for cause any juror who could not give the minimum punishment. Both the appellant and the state [have] the right to have jurors who believe in the full range of punishment.” See also Huffman v. State, Tex.Cr.App., 450 S.W.2d 858. Thus, if it is established that the appellant was forced, over objection, to have a juror sit on his case who could not consider the full range of punishment, a reversal of the cause would be warranted.

During the course of the voir dire examination of prospective juror Payne, he stated explicitly that he would not consider the punishment of life imprisonment if appellant were found guilty of capital murder:

“Q. Then, you really wouldn’t consider life — you wouldn’t even consider it?
“A. That’s right.”

At several points he expressed his belief that death should be the penalty for taking a life:

“I feel very strongly if a person, after pushing to take somebody’s life, he should — give his life.”
“[If] a person actually took another person’s life then he should give his life for another person’s life.”
“I’ve always felt that way about it, I feel that if somebody knowingly takes some[one] else’s life . . . then they should be willing to forfeit theirs.”

The juror stated that he held his view that death would be the only proper punishment as a firm conviction and that he could not be swayed or persuaded from that position. When asked whether he could consider a punishment of life imprisonment, he stated that they are turned loose too quickly and that murderers who are given a life sentence are “back on the streets in a few years and [do] it all over again.”

Although during an effort by the trial court to rehabilitate the prospective juror he did state that he could consider both penalty options by answering the questions under Article 37.071(b), V.A.C.C.P., as the law requires, his answers were equivocal and ambiguous in contrast to his earlier statements that demonstrated an unwillingness to consider life imprisonment. The overall picture presented by the voir dire examination of Payne is one of a person holding strong convictions that death is the only punishment he could consider for a person guilty of capital murder, and that life imprisonment is not adequate punishment and would not be considered.

In overruling the appellant’s challenge for cause, the trial court appears to have reasoned that Payne was cognizant of the two phase trial procedure and of the questions submitted to the jury pursuant to Art. 37.071(b), V.A.C.C.P., and since he testified that he could follow the court’s instruction that a “Yes” answer would be warranted to each question submitted at the penalty stage only upon a finding from the evidence beyond a reasonable doubt, that this was sufficient indication of Payne’s willingness to consider the alternative penalty of life imprisonment. Payne had testified on several occasions that he realized that a “No” answer to any of the questions by any of the jurors would result in the automatic imposition of a life sentence. Defense counsel remarked in his objections to the court that;

“We (the defense) have the right to know whether he can consider the full range of punishment, just as the state does and he has — the juror has testified that he cannot consider the minimum punishment in a capital murder case and if nothing else, we feel that that will have a defínate (sic) effect on his answering the final questions as the statutes set out and we would challenge the juror for cause. . . . ”

The question to be resolved is the following: does the fact that a juror indicates that he will return a “yes” answer to the questions submitted pursuant to Art. 37.-071, supra, only upon a finding from the evidence that the state has proven each issue submitted beyond a reasonable doubt comport with the clear requirement that a defendant should have a right to be tried by jurors who will consider the full range of punishment applicable to the offense in question? We are constrained to hold that a juror’s willingness to demand of the state that it prove each question submitted pursuant to Art. 37.071 beyond a reasonable doubt is not equivalent to an assertion that the juror will consider the full range of punishment for the offense in question. This is especially so in light of Payne’s rather adamant assertion that life imprisonment for him would not be a viable punishment alternative.

In Jurek v. State, 522 S.W.2d 934, affirmed 428 U.S. 262, 49 L.Ed.2d 929, 96 S.Ct. 2950 (1976), we held that Art. 37.-071(b) was not vague and that it did provide adequate guidance to the jury. It was further held that:

“[T]he fact that an exhaustive and precise list of factors is not specifically included (in Art. 37.071(b)) does not indicate that the jury is without adequate guidelines. We are inclined to believe that the factors which determine whether the sentence of death is an appropriate penalty in a particular case are too complex to be compressed within the limits of a simple formula. However, there are some factors which are readily apparent and are viable factors for the jury’s consideration. In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.” at 939-940.

In that a multiplicity of viable factors are present in the consideration of the punishment for each capital murder defendant, a willingness to hold the state to prove beyond a reasonable doubt on each of the Art. 37.071(b) questions does not insure, as well, that the juror will consider the full range of punishment in a particular case. It is too mechanistic to reason that Payne was a qualified juror because he was willing to require of the state to prove beyond a reasonable doubt the special issues submitted at the punishment stage. The law requires this and in addition requires that each juror consider the full range of punishment applicable to the offense in question.

It is certainly possible that a juror could hold the state to its burden of proof beyond a reasonable doubt on the special issues submitted at the punishment stage and still not be willing to consider life imprisonment as being a viable punishment under the circumstances. It is equally erroneous to reason that a juror has met the requirement of being able to consider the full range of punishment in a capital murder case when he has indicated that he could not consider life imprisonment as a punishment alternative by relying on his statement that he knew that a “no” vote to any one of the Art. 37.071(b) questions would mean that life imprisonment would automatically be assessed as the punishment. Indeed, the juror in that case has not expressed a willingness to consider the full range of punishment alternatives but has in fact acquiesced to the clear statutory mandate. For this reason, the judgment must be reversed.

In his second ground of error appellant contends that the trial court erred in admitting his confession into evidence in that he was denied the right to counsel prior to and during the taking of the confession.

In light of the disposition of this case, we need not decide this contention. We do find, however, that the instrument filed by the trial court and denominated as “Order relating to Voluntary Nature of Statement of Accused” is inadequate to apprise this Court of the trial court’s independent finding as to whether the statement was made under voluntary conditions as required by Art. 38.22(2), V.A.C.C.P. The appellant’s contention is that he re-asserted his Miranda rights during the interrogation and does not question the fact that initially he was advised of his rights as required by Art. 38.22(l)(c) and Miranda. The trial court’s findings do not address this specific contention. See Hester v. State, 535 S.W.2d 354, wherein we abated the appeal and directed the trial court to reduce to writing his findings on the disputed fact issues surrounding the taking of appellant’s confession raised in the grounds of error. For an example of an excellent compliance with the provisions of Art. 38.22(2), see Hester v. State, 544 S.W.2d 129. In the event this issue is raised at a subsequent trial, we recommend that the findings made therein comport with Hester v. State, 544 S.W.2d 129.

For the above reasons, the judgment is reversed and the cause remanded.

YOLLERS, Judge,

dissenting to the denial of motion for leave to file a motion for rehearing.

I dissent to the denial of the State’s Motion for Leave to File a Motion for Rehearing in this cause.

This cause was reversed because the trial court failed to sustain a challenge for cause as to prospective juror Payne upon the basis that he could not consider the full range of punishment if he found the defendant guilty of the offense of capital murder. My examination of the testimony of Payne on voir dire leads me to the conclusion the opinion in this cause is based upon a simplistic presentation of certain testimony, taken out of context, which does not truly reflect the basis for the trial judge’s ruling that Payne was not subject to challenge for cause upon this issue. A proper discussion of this matter requires a complete examination of the voir dire examination of Payne pertaining to this issue. For this reason, I have attached all of such voir dire examination as “Appendix I” to this opinion. (All references will be to pages of this appendix.)

To set the stage it should be noted that the questioning of Payne by the prosecutor elicited his position that in a capital murder case he could follow the law and consider the full range of punishment that he thought was proper under the facts in the case (pages 768 and 769). Later questioning by the defense attorney elicited the answer set out in the Court’s opinion indicating that Payne would vote only for the death penalty if he found appellant guilty of “capital murder” (page 770). However, the confusion of Payne is exhibited by his answers immediately prior to that point where he pointed out that death “shouldn’t be” the only possible punishment for capital murder (page 769) and it would depend upon the evidence as to whether he could consider life as a proper form of punishment (page 770). It was only after Payne was questioned about “it” being “proved beyond a reasonable doubt” (page 770) that he indicated he would not consider a life sentence.

The trial judge then questioned Payne and explained that even after a finding of guilt as to capital murder there must be a punishment phase of the trial where two questions would be submitted to the jury. He determined that Payne would require the State to prove to his satisfaction beyond a reasonable doubt that the questions should be answered “yes” before he would answer them “yes,” and if they failed to so prove beyond a reasonable doubt, the answer to the question would be “no” (pages 770-771). This was concluded with the Court’s question of Payne that he understood that if either question were answered “no” the only sentence that could be assessed would be life (page 771). It was at this point that the trial court overruled appellant’s challenge that Payne could not consider the full range of punishment.

