text:
    Bernadine MAYFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 56431.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 25, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Roark M. Reed, J. Thomas Sullivan, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., W. T. West-moreland, Jr., Dan Guthrie and Kevin Byrne, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant was originally convicted in county criminal court of welfare fraud after a jury trial. Punishment was assessed at $75.00 fine. Four grounds of error are raised on appeal. However, we decide the case on the conclusion that fundamental error was committed below, and only that ground will be discussed.

The information in the record before us, omitting the formal parts, alleges that appellant did:

“knowingly and intentionally obtain assistance, services and treatment from the Texas State Department of Public Welfare ... by means of a willfully false statement . . . in an amount greater than that to which the said defendant was otherwise justly entitled.” (Emphasis added)

The court’s charge to the jury, in applying the law to the facts, authorized conviction if appellant:

“did then and there knowingly or intentionally attempt to obtain or obtain assistance, services or treatment. . . . ”
(Emphasis added)

The statute by which the conviction was obtained is Tex.Rev.Civ.Stat.Ann. art. 695c (Vernon 1978). The statute sets out three ways in which welfare fraud may be committed. An offense occurs if a person: (1) obtains, (2) attempts to obtain, or (3) aids or abets any person to obtain welfare assistance to which he is not entitled by means of a false statement or other fraudulent act. The information in this case alleges only that appellant obtained welfare, but the court’s charge authorizes conviction on a finding that appellant either actually obtained welfare or only attempted to obtain welfare. The charge therefore authorizes a conviction not alleged in the indictment, and fundamental error occurred. Robinson v. State, 553 S.W.2d 371 (Tex.Cr. App.1971); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977).

Our search of the case law reveals no decision involving a jury charge on an alternate theory of “attempt” which was not alleged in the indictment. However, we note that in Whitlow v. State, 567 S.W.2d 522 (Tex.Cr.App.1978), the indictment alleged that the defendant entered a building and committed theft. The court charged so as to authorize a conviction if entry was made “with the intent” to commit a theft. We held the charge to be fundamentally defective. Whitlow is analogous to the “attempt” charge in the present case.

The charge given by the court in this case is significant because of the nature of appellant’s defense at trial. Appellant admitted making a false statement to welfare workers concerning her employment at the time of receiving welfare payments in 1974. The State’s case was based on allegations that as a result of that statement appellant received payments to which she was not entitled. Appellant’s defense centered on her contention that she was actually enti-tied to those payments anyway because of certain work related expenses that she should have been credited with by the welfare department. Appellant therefore contended that she had not actually obtained benefits to which she was not “justly entitled.” The jury could have accepted that defense theory and still have convicted on the theory that appellant attempted to obtain benefits to which she was not entitled.

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

DALLY, Judge,

concurring.

The rule applied in this case is that expressed by the majority of this Court in the Robinson v. State, 553 S.W.2d 371 (Tex.Cr. App.1977), Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977), line of cases. I disagreed with the majority in their decisions in that line of cases. See Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979) (Concurring Opinion) and Clements v. State, 576 S.W.2d 390 (Tex.Cr.App.1979). Since the judges in the majority have not changed their opinions and since I have already fully expressed my opinion, I concur in the reversal of the judgment in this case.


source: Caselaw Access Project

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

license: Public Domain

text:
    Rojelio M. RANGEL, Appellant, v. The STATE of Texas, Appellee.
    No. 56348.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 16, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Marvin B. Zimmerman, San Antonio, for appellant.
    Bill M. White, Dist. Atty. and G. E. Wilcox, James W. Blagg and Lisa M. Beck, Asst. Dist. Attys., San Antonio, Robert Hut-tash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

W. C. DAVIS, Judge.

Appeal follows a conviction for delivery of heroin. Based on prior felony convictions, punishment was enhanced to life imprisonment. Two grounds of error are presented. We affirm.

The first issue is whether the trial court erred by failing to require the State to produce a police informant as a witness. Richard Moreno, an undercover police officer, testified that he was introduced to appellant at a bar on July 24, 1975, by an informer named Johnny Rodriguez. Officer Moreno stated that appellant sold him heroin contained in a small balloon. According to the officer’s testimony, Rodriguez was not present when the sale of heroin was made. There were no other witnesses to these events.

Appellant offered a different version of facts. He testified that Rodriguez came alone to the bar the morning of July 24, 1975. At the time, Rodriguez was in need of a “fix” but could not get heroin because he owed money to his supplier. Appellant testified that Rodriguez then asked him to buy the heroin for him. Appellant took fourteen dollars from Rodriguez and purchased half a gram of heroin. After the purchase, appellant gave the heroin to Rodriguez in the presence of Officer Moreno.