After further examination of Payne by appellant’s counsel, he again reurged his challenge for cause. The careful trial judge again attempted to make certain that Payne understood that where a jury found the defendant guilty of the offense of capital murder they had the option of assessing the punishment at life imprisonment or death. Payne indicated that he could consider both options available by answering the questions as the law requires (pages 772-773).

It should also be noted that the trial judge concluded from this testimony that the prospective juror Payne had stated “that he would consider both of them, he told the Court that he would consider both punishments . . . death in the electric chair or life imprisonment, depending upon what the evidence, the side reached at the punishment phase of the case” (page 773). And the prospective juror confirmed this conclusion.

The judge then permitted further examination of this prospective juror. This ex-animation indicated that there was some confusion by the prospective juror Payne as to what constituted capita] murder, and that capital murder included the answering of the two questions at the punishment phase (pages 774-775). An examination of this testimony and the questioning by the trial judge indicates that the trial judge understood that the prospective juror was slightly confused about the definition of capital murder. This confusion clearly explains the contradictory answers as well as the indication in Payne’s previous testimony that he could not consider the punishment of life for someone who was guilty of “capital murder.”

An examination of all the testimony given by the prospective juror clearly indicates that he was not disqualified and the trial court did not err in overruling the appellant’s challenge for cause because this prospective juror could not consider the full range of punishment in a capital murder case. To reverse this case upon the basis of this record constitutes a removal of all discretion in the trial judge to determine any factual issue raised by contradictory answers of a prospective juror. Such a ruling effectively binds the trial court to accept an answer resulting from confusing and misleading questions even though the trial judge is able to see and observe the prospective juror, the questions, and the circumstances under which the testimony is given, and can clearly conclude from these circumstances that the answer does not truly reflect the feelings of the prospective juror.

Voir dire examination, especially in capital eases, has reached the point where it is far more important than the actual trial of the case. We should not encourage protracted, confusing and misleading voir dire by denying a trial judge the last vestige of discretion in a manner such as this. Where the trial judge has the opportunity to see and observe the prospective juror, listen to the questions and his responses thereto, and make the determination which this trial judge made, we simply should not second-guess him in the exercise of his discretion. As was pointed out in Hughes v. State, Tex.Cr.App., 563 S.W.2d 581:

"We must be mindful that where we only have a cold record before us the trial judge in passing on the answers of the ‘equivocating venireman’ has the opportunity to observe the tone of voice and demeanor of the prospective juror in determining the precise meaning intended.”

Even if this record is construed to show a “equivocating venireman,” there was no abuse of discretion by the trial judge. But the result reached by the majority in this case is clearly unwarranted where this record clearly supports his determination that the prospective juror was confused and the trial judge personally established that the prospective juror could consider the full range of punishment.

I dissent.

DOUGLAS and DAVIS, W. C., JJ., join.

APPENDIX I

Q Now, a murder case becomes a capital murder case in one of five or six different ways and I would like to tell you how that happens. If the victim of the murder is a law enforcement officer or a fireman in pursuit of his job at that time. Then, the law classifies that, as a capital murder case for which those two punishments are the range and that’s the full range, either life or death. The law also classifies murders for hire, such as if I hired someone for a certain amount of money, to kill someone else, then the law classifies that as capital murder. And, the law also classifies that if a person commits murder while he is committing or attempting to commit burglary, robbery, arson, kidnapping or rape, that this is also classified under our laws as capital murder. Now, do you understand the distinction between just plain murder and how it can become capital murder?

A Yes, sir.

Q All right. And the law also says, in a capital murder case, you must consider the full range of punishment before assessing punishment. You must consider both life imprisonment and death. Now, in a capital murder case, could you follow the law and consider both punishments before assessing what you thought was proper under the facts of the ease?

A Yes, sir.

Q In other words, there are some people, I’m sure, that would just think that a capital murder case, well, I think that the death penalty is the only punishment, and that’s all they could consider, but you could consider both punishments, before you actually assessed what you thought was proper. If you felt like imprisonment was proper under the facts, you could assess life imprisonment, if you thought the death penalty was proper after hearing the facts, you would assess the death penalty, do I understand you — ?

A That’s correct.

Q All right. Now, we — I’ve explained murder to you for this reason. I’m sure that the court will instruct you, that in a capital murder case, that if you fail to find the defendant guilty of capital murder, that you must then consider whether he’s guilty of some lesser included crime, such as murder. Now, murder being lesser included because it is a similar type crime, but it carries a lesser punishment range — possibilities.

Q Have you ever talked to anyone of your family or someone at work or anyone really, about what should be done with a person who has committed a capital offense?

A Well, I made the statement to my wife, I feel very strongly if a person, after pushing to take somebody’s life, he should— give his life.

Q Well, do you have some pre-conceived notion as to — that there ought to be only one punishment for murder?

A No, no, I’m talking about — exactly knowing without a shadow of a doubt — 4£ he is guilty or not, a person actually took another persons life then he should — the person should remember the fact — that he should give his life for another person’s life.

Q Well, if I can talk with you a minute on that. You understand as the district attorney explained to you, that there are two phases of trial, as what we refer to as the guilt and innocence stage where a defendant is proven innocent or guilty and at — then at that point, if a criminal defendant in any trial, if the jury returns the verdict of guilty, they would be saying, by that verdict, that yes, they believed beyond any reasonable doubt, that beyond a reasonable doubt, that that person did commit murder or capital murder, and then, after that, there is what we refer to as the punishment stage of the trial, and what I’m saying is, do you feel like, that if you were selected as a juror, if the jury and you were participating as a member of the jury, find the defendant guilty of, say capital murder, and that wouldn’t necessarily mean that in your mind as welkin other people’s minds, that you found beyond a reasonable doubt, that a defendant was guilty of capital murder. Do you feel like, at that point, that you have such an idea about a murder, and please understand me, no one would disagree with your opinion, no matter what it is, but at that point, there would only be, really one possible punishment, that being death that would be proper?

A It shouldn’t be.

Q All right, sir. Is — is this a firm conviction in your mind?

A Well, I ought to call it firm, yes,— I’ve always felt that way about it, I feel that if somebody knowingly takes some else’s life—

Q Yes, sir.

A —Then they should be willing to forfeit theirs.

Q All right, sir. Do you feel like it would be possible for you to consider a life sentence as a possible form of punishment in a capital murder case where — ?

A I’d say, really as far as I’m concerned about a life sentence in a murder case is a capital murder—

Q Yes.

A I don’t — I don’t go with them too good because they turn them loose too quick.

Q All right, sir. Well, do you feel like you could really consider life as a proper form of punishment?

A Well, it would depend on the evidence — of course.

Q Well —

A I would say this, if it was — like I said earlier, if it was proved beyond a reasonable doubt—

Q Yes, sir, well, may I stop you here — at this point, where — where we get to the point where we are talking about punishment—

A Un uh.

Q —At that point, it’s been proved beyond a reasonable doubt, okay?

A Okay.

Q Now, assuming that, do you feel like that you could honestly — and only you know what’s in your heart, I don’t or no one else does, and really, all we are interested in is finding out, what your ideas are so we can make intelligent selection of jurors.

A Yes.

Q Do you feel like that this has transpired and—

A Yes.

Q —Okay, now you are faced with the punishment phase of the trial. Do you feel like, honestly, you could — could consider life imprisonment or a sentence of life, do you feel like that your mind — your conviction is, that at that point, your mind is made up that death would probably be, at least in your mind, the only proper punishment for the defendant that you had found guilty of capital murder?

A Yes.

Q Is this a firm conviction?

A Yes, sir.

Q You feel like you could be swayed or persuaded by someone?

A No, I wouldn’t think so — it’s just one of those things that — I’ve read what education I’m sure about, had two — murdered and then give them the life sentence and turn them back on the streets in a few years and done it all over again.

Q Then, you really wouldn’t consider life — you wouldn’t even consider it?

A That’s right.

The Court: Let me interrupt you just a minute, counsel, because I think what we are getting astray here. You recall your questions by the district attorney and by— also by Mr. Knapp, that we have in this state what’s known as the two phase system. There is two phases to the trial. Of course they’ve explained to you that if you find a defendant not guilty of capital murder then you, could not under any circumstances, assess anyone the death penalty. You understand that?

A Right.

The Court: However, if you did find the defendant guilty of capital murder, that that jury only has two alternatives. However, as the district attorney pointed out to you, you might have to either find death or life, you are — you will be ask two questions in any case, whatever that case is, or where ever you may serve in this state under our present law, on a case that involves capital murder. And if you found a defendant guilty of capital murder, then on the second phase of the case, the jury, as the district attorney pointed out to you, the jury would be ask two questions. Now, the first question that you would be ask, would be substantially here as follows or substantially as follows. Do you find from the evidence beyon a reasonable doubt, that the conduct of the defendant caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased — of the deceased would result. Do you understand that question?

A Yes.

Now, the best — in order to answer that yes, you have to find from — beyond—from the evidence, beyond a reasonable doubt that fact. Could you follow that instruction of the court and would you follow that instruction of the court?

A I would.

The Court: And if you failed to find from a reas — from the evidence beyond a reasonable doubt that a defendant caused the death of the deceased, deliberately and with the reasonable expectation that the death of the deceased would result, would you answer the question no, if you failed to find that beyond a reasonable doubt?

A Yes, sir.

The Court: All right, the second question, assume that you answered that question and did find in that case, that — that the answer to that question should be answered yes, you stated that you would find — so find that you thought the evidence did establish it beyond a reasonable doubt, then you would have a second question to answer. That second question would either be as follows or substantially as follows, do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Do you understand that question?

A Yes, sir.

The Court: Now, would you require' the State of Texas to establish that to your satisfaction beyond a reasonable doubt, before you answer that question yes?

A Yes, sir.

The Court: And if they failed to prove to you beyond a reasonable doubt, that the answer to that question was yes, would you answer it no?

A Yes, if I had doubts on it.

The Court: If you had a reasonable doubt?

A Yes, sir.

The Court: Then, in effect, you are saying that if you — that you understand that if either of those questions were answered no, that the only sentence that this court or any court could assess in any capital case would be life — would be, therefore to your — and is it your answer that you would — is it your answer under the question that was submitted to you that you would require the state to meet it’s burden of proof — burden of proof beyond a reasonable doubt, before you would assess death as the penalty for the crime?

A Yes, sir—

The Court: All right.

Mr. Thompson: Your Honor, we still would like to challenge this juror because and point out to the court that defense, as we pointed out yesterday, the defense feels that we do have the right to ask the juror whether or not he can consider the "full range of punishment and we have the right to know whether he can consider the full range of punishment, just as the state does and he has — the juror has testified that he cannot consider the full range of punishment, although he could answer those two questions if the — if the court ordered him to do so, he’s testified under oath that he cannot consider the minimum punishment in a capital murder case and if nothing else, we feel that that will have a defínate effect on his answering the final questions as the statutes set out and we would challenge the juror for cause.

The Court: In view of the answers that you have given the court, you have said that you could consider the full range of punishment, there being only two ranges and you are required — and you would require the state to meet it’s burden of proof on both of those, beyond a reasonable doubt, is that your testimony?

A That’s right.

The Court: I’ll overrule your motion, counsel.

By Mr. Knapp:

Q In deciding whether to believe any witness, you’ve got to — you wouldn’t necessarily believe a police officer simply because he was a police officer?

A Not necessarily, I might not even know he was a police officer.

Q Well, I mean even if he were in uniform?

A I’m sure that a police officer will have a certain degree of influence on anyone—

Q Yes, sir, do you feel like you would tend to hear more truth in what a law enforcement officer said opposed to some other witness?

A Not necessarily, but you should be able to believe them more than—

Q Yes, sir.

A —They are supposed to know the law.

Q But, you can understand that law enforcement officer’s are just like everyone else, that they are subject to particular biases and prejudices themselves?

A Yes, sir

Mr. Thompson: Your Honor, before we pass judgment on this juror, we’d like to reurge our challenge on this juror and submit to the court that the defense feels we are entitled to a juror who qualified on the minimum punishment as well as the state is qu — is entitled to a juror who is qualified on the maximum punishment, expecially when talking about a capital murder case. The state had an opportunity to say, can you give the death penalty and will you give the death penalty, with nothing about those two questions that were ask of the juror, and I think we have a right to say can you give life in a capital murder case, can you consider the right in that case. This juror, as the court heard, testified that in a capital murder case, the death penalty was the only penalty to be in — that would be inflicted in the case, or it should be, that he could not consider life as a punishment in a capital murder case and the — because of that, we feel like the juror is not qualified as to the full range of punishment in the case, even though he can answer those other two questions yes, but if I’ve been instructed to answer those questions, only if I have a certain amount of evidence beyond a reasonable doubt, I’ll answer them that way, but still, I feel like we are entitled to have him corssed out on the full range of punishment.

The Court: Well, he stated, counsel, as I understand his answer, that he — he’s subject — would—would consider two range that he would answer each of those questions no if they did not, and that he knew the effects of that would be to assess life imprisonment rather than death, do you agree with that, that that’s his answer?

Mr. Thompson: I agree—

The Court: —Just misunderstand his answer?

Mr. Thompson: I agree that he said that.

The Court: Mr. Payne, I want to ask you, you understand again, and I want to make certain that you do understand this question, that you understand that in a capital murder case where a jury has found a defendant guilty of the offense of capital murder, that a jury has only two options—

A Yes, sir.

The Court: —Either to assess life imprisonment or death, you understand that, that’s the only two—

A Yes.

—Options in a capital murder case that a jury has. And is it your testimony that you would and could consider both options available by answering the questions as the law requires?

A Both the options, right.

The Court: And, you would consider both of them?

A The second option being if — if—I will—

The Court: If you felt that—

A —I will—

The Court: If you felt either—

A —

The Court: —Your answer to either of those questions, that I heretofore directed to you should be answered no, that the state had failed to prove beyond a reasonable doubt that you could answer yes to those questions, that you would answer each of them no, is that your — is that your ar — the one that was failed — in which they failed to prove beyond a reasonable doubt, you would answer that no, is that your answer?

A If they can’t prove it beyond a reasonable doubt—

The Court: And then would you conclude by that answer, tell this court that you would consider the full range of punishment, that is either death or life imprisonment?

A If they failed to prove the case, yes, sir.

The Court: If the state failed to prove it.

Mr. Knapp: Prove what case, sir?

A Prove — prove the — failed to prove the case of capital murder.

Mr. Knapp: That’s not the case, Your Honor.

The Court: Well, they failed to prove the two special issues that I’ve ask you by — preponderance — by—beyond a reasonable doubt, you would answer those questions no?

A If he’ll prove that the person only killed another person or they fail to prove that — the probability of committing future crimes—

The Court: Then you would answer it no?

A No.

The Court: All right, I’ll overrule it.

Mr. Thompson: Your Honor, I want to reurge then, and in saying that I feel like the court has so mingled the two questions, that I realize that you’ve ask the questions, but I think you’ve ask the questions including the punishment, thereby forcing the juror to answer the question that he could consider the full range of punishment. I feel that we are entitled to ask the juror whether or not he can consider the full range of punishment and disregard those two questions right now. The state can say can you give him this penalty, we ought to be able to say can you give life and forget about those two questions when we are asking that.

The Court: The state said that he could, though, counsel.

Mr. Thompson: The state is not — the state is not restricted by having to say can you give a death penalty by answering these questions yes or no, if they were, we’d have so many people that said they couldn’t give a death penalty on the jury. By qualified, says well, if the court said—

The Court: The juror has stated, though, that he would consider both of them, he told the court that he would consider both punishments.

Mr. Thompson: —

The Court: Or death or — or—or life— death in the electric chair or life imprisonment, depending on what the evidence, the side reached at the punishment phase of the case. Now, is that your answer?

A Yes, sir.

Mr. Thompson: Your Honor, I don’t feel that the juror understands that question, may I — may I ask just one — that one simple question to give us the opportunity?

The Court: All right, I want you to give him your answer — you can ask that question again, I’ll give you that opportunity.

By Mr. Thompson:

Q When we were talking before, when you and Mr. Knapp were talking before, he ask you if you had any—

The Court: Who is questioning the jur- or—

Mr. Knapp: I was.

The Court: —

Mr. Thompson: —

By Mr. Knapp:

Q Do you recall earlier when I explained to you that the trial was divided into two parts?

A Yes, sir.

Q And that at one part, if the jury found a criminal defendant guilty of capital murder, then they would have to consider punishment.

A Yes, sir.