During a pre-trial hearing on November 5,1975, appellant’s counsel filed a motion to compel the State to produce Rodriguez as a witness. Officer Moreno testified on cross-examination that Rodriguez was his informant, but he had “no idea” where Rodriguez was at that time. Appellant’s counsel testified that he became aware that Rodriguez was a possible witness sometime shortly after September 22,1975, but was unable to locate Rodriguez, despite “every effort possible.” The trial court denied the motion.

Appellant’s counsel filed a second motion requesting the State to produce the witness or dismiss the case on April 12, 1976, the first day of trial. Appellant filed a similar pro se motion the same day. Both motions were denied with instructions to the State to produce the witness if his location were discovered.

Both appellant and the State rely primarily on Sigard v. State, 537 S.W.2d 736 (Tex. Cr.App. 1976). Appellant concedes that Si-gard requires only “that the process issue and due diligence be exercised in a good faith attempt to secure service of the process.” Appellant does not contend that the State failed to make a good faith effort to serve process. He argues that in Sigard there was evidence that the prosecutor took additional steps to locate the witness through the national computer system and the penitentiary systems. The prosecutor further instructed an investigator to check the neighborhood of the witness. Appellant contends that in the present case, “there is utterly no showing by the State of any efforts to locate the material witness Johnny Rodriguez.”

Additionally, appellant relies on two federal cases which were cited by the court in Sigard v. State, supra. The cases of United States v. Gentile, 495 F.2d 626 (5th Cir. 1974), and United States v. Hayes, 477 F.2d 868 (10th Cir. 1973), held that the State is not required to actually produce a witness, but should provide the last known residence of the informer and reasonable assistance in locating him.

The State responds to these contentions in two ways. First, it contends that Sigard only requires a good faith effort to serve process, and the duty to provide assistance only arises if the State affirmatively acts to conceal the identity of the informant. The reference to United States v. Gentile, supra, and United States v. Hayes, supra, in the Sigard opinion demonstrates that when an informant’s identity is revealed, the State should disclose the last known residence of the informer and provide “reasonable assistance” in locating that witness. The State is often in a uniquely superior position to acquire information about an informant’s location, and it should make that information available to a defendant upon request. However, whether the State provided reasonable assistance must be determined on a case-by-case examination of the facts.

An examination of the record here convinces us that the State did provide reasonable assistance in locating Johnny Rodriguez. Officer Moreno voluntarily revealed the name of the informant to appellant’s counsel .during the pre-trial hearing, about five months prior to trial. The felony records department of the prosecutor’s office was made available to appellant’s attorney, along with the assistance of an employee of that office. Jail officials at the Bexar County jail assisted appellant’s counsel in examining their records. Police officers voluntarily spoke with appellant’s court-appointed investigator. It is apparent that the State attempted to cooperate, but had no information which could aid in the location of Johnny Rodriguez. Therefore, the trial court did not err in refusing to instruct the State to produce the witness or dismiss the case.

Ground of error one is overruled.

In his second ground of error, appellant challenges an instruction given by the trial judge on the issue of entrapment. The portion of the charge in dispute reads as follows:

“Therefore, even if you believe from the evidence beyond a reasonable doubt that the defendant committed the offense as alleged, but you further believe, or you have a reasonable doubt thereof, that he was induced to do so by Johnny Rodriguez, who was a person acting in accordance with instructions from a law enforcement agent, to-wit: Richard Moreno, who used persuasion or other means likely to cause persons to commit the offense, and that the conduct of the said Johnny Rodriguez did not merely afford the defendant an opportunity to commit the offense, if any, you will find the defendant not guilty.”

Appellant complains that the emphasized language above was improper because it required him to prove that the undercover officer (Moreno) specifically instructed the informer to entrap appellant.

The State responds by saying that error, if any, was not properly preserved. The objection to the charge made at trial did not refer to the issue now raised on appeal, so the State is correct that Art. 36.14, Vernon’s Ann.C.C.P. was not complied with. Moore v. State, 542 S.W.2d 664 (Tex.Cr.App. 1976); Jones v. State, 481 S.W.2d 833 (Tex.Cr.App. 1972). However, appellant argues that he complied with Art. 36.15, Vernon’s Ann.C.C.P. by submitting a specially requested charge. There is in the record a document entitled “Defendant’s Requested Charge on Entrapment” which was filed with the clerk on April 13, 1976, the day before the charge was read to the jury. The document is not certified by the judge, and defense counsel has the responsibility of obtaining that certification. Reeves v. State, 516 S.W.2d 410 (Tex.Cr. App. 1974). We concluded in Reeves that error was not preserved. However, an examination of the entire record in this case convinces us that the document was properly brought to the attention of the trial court and the Reeves case is distinguishable.