Q At that point in the trial, let’s assume that — hypothetical question, that you are a juror and the jury has come back with a unanimous verdict, which is the only way it could be returned, of guilty of capital murder. Capital murder has been assessed. It is the knowing and intentional taking of an individuals life, without justification or excuse, and it fits into one of those catagories, either in the commission — rape or robbery or burglary or a police officer or fireman involved with the performance of their duties. That has been established at that point. Do you understand that?

A Yes.

Q There is no question about that, he knowingly and intentionally, it was murder it was capital — at that point and in that frame of mind, knowing that that had been done and you are on the jury, could you consider the imposition of a life sentence?

A I’ll say — you are putting the question confusing—

Q No, sir, I’m not, but the capital murder, forget those two questions right now, if you will.

The Court: You are not talking about any particular fact situation?

Mr. Knapp: No particular fact situation.

A No.

Q Except capital murder had been established and you were one of the jurors that said “yes” we find him guilty of capital murder—

A —(No response.)

Q Could you consider life?

A Say a capital murder had been proven?

Q Yes, sir.

A Without a reasonable doubt?

Q Yes, sir?

A And the — the second was that — the probability the person could commit—

Q No, sir, no, I’m saying—

The Court: You don’t have the right to go into that now—

Mr. Cummings: —

Mr. Knapp: Well, all right—

A Is this part of answering part of the question—

Q Well, if I may — I just want to know if you can, in your own mind consider a full range of punishment, if — if you’ve got capital murder and there is — beyond a reasonable doubt, can you consider, in your mind, the possibility of a life sentence, in a capital murder case that’s been proved beyond a reasonable doubt?

A I’d say if it was proved beyond a reasonable doubt in a capital murder case I still go with the same thing — statement I made before.

Q What is that, sir?

A Death.

Q And that is the only—

A —It’s proved beyond a reasonable doubt?

Q Yes, sir.

The Court: I want to make sure this juror understands that, because he started to say provided that he had answered the other two questions “yes”.

A If I had it would have been proven beyond a reasonable doubt.

Mr. Thompson: —

The Court—

Mr. Cummings—

Mr. Knapp:—

Mr. Cummings: —The two questions are part of it—

Mr. Thompson:—

The Court: He said, and there is a probability that he would prob — that he would probably do it in the future, that is — he said that’s part of the proof of this capital murder.

Mr. Knapp: No, Your Honor, that is not part of the proof.

The Court: Well, that’s what he says in his answer, though.

Mr. Knapp: Well, that is not the definitation that would be used in this trial for it, Your Honor, or any capital murder case. Capital murder is the intentional knowing and taking of a—

The Court: Now, I’m not going to make any mistake on this, because I want to make sure this juror understands—

Mr. Knapp: That’s what we are seeking—

The Court: All right, I understand that— you — you have stated that you — you could — if you the defendant guilty of capital murder, you understand that?

A I — I understand that.

The Court: Now, you’ve said that you think death is a prop — proper punishment for capital murder?

A That’s right.

The Court: But, could you assess death or would you assess death if you were unable to answer these other two questions “yes”?

A If you can’t answer the other two questions “yes” — then he wouldn’t be subject to death.

The Court: As far as you are concerned, that he is not — not subject to the death penalty, is that your answer?

A Well, I tell you this, if you answer the first one “yes” then the second one is only as to whether he’s going to commit future crimes or not.

The Court: And, if you answer that with a “yes” you think it’s capital murder?

A Capital murder.

The Court: And if you answer that with “no” you would not find him guilty of capital murder?

A No, sir.

The Court: And then, you would not assess his punishment at death?

A No, sir. I wouldn’t.—

The Court: All right.

Mr. Thompson: Not if what?

Mr. Knapp: Not if what?

A I’m saying that — I understand that—

Q Something about—

A —What I’m saying is if the man was found, by myself and the other eleven jurors, as being guilty, beyond a reasonable doubt, and if we also had, or myself in particular, had assumed that he was going to commit future crimes, then my answer to both questions would be “yes”.

Mr. Knapp: Your Honor, we would again—

The Court: All right, I’ll overrule your—

Mr. Knapp: —Reurge that our motion that this juror be striken from from — that he has unequivocally stated that he could not consider the minimum range of punishment.

The Court: All right, I’ll overrule your objection, counsel.

Mr. Knapp: Thank you very much, Your Honor.

      . “(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
      “(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
      “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
      “(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    John Wayne LITTLE, Appellant, v. The STATE of Texas, Appellee.
    No. 56629.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 29, 1978.

      Pepos S. Dounson, San Antonio, for appellant.
    Bill M. White, Dist. Atty., E. Dick Ry-man, Don Clowe, and Bennie F. Steinhau-ser, Jr., Asst. Dist. Attys., San Antonio, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAYIS, JJ.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction of aggravated rape. The punishment was assessed by the court at eighteen (18) years’ confinement in the Department of Corrections.

In two grounds of error, appellant claims that the evidence was insufficient to sustain the conviction and that the trial court erred in its charge to the jury. The record reflects that shortly after midnight on July 15, 1976, the prosecutrix was returning home from a discotheque when she experienced a flat tire on her automobile while driving on I.H. 10 in San Antonio. She testified that she pulled the car over to the side of the highway and got out to wait for someone to stop and help. After waiting some fifteen to twenty minutes, she observed a car pull off and drive back to where she was waiting. A man later identified as the appellant got out of the car and asked her if she needed assistance. When it was discovered that her spare tire was also flat, appellant offered to take her to get it fixed. Upon deciding that no service station would be able to repair the tire at such a late hour, the prosecutrix agreed to go with the appellant to a place where he said he could get some air for the tire. After first stopping at the prosecu-trix’s home so that she could change clothes, the record reflects that they drove to a small airport where the appellant said he was a member of a sky-diving club.

The prosecutrix testified that the appellant was going to use an air pump supposedly located at this airport in repairing her tire. Appellant told the prosecutrix that the pump was located in a building to which they would have to walk because of the muddy condition of the road. The prosecu-trix testified that as they walked in the direction of the supposed building the appellant was helping her and “talking nice” to her. The evidence reveals that the pros-ecutrix suddenly felt something strike her head and she lost consciousness. When she regained consciousness, the appellant was on top of her engaged in the act of intercourse. The prosecutrix testified that when she asked the appellant what he was doing he twice told her to shut her mouth or he would kill her. At this point the record reflects that the prosecutrix again lost consciousness.

The medical evidence introduced by the State revealed that the prosecutrix suffered severe bruises on the left side of her face, cuts in and around her mouth, her nose and left ear, several broken teeth and a broken jaw. The prosecutrix was unable to testify as to what the appellant used when he hit her.

Appellant claims that the evidence is insufficient to support a finding that the rape was perpetrated by threat of serious bodily injury and death to be imminently inflicted. The definition of rape in V.T. C.A., Penal Code, § 21.02, reads in pertinent part as follows:

“(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.
“(b) The intercourse is without the female’s consent under one or more of the following circumstances:
“(1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances

Aggravated rape is defined in V.T.C.A., Penal Code, § 21.03, as follows:

“(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code or rape of a child as defined in Section 21.09 of this code and he:
“(1) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; or
“(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.
“(b) An offense under this section is a felony of the first degree.”

Presented with facts almost identical to those in the instant case, this court in Luna v. State, 515 S.W.2d 271 (Tex.Cr.App.1974), held as follows:

. The record is clear that the prosecutrix was unconscious at the time of actual penetration. It is therefore virtually inconceivable that she could have given consent while in an unconscious state
“The prosecutrix testified that she scratched the appellant and that he pushed, hit, threatened and choked her just before she fainted. The testimony and photographs show fresh bruises and scratches on the prosecutrix. The force used by the appellant coupled with his threat to kill the prosecutrix and her resistance while conscious were sufficient evidence to demonstrate rape by force.” 515 S.W.2d at 273-274.

Although the Luna case was decided under the old Penal Code the reasoning is still applicable to the facts in the instant case. Here, the appellant struck the prosecutrix in such a manner as to break her jaw and cause her to lose consciousness. When she did regain consciousness, he threatened her life. We conclude that the State clearly met its burden of proof under the statute.

Appellant also urges reversal on the ground that the trial court erred in its definition of serious bodily injury when charging the jury. The trial court’s charge reads in pertinent part as follows:

“The term ‘serious bodily injury’ means physical pain, illness, or any impairment of physical condition that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

“Bodily injury” is defined in V.T.C.A., Penal Code, § 1.07(a)(7), as follows:

“ ‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.”

The term “serious bodily injury” is defined in V.T.C.A., Penal Code, § 1.07(a)(34), as:

“ ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

It is obvious that the trial court merely substituted the definition of “bodily injury” for the term “bodily injury” which is expressly included in the statutory definition of “serious bodily injury.” This is clearly not error. It is in fact a coherent and concise definition by which the jury could only have found that the appellant threatened “bodily injury” which amounted to “serious bodily injury” before rendering a judgment that the appellant committed aggravated rape. This ground of error is therefore overruled.

The judgment is affirmed.


author: ODOM, Judge. DOUGLAS, Judge,

text:
    Johnny James JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 52076.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 12, 1978.
    State’s Motion for Rehearing En Banc Denied Dec. 13, 1978.
    David B. Ziegler, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Andy M. Tobias, Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. We previously abated this case in a per curiam opinion because the trial court failed to file adequate findings of fact and conclusions of law relative to the voluntary nature of appellant’s confession. See Hester v. State, Tex.Cr.App., 535 S.W.2d 354. The appeal has now been reinstated.

In his brief appellant complains of error in the court’s charge to the jury.

The indictment alleges in pertinent part that:

“Johnny James Johnson did then and there unlawfully while in the course of committing theft of cash money owned by Benito R. Herrera, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol.”

The trial court in applying the law to the facts of the case charged the jury:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 8th day of April, 1974, in Harris County, Texas, the defendant, Johnny James Johnson, did, without the effective consent of Benito R. Herrera, the owner, take and exercise control over the corporeal personal property of Benito R. Herrera, to-wit money, from the possession of Benito R. Herrera, with intent then and there to deprive Benito R. Herrera of said money, and that said defendant, in so doing, and with intent to acquire and maintain control of said money, intentionally, knowingly, or recklessly caused bodily injury to said owner, or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant caused serious bodily injury to Benito R. Herrera, or defendant used or exhibited a deadly weapon, to-wit a pistol, then you will find defendant guilty of aggravated robbery as charged in the indictment.
“If you find from the evidence that the defendant committed the offense of robbery, as herein defined, but you have a reasonable doubt as to whether he caused serious bodily injury to Benito R. Herrera or as to whether he used or exhibited a deadly weapon in committing said robbery, then you will find the defendant guilty only of robbery, and not of aggravated robbery.
“If you have a reasonable doubt as to whether the defendant is guilty of any offense, that is, aggravated robbery or robbery, then you will acquit the defendant and say by your verdict not guilty.”

The indictment alleged robbery under V.T.C.A., Penal Code Sec. 29.02(a)(2), by alleging the appellant intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death and further alleged aggravation “by using and exhibiting a deadly weapon, namely, a pistol.” See V.T.C.A., Penal Code Sec. 29.03(a)(2).

We note that the charge is virtually identical to the charge condemned in Robinson v. State, 553 S.W.2d 371, 374. In Robinson, supra, we held that:

“This charge authorized the jury to convict the appellant as charged of aggravated robbery if they found, among other things, he intentionally, knowingly or recklessly caused bodily injury to the complainant and if they further found, beyond a reasonable doubt, the appellant caused serious bodily injury to the complainant. This was simply not alleged in the indictment. Further, the charge would have authorized a conviction for aggravated robbery if the jury found he intentionally, knowingly or recklessly caused bodily injury by using and exhibiting a deadly weapon. This was not alleged either. In fact, the charge authorized a conviction under every conceivable theory under V.T.C.A., Penal Code, Secs. 29.02 and 29.03, rather than limiting it to the theory alleged in the indictment.” (Emphasis added.)

In Robinson, supra, we cited with approval Ross v. State, 487 S.W.2d 744 and quoted therefrom that “Even though there was no objection to the charge at the time of trial, the error was fundamental and calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial.”

In Robinson, supra, and in Davis v. State, Tex.Cr.App., 557 S.W.2d 303, we held that jury charges substantially the same as used here, in prosecutions for aggravated robbery on substantially the same allegations as made in the indictment here, constituted fundamental error, and required reversal even in the absence of an objection to the charge. In the instant case the following objection was timely presented and overruled by the trial judge:

Defendant objects to the Court’s charge in that the indictment alleges the complainant was placed “in fear of imminent bodily injury and death. . . .” whereas the charge allows the jury to convict upon a finding of injury to the complainant, or upon the threat of imminent bodily injury or death.
The defendant further objects in that the State has failed to plead any bodily injury to Benito R. Herrera, however, the jury may convict upon such a finding.

Although the first paragraph of this objection is not sound to the extent that it objects to the charge on threat of imminent bodily injury or death (such theory being alleged in the indictment), it is valid in its objection to the charge on actual injury, and the second paragraph of the objection is likewise sound in this respect. The objection was sufficient to call the court’s attention to the error in the charge.

It was reversible error to overrule appellant’s objection to the jury charge, and we need not rely on the doctrine of fundamental error that required reversal on the same jury charge defect in Robinson v. State and Davis v. State, supra. See also Dowden v. State, 537 S.W.2d 5.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting on State’s Motion for Leave to File Motion for Rehearing.

The majority overrules the State’s motion for leave to file motion for rehearing. The motion should be granted for the reasons stated in Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976), and in Brewer v. State, 572 S.W.2d 940 (1978 (dissenting opinion)).

VOLLERS, J., joins in this dissent.


author: TOM G. DAVIS, Judge.

text:
    Raymond DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 55660.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 7, 1978.
    Rehearing Denied Dec. 20,1978.
    H. L. Edwards, Nacogdoches, for appellant.
    Herbert B. Hancock, Dist. Atty., Nacog-doches, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. Punishment was assessed by the jury at 25 years.

The appellant contends that the trial court erred by denying his motion to reshuffle the jury panel for his case.

The record reflects that prior to trial the appellant filed a written motion requesting that the jury panel drawn or selected for his trial be re-drawn in compliance with Art. 35.11, V.A.C.C.P. The transcription of the court reporter’s notes reflects that this motion was also orally urged to the judge before the jury panel had been brought into the courtroom for voir dire. The motion was denied by the trial judge.

Article 35.11, V.A.C.C.P., provides:
“The trial judge, upon the demand of the defendant or his attorney, or of the State’s counsel, shall cause the names of all the members of the general panel drawn or assigned as jurors in such case to be placed in a receptacle and well-shaken, and the clerk shall draw therefrom the names of a sufficient number of jurors from which a jury may be selected to try such case, and such names shall be written, in the order drawn, on the jury list from which the jury is to be selected to try such case, and write the names as drawn upon two slips of paper and deliver one slip to the State’s counsel and the other to the defendant or his attorney.”

Under this statute a defendant or the State, upon demand, is entitled to have the jury panel assigned to his case re-drawn in accordance with its provisions. Como v. State, Tex.Cr.App., 557 S.W.2d 93; Alexander v. State, Tex.Cr.App., 523 S.W.2d 720; Woerner v. State, Tex.Cr.App., 523 S.W.2d 717.

In the instant case, the motion was timely made before voir dire had begun. Alexander v. State, supra. Under Art. 35.-11, supra, the appellant had an absolute right to have the jury re-shuffled on demand. It was error for the court to deny the motion.

In cases where Art. 35.11, supra, has been violated, the appellant need not demonstrate that he has been harmed or that he was forced to take an unacceptable juror for the error to be reversible. Woerner v. State, supra; Moore v. State, 132 Tex.Cr.R. 403, 105 S.W.2d 250.

The judgment is reversed and the cause remanded.


author: ROBERTS, Judge.

text:
    Fred BEVILL, Appellant, v. The STATE of Texas, Appellee.
    No. 53780.
    Court of Criminal Appeals of Texas, En Banc.
    June 14, 1978.
    Rehearing Denied Dec. 20, 1978.
    Marion J. Craig, III, Hereford, for appellant.
    Andy Shuval, Dist. Atty., Hereford, for the State.
   OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

On original submission, we held that the trial judge did not commit reversible error by overruling the appellant’s objection when the prosecutor included in his voir dire examination of the jury panel an explanation of the range of punishment applicable to cases where both one prior conviction and two prior convictions were alleged in the indictment pursuant to V.T.C.A., Penal Code, Section 12.42. The Appellant’s Motion for Leave to File a Motion for Rehearing has been granted to consider whether our opinion on original submission is in conflict with Thomas v. State, 543 S.W.2d 645 (Tex.Cr.App.1976).

In Thomas v. State, supra, the defendant was indicted for burglary, enhanced by two prior felony convictions pursuant to V.T. C.A., Penal Code, Section 12.42(d), which states:

“(d) If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

The defendant attempted to inform the jury panel and later the selected jury of the punishment which would be imposed under V.T.C.A., Penal Code, Section 12.42(d) if the jury found the allegations in both enhancement paragraphs to be true. The trial judge prohibited the defendant from so informing the jury.

On appeal, this Court noted that under our former Penal Code — Article 63, V.A.P. C. — “the discussion of the result of a penalty absolutely fixed by law was not allowed during the voir dire examination nor during guilt or punishment stage of the trial.” Thomas v. State, supra at 646. We then noted that V.T.C.A., Penal Code, Section 12.42(d) preserved Article 63, V.A.P.C., of our former Penal Code, and concluded that “. . .it was proper for the trial court to prohibit the discussion of a punishment absolutely fixed by law during all stages of the trial.” Thomas v. State, supra at 646.

In the present case, the appellant was indicted for burglary of a building, enhanced by two prior felony convictions pursuant to V.T.C.A., Penal Code, Section 12.-42(d). The appellant, through a series of motions and objections, attempted to prevent the prosecutor from qualifying the jury panel on the punishment that could be assessed if the jury convicted the appellant and found either one or both of the enhancement paragraphs to be true.

The trial judge permitted the prosecutor to explain to the jury that if the jury found one of the enhancement paragraphs to be true, the range of punishment would be from 5 to 99 years or life. The trial judge also permitted the prosecutor to explain to the jury that if it found both of the enhancement paragraphs to be true, then the punishment would automatically be imposed at life by the trial judge. Thus, the trial judge allowed the prosecutor to explain to the jury not only the full range of punishment available if the jury found one enhancement paragraph to be true, but also permitted the prosecutor to explain the punishment that would be absolutely fixed by law if the jury found both enhancement paragraphs to be true.

Our opinion on original submission held that the trial judge did not abuse his discretion by permitting the prosecutor to explain to the jury the range of punishment if the jury found one of the enhancement paragraphs to be true. We also held on original submission that the trial judge did not abuse his discretion by permitting the prosecutor to explain to the jury that the punishment would automatically be imposed at life if the jury found both enhancement paragraphs to be true. Our holding was based upon Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974), and Reeves v. State, 491 S.W.2d 157 (Tex.Cr.App.1973). Neither Smith nor Reeves involves a similar factual situation. However, both Smith and Reeves stand for the proposition that it is within the trial judge’s discretion to allow the parties to question the jury panel to determine whether there exists a prejudice or objection by the members of the jury to the range of punishment provided for by the statute.

Thus, we are confronted with a conflict between our opinion on original submission, which held, inter alia, that it is not improper for the trial judge to permit a prosecutor to inform the jury that if it finds both of the enhancement paragraphs to be true, then the punishment will be automatically imposed at life by the trial judge, and Thomas, which held that it was proper for the trial judge to prohibit the defendant from informing the jury that if it finds both enhancement paragraphs to be true, then the punishment will automatically be imposed at life by the trial judge.

This conflict between our opinion on original submission and Thomas is further complicated by our opinion in Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977). In Burns, the defendant was charged with capital murder. The defendant asserted, among other things, that the trial judge erred in prohibiting him from informing the jury panel during the voir dire examination the effect of the “yes” or “no” answers to the questions that would be asked the jurors at the punishment stage of the trial pursuant to Article 37.071, Vernon’s Ann.C. C.P. We there stated:

“In Hovila v. State, [532 S.W.2d 293 (Tex.Cr.App.1975)] supra, while noting that the jury would know the effect of their answers to questions submitted under Art. 37.071, supra, it was stated: The ‘new statutes’ require ‘them [the jury] only to answer questions while the judge assesses the punishment based on such answers.’
“Since it is the duty of the jury to answer the factual inquiries and the duty of the court to assess punishment based on these answers, we find no error in the court disallowing counsel to tell the jury panel the effect of their ‘yes’ and ‘no’ answers.” (Emphasis added)

As is the case with the questions asked the jury pursuant to Article 37.071, Vernon’s Ann.C.C.P., we find that it is the jury’s duty to answer the factual inquiries of whether the enhancement paragraphs in an indictment are true. Where the jury finds two enhancement paragraphs to be true, it is the trial judge’s duty to automatically impose punishment at life. Where, however, either one or two enhancement paragraphs are alleged, there exists a possibility that the jury may find only one of the enhancement paragraphs to be true. In this event, it would be the jury’s duty to assess punishment. Where the jury may be called upon to assess punishment, both the State and the defendant have a right to qualify the jury on the full range of punishment. Thus, it is proper to inform the jury of the range of punishment applicable to an offense which is enhanced by one prior felony offense.

In light of the foregoing, however, we cannot conclude that there is a valid reason for a trial judge to permit either a prosecutor or a defense attorney to inform a jury that if it finds both enhancement paragraphs to be true, the punishment will automatically be imposed at life by the trial judge. Since there is no valid reason for a trial judge to permit a prosecutor to so inform a jury, we conclude that the trial judge abused his discretion by so doing in the present case. Also, we are unable to conclude that the abuse of discretion was harmless error beyond a reasonable doubt.

The judgment is reversed and the cause remanded.

ONION, P. J., dissents.

VOLLERS, J., not participating.

      . There is no need to set out these motions and objections. It is sufficient to note that the appellant timely and adequately objected to the trial judge's ruling.

      . The basis of the appellant’s attempt to prohibit the prosecutor from doing this was that the jury would be informed of the appellant’s prior convictions, and that this would violate the policy of Article 36.01(1), Vernon’s Ann. C.C.P., which states:
      “The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07."

      .Burglary of a building is a second degree felony. V.T.C.A., Penal Code, Section 30.02(c). Thus, under V.T.C.A., Penal Code, Section 12.-42(b), the applicable range of punishment if the jury found one of the enhancement paragraphs to be true would be that prescribed for a first degree felony. Under V.T.C.A., Penal Code, Section 12.32, the punishment for a first degree felony is life or any term of imprisonment not more than 99 years or less than 5 years.


author: DALLY, Judge. W. C. DAVIS, Judge,

text:
    Henry Davis LEVI, Appellant, v. The STATE of Texas, Appellee.
    No. 54668.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 21, 1978.
    Dissenting Opinion On State’s Motion For Rehearing Denied Dec. 20, 1978.
    Lynwood Sanders, Orange, for appellant.
    Jim Sharon Bearden, County Atty. and L. Jim Wallace, Asst. County Atty., Orange, and Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of theft of property of the value of more than $200 but less than $10,000. The punishment is imprisonment for four years, probated.

The appellant asserts that the trial court erroneously refused to submit to the jury a charge on the law of circumstantial evidence. We agree and reverse.

The appellant made a timely objection to the court’s charge because it did not include a charge on circumstantial evidence. He also timely submitted to the court a specially requested charge on the law of circumstantial evidence which the court refused to submit to the jury.

When the proof of theft is supported only by the unexplained possession of property recently stolen, a defendant is entitled to a charge on the law of circumstantial evidence, if it is timely requested or if there is a timely objection that the court’s charge does not include instructions on the law of circumstantial evidence. E. g., Hielscher v. State, 511 S.W .2d 305 (Tex.Cr.App.1974); Barber v. State, 127 Tex.Cr.R. 582, 78 S.W.2d 183 (1935); Brown v. State, 126 Tex.Cr.R. 449, 72 S.W.2d 269 (1934); Russell v. State, 108 Tex.Cr.R. 308, 300 S.W. 74 (1927); Taylor v. State, 27 Tex.App. 463, 11 S.W. 462 (1889); Lehman v. State, 18 Tex. App. 174 (1885). In this case there is proof that the appellant and two other persons were in possession of property recently stolen which they sold. These are circumstances from which the theft of property may be inferred, but there is no direct evidence of the taking of the property.

The judgment is reversed and the cause is remanded.

Before the court en banc.

STATE’S MOTION FOR REHEARING

W. C. DAVIS, Judge,

dissenting.

A majority overrules the State’s motion for rehearing without written opinion. It should be granted, and the conviction should be affirmed.

Appellant was convicted of theft of property valued at more than $200 but less than $10,000, V.T.C.A. Penal Code, See. 31.03. Punishment was assessed at four years probation. On original submission we held that failure of the trial court to charge the jury on circumstantial evidence was reversible error because proof of the theft was supported only by unexplained possession of recently stolen property. The State’s Motion for Rehearing is now before us and I am of the opinion that the motion should be granted.

The State urges that the expansion of the concept of theft under the “new” penal code requires a re-evaluation of existing authority in light of the changes. Our task, therefore, is to discover the changes, then to determine the impact of the changes.

Article 1410, Vernon’s Ann.P.C. limited theft to situations involving a physical taking of property. Under this provision, the accused had to physically take property in order to be convicted of theft. Further, if the State relied on unexplained possession of recently stolen property, a charge on circumstantial evidence was required because the jury had to infer that such possession resulted from a taking.

Provisions of the “new” code attempt to consolidate theft related offenses such as shoplifting and receiving stolen property under the general heading of theft. Appellant was prosecuted under V.T.C.A. Penal Code, Sec. 31.03(b)(1), which reads as follows:

“(a) A person commits an offense if, with intent to deprive the owner of property:
“(2) he exercises control over the property, other than real property unlawfully.
“(b) Obtaining or exercising control over property is unlawful if:
“(1) the actor obtains or exercises control over the property without the owner’s effective consent.”

Under this provision, an actual taking is not required; rather, the theft is realized by an exercise of control without the owner’s consent. If the State relies on unexplained possession of stolen property in a Sec. 31.03(b)(1) prosecution, the jury must still infer that the possession arises from an exercise of control without consent. Such an inference under the “new” code would still require a circumstantial evidence charge, unless the elements of the offense are otherwise established and the circumstances are merely corroborative. Asner v. State, 138 Tex.Cr.R. 420, 136 S.W.2d 822 (1939); Wilson v. State, 115 Tex.Cr.R. 308, 28 S.W.2d 804 (1930).

A theft under V.T.C.A. Penal Code, Sec. 31.03(b)(1) has four basic elements: (1) value; (2) exercise control of property; (3) without effective consent of the owner; and (4) intent to deprive the owner. If these four elements are established by other than circumstantial evidence, then a charge on circumstantial evidence is unnecessary. Asner, supra; Wilson, supra.

The value of the property (a television set) was established at $250 by a State’s witness. An exercise of control and an intent to deprive are shown by the sale of the television and acceptance of money by appellant. The remaining and most difficult point is the owner’s effective consent.

We were faced with a similar problem in Glover v. State, 566 S.W.2d 636 (Tex.Cr. App.1978), a prosecution for unauthorized use of a motor vehicle. In Glover, supra, the defendant was arrested while operating the complainant’s car. The complainant testified that he had not given defendant permission to take the car. There was no testimony that defendant did not have permission to use the car. We held such testimony overcame the need for a circumstantial evidence charge.

In appellant’s case, the complainant stated that no one had permission to enter his home or to remove goods from his home. This testimony shows there was no consent to the taking of the television. Comparing to Glover, supra, there was no testimony that appellant’s exercise of control was without consent. However, just as use following a non-consensual taking of an auto is unauthorized use, the exercise of control following a non-consensual taking is likewise without consent.

No charge on circumstantial evidence was required.

Having determined that no circumstantial evidence charge was required, we must now examine the remainder of appellant’s grounds of error presented on original submission. That one remaining ground of error alleges that the evidence is insufficient to support the verdict. I disagree.

On October 4, 1974, the complainant’s home was burglarized. Among items taken was a color television. On October 5, 1974, Ms. Walter purchased a color television from appellant and two others, giving appellant $50.00. This television was later confiscated by police and proved by serial numbers to be the television taken from the complainant’s home on October 4,1974. No one had permission to remove any goods from the complainant’s home.

These facts, when considered in the light most favorable to the verdict, establish a theft. The State’s motion should be granted and the judgment of conviction affirmed.

      . The statute is set forth in the language effective at the date of the offense, not the subsequent amendments.

      . Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976), a case cited by both State and appellant is distinguishable, being a case dealing with V.T.C.A. Penal Code, Sec. 31.03(b)(2).

      . These cases are “old” code, dealing with receiving stolen property and, as such, are of. precedential value to a Sec. 31.03(b)(1) case.

      . In Glover, supra, we held that proof of all elements but intent made a charge on circumstantial evidence unnecessary. The point of comparison is proof of unauthorized use in Glover, supra, with proof of lack of consent here.


author: W. C. DAVIS, Judge. ODOM, Judge,

text:
    Dennis BECK, Appellant, v. The STATE of Texas, Appellee.
    No. 54978.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 1, 1978.
    Appellants’ Motion for Rehearing En Banc Denied Dec. 13, 1978.

      Fred L. Nix, Longview, for appellant.
    Odis R. Hill, Dist. Atty. and Nathan M. Holt, Asst. Dist. Atty., Longview, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for murder. Punishment was assessed by the jury at seventy years’ imprisonment. The sufficiency of the evidence is not challenged.

Appellant raises two grounds of error. First, he complains of the trial court permitting the District Attorney on cross examination to impeach one of his character witnesses with the question, “Have you heard that Dennis Beck was charged and tried of assault with intent to murder?” To which the witness answered, “Yes”. Appellant contends that the question was asked in bad faith because (1) the prosecutor was aware of the fact that the appellant had been acquitted of the offense inquired about, and (2) that of eight character witnesses called by appellant, the question was asked of only one of them. The character witness of whom the question was asked had testified that appellant’s general reputation in the community for being a peaceful and law abiding citizen was good.

There is no showing in the record that the prosecutor was aware that the appellant had been acquitted of the offense about which the witness was asked. It is well established that this court cannot accept as fact allegations or assertions in an appellant’s brief which are not supported by the record. See Holcomb v. State, 523 S.W.2d 661 (Tex.Cr.App.1975). However, if the prosecutor had been aware of the acquittal, such would not have made the question inadmissible. Torbert v. State, 166 Tex.Cr.R. 311, 313 S.W.2d 303 (1958). Appellant’s first ground of error is overruled.

Appellant’s second ground of error complains that the trial court abused its discretion in overruling his amended motion for new trial based upon allegations of jury misconduct. The only testimony adduced at the hearing on the amended motion for new trial was by one of the jurors, Judy Richardson, who was called by the appellant. The State did not call any witnesses. In connection with discussion by the jury of the parole law, Richardson testified as follows:

“Q. In addition, in the questionnaire that I mailed to you and that you returned to me, did you — were you further asked whether or not the jury discussed the length of time the Defendant would have to spend in the penitentiary before he was paroled, or released from confinement?
“A. Some of the people repeatedly brought this up, even when the Foreman asked them not to; they would quit and then it would be brought back up again at another time.
“Q. Would you say that it was brought up on one or two times, or on many occasions, during the jury deliberations?
“A. No, it was brought up several; it was brought up more than twice.
“Q. Did anyone in particular make specific references with regard to how long the Defendant would have to serve if imposed a certain length of sentence? “A. Well, Mr. Dudley was talking about the fact that he did know something, like if you were given a ninety-nine year sentence for the crime, you would have to serve like a third of it, and then I honestly don’t remember who, but somebody said — I remember something being said about, well, like a thirty or twenty year sentence, how long — it was said, mentioned how long — in that persons’ opinion how long the Defendant would have to serve his time.
“Q. Did they further state that if a person received a twenty or thirty year sentence that the Defendant could get out of jail in seven years, and then someone else responded and said, no, it will be less than that, like four or five years?
“A. Well, the way that came up, somebody said, well, they will have to serve at least seven or ten years, and somebody said, no, it was less, and somebody said no it’s more.
“Q. But somebody did make the statement then on a twenty or thirty sentence _?
“A. Yes, sir. Right.
“Q. —that he probably would not have to serve but maybe four or five years, is this correct?
“A. Yes, statements were made to that effect.”

Richardson further testified that the subject of parole was brought up six or seven times; that the Foreman and other members of the jury admonished the others that they were not to consider parole; that she understood that parole was in the exclusive jurisdiction of the Board of Pardons and Paroles and she assumed that the others did.

Article 40.03, V.A.C.C.P., provides in part:

“New trials, in cases of felony, shall be granted the defendant for the following causes, u * * *
“(7) Where the jury, after having retired to deliberate upon a case, has received other evidence; .
“(8) Where, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial . . . ”

In Heredia v. State, 528 S.W.2d 847 (Tex. Cr.App.1975), in considering these two sections, we held that either principle, i. e., receipt of other evidence or misconduct of the jury could be relied upon, in the proper case, to require reversal for the jury’s discussion of the parole law during its deliberations. As to Section 7, we held:

“We adhere to those pronouncements in prior decisions that it is common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole, (cases cited omitted) Consequently, the mere mention of this common knowledge would not constitute the receipt of other evidence, nor would a further discussion of it constitute receiving new evidence any more than discussion of any other matter of common knowledge by the jury.

“ . . .a misstatement of the law, by being incorrect, would constitute other evidence, since by being false it certainly could not be classified as ‘common knowledge’, (cases cited omitted) The receipt of such other evidence, even if nothing further be shown as would constitute misconduct requiring a new trial under Section 8, on a proper set of facts could require reversal under Section 7.”

As to the applicability of Section 8 of Article 40.03, supra, we held:

“Distinct from the receipt of new evidence, discussion of the parole law, although common knowledge, would in every case constitute jury misconduct since the parole law is not for the jury’s consideration. But not all such misconduct necessarily denies the defendant a fair and impartial trial, and it is that standard which determines whether a new trial is required for misconduct under Section 8 of Article 40.03, supra.”

Thus, a misstatement of the law was held in Sweed v. State, 538 S.W.2d 119 (Tex.Cr. App.1976) to constitute other testimony as defined in Subdivision 7 of Article 40.03, supra. In Martinez v. State, 533 S.W.2d 20 (Tex.Cr.App.1976), a correct statement of the probation law discussed by the jury did not constitute such other testimony as to require reversal.

In Ashabranner v. State, 557 S.W.2d 774 (Tex.Cr.App.1977) we added to the “misstatement of the law” principle that the juror making the statement “did profess to know the law.” This was previously set out in Poweii v. State, 502 S.W.2d 705 (Tex.Cr.App.1974). In Ashabranner v. State, supra, the alleged jury misconduct was as follows: “We then deliberated the punishment to be given the Defendant. I was originally for around a ten year or greater sentence. One of the other male jurors, who was a hardliner for 20 years from the beginning, said, ‘If we give him a light ten year sentence, he’ll be out in 2 or 3 years.’ I then went up to fifteen years, and one of the ‘20 year-people’ talked about parole, and the fact that defendants never serve out their full term.” In affirming this conviction, we held: “While it appears from the affidavit that one of the jurors expressed his opinion as to when appellant might be released, he did not profess to know the law and did not misstate the law.”

In McIlveen v. State, 559 S.W.2d 815, (Tex.Cr.App.1977) the following assertions were made in the jury room during the deliberations on punishment: that if the jury gave appellant two years, he would be out in one year; that if the jury gave appellant ten years he would be free in eighteen months; and that if the jury gave appellant fifteen years he would be free in seven years. In affirming the conviction, we held: “In the instant ease, the evidence is not sufficient to show that any juror relied on or was influenced by the comments in the jury room to the appellant’s detriment.” After setting out the testimony of one of the jurors, we concluded: “While this testimony showed that the jury assessed fifteen years, it does not reveal that the statement was the cause of the assessment. In fact, Glazner (the juror) specifically testified that this was part of a discussion and that ‘no one still knew the law’. We have reviewed the record of the hearing on the motion for new trial and do not find any juror who testified that his or her vote was changed as a result of the discussion.”

And in the very recent decision in this court in Carrillo v. State, 566 S.W.2d 902 (Tex.Cr.App.1978) the testimony of one of the jurors was to the effect that she wanted to give fewer years than the punishment advocated by other jurors but it was explained to her by the foreman that if appellant behaved well in the penitentiary he would get out sooner. Based on this, she testified that she changed her mind about what was proper punishment. In holding this harmless error, we said: “The evidence shows at best that the jurors mentioned that which is common knowledge about the law of parole; i. e., some inmates of the Texas Department of Corrections are released prior to serving their full term, especially if they behave well in the penitentiary. No juror professed to know the law of parole and none misstated the law to the others.”

In the case at hand, it is undisputed that how long the appellant would have to serve in the penitentiary was discussed. Under the cases above cited, in order for this to constitute “other testimony”, the statements must have been made (1) by someone who professed to know the law, and (2) were misstatements of the law. Juror Richardson testified at the motion for new trial unequivocally “There was nobody that actually knew the law, just a lot of speculation.” Clearly none of the jurors professed to know the law of parole.

The improper statements of the jurors will next be looked to for determination of whether they were “misstatements of the law”. The statements made were testified to by Richardson as follows: (1) “if you were given a ninety-nine year sentence . you would have to serve like a third of it”. (2) “on a twenty or thirty year sentence, that he would not have to serve but maybe four or five years.”

Article 42.12, Section 15(a), V.A.C.C.P., provides that an inmate may be released who has served one-third of the maximum sentence imposed.

Article 6181-1, V.A.C.S., provides that an inmate may earn good conduct time as follows:

“Sec. 3. (a) Inmates shall accrue good conduct time based upon their classification as follows:
“(1) 20 days for each 30 days actually served while the inmate is classified as a Class I inmate;
“(2) 10 days for each 30 days actually served while the inmate is classified as a Class II inmate; and
“(3) 10 additional days for each 30 days actually served if the inmate is a trusty.”

Thus, on a twenty year sentence, a Class I inmate would be eligible for parole in four years and a trusty in three years and four months. On a thirty year sentence, a Class I inmate would be eligible in 6 years and a trusty in five years. Thus it appears the statements made in this case were not misstatements of the law and the jury was not misled thereby. Such therefore does not constitute receipt of “other evidence”.

We next turn to the consideration of whether the mentioning of parole, which we have held under Section 8 of Article 40.03, supra, to be misconduct, was such as denied the appellant a fair and impartial trial. Richardson’s testimony on this was as follows:

“Q. Do you feel that because of the discussions on the length of time the Defendant would have to serve in the penitentiary before he would be paroled or be released from confinement; do you feel that this caused the imposition of a more severe punishment in this case than would have been imposed had these discussions not taken place, or not discussed in the length that they were discussed?
“A. Maybe if they hadn’t been discussed in the length that they were discussed.
“Q. In other words, if they would have been brought up and then shut off at that time, then you are saying that it would not have had a bearing on the length of the sentence?
“A. Right. I don’t think it would have if it hadn’t kept coming up.
“Q. Would you say that some of the remarks were relied upon by you yourself and some of the other jurors in the imposition of the punishment?
“A. I don’t know about the other jurors; I didn’t consciously rely upon them. I do know I heard it and I did listen to it.
“Q. Do you think this had a bearing in the imposition of the punishment that you assessed in this case?
“A. Well, I really honestly don’t know. I know I did listen to it myself, and it could have had a bearing on it.”

Although it is obvious that the jury improperly discussed the parole law, we are unable to say that Richardson or any other juror changed his or her vote as a result of the discussion. Her testimony is conflicting and she could only speculate whether the discussion affected the other jurors. She was sure that she herself had not consciously relied upon the discussions.

It is well settled that issues of fact as to jury misconduct raised at a hearing on motion for new trial are for the determination of the trial judge. McCartney v. State, 542 S.W.2d 156 (Tex.Cr.App.1976) and cases cited therein. The court’s decision will not be reversed unless an abuse of discretion is shown. Appleman v. State, 531 S.W.2d 806 (Tex.Cr.App.1976) The trial judge, having the right to accept or reject any part of her testimony, obviously accepted Richardson’s statements that she did not know about the other jurors but that the discussion about parole did not influence her. We are unable to say that the trial judge abused his discretion in overruling appellant’s motion for new trial. Appellant’s second ground of error is overruled.

Finding no reversible error, the judgment is affirmed.

ODOM, Judge,

dissenting.

The majority make a shambles of the law on jury misconduct by reintroducing in the jurisprudence of this State the conflicting and complex petty considerations that should have no effect on the outcome.

Two striking examples of such irrelevant considerations injected by the majority are their consideration of the mental processes of the individual jurors and consideration of whether someone professed to know the law. The issue is what went on in the jury room, not what went on in the jurors’ heads. And wild speculation is just as harmful regardless of whether anyone professes to know whether those speculations are law or not.

It is clear from the testimony of the one juror who testified at the hearing that misconduct permeated the deliberations on punishment. The State failed to call other jurors and make a fact issue. It is sheer fiction for the majority to conjure up a supposed “fact issue” where the State neglected to make one.

I vigorously dissent.