The statement of facts indicates that on April 14, 1976, the following transpired:

“THE COURT: All right, Mr. Zimmerman, you have a copy of the proposed charge of the court, do you not?
“MR. ZIMMERMAN: Yes, Your Honor. “THE COURT: And you have filed written objections to the charge?
“MR. ZIMMERMAN: Yes, sir. I have filed both a requested charge and a written objection to the charge.
“THE COURT: Does the state have a copy of that?
“MR. WILCOX: Yes, sir. I have a copy, and I understand it centers around the definition of entrapment.
“THE COURT: Well, the objection to the charge will be overruled. And the special requested charge will be overruled. The Court feels that the charge as presented on Page 3 on the issue of entrapment is the proper charge.”

In Reeves v. State, supra, the requested charge was dictated into the record at trial. Three months later at the hearing on the fourth amended motion for new trial, the defense counsel produced a document which he said was presented to the court at the time of trial. The trial judge indicated that he had no “ ‘independent recollection of the offer of this purported requested charge . ’ ” The document was not dated or signed, and it was not designated as a requested charge.

The only similarity of this case to Reeves is failure by appellant’s counsel to have the requested charge signed and certified by the trial judge as he should have done. However, the instrument is signed by counsel; it has the file date in the record; it is designated as a requested charge; and the statement of facts shows it was presented to the court and overruled. In light of these factors, we conclude that error, if any, was preserved for review.

The relevant portion of the charge requested by appellant was as follows:

“Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the defendant committed the offense of delivery of heroin as alleged in the indictment, but you further find, or have a reasonable doubt thereof, that the defendant engaged in the conduct charged because he was induced to do so by a law enforcement agent, to-wit: Johnny Rodriguez, using persuasion or other means likely to cause persons, to commit the offense . . . you will acquit the defendant . . . ”

The essence of appellant’s argument is that Johnny Rodriguez should have been designated as a “law enforcement agent” as was done in his requested charge. Appellant reasons that the inclusion of the phrase “who was a person acting in accordance with instructions from a law enforcement agent” in the charge as given may have misled the jury into believing that those “instructions” must have been specifically to entrap appellant rather that to generally act as an informer.

The State correctly points out that V.T.C.A. Penal Code, Sec. 8.06(b) defines “law enforcement agent” as “any person acting in accordance with instructions from [law enforcement personnel].” The language of the charge given merely tracked that part of the statutory language, and by tracking the language of Sec. 8.06(b) the charge of the trial court correctly instructed the jury on the law of entrapment.

It seems that appellant would have a far better ground of error had objection been made to the State’s jury argument on the entrapment issue and that objection then been urged on appeal. In arguing the charge, the prosecutor presented to the jury the issue of entrapment as follows:

“MR. WILCOX: And you will find under this entrapment flim flam thing that it says that you have to find that Johnny Rodriguez got instructions from Richard Moreno to go over there and say, ‘Go get me some heroin.’
“MR. ZIMMERMAN: Your Honor, I’m going to object to that.
“THE COURT: It will be overruled.
“MR. ZIMMERMAN: Please note our exception. He’s misstating the charge.
“THE COURT: Overruled.
“MR. WILCOX: —that Richard Moreno has to have told Johnny Rodriguez, ‘You go over there and get this man to sell to you, and you pretend that you’re sick.’
“MR. ZIMMERMAN: Your Honor, I’ll object to that, the charge in no way tells them that, ‘You have to go over there and get — ’
“THE COURT: Overruled.”

Sec. 8.06(b) clearly requires some type of communication between the law enforcement official and his agent or informant, then action by the informant on this communication. The nature of this communication and the extent to which the informant must be instructed or controlled by the law enforcement official has yet to be determined by this Court. However, the mere classification or labeling of a citizen as a “police informant” is clearly insufficient when one considers the language of Sec. 8.06(b) and the practice commentary following. That commentary provides:

“The promotion of crime by anyone for the purpose of enforcing the law is questionable, and it certainly should not be permitted by agents over whom the police have control. Thus, the police should at the very least, apprise their agents of methods not to be used.”

The quest in such cases is to determine the degree of police involvement and to judge whether that involvement provided only the opportunity for the criminal mind to commit the offense. Lopez v. State, 574 S.W.2d 563 (Tex.Cr.App. 1978). Such an examination must cover two areas.

The first area of inquiry should be the specific case at bar. A search must be made to determine if the officer specifically instructed his agent or informant to use an improper procedure to “make a case” against a particular defendant. If such specific instructions are discovered, the entrapment defense is available. It was this type of specific entrapment toward which the State directed its final remarks. However, there is a second area of inquiry to which attention must also be given.

The control or instruction from a police officer to his informant which would constitute entrapment may also be of a general nature. Such general control might arise when an informant has been used repeatedly. After the informant becomes “experienced,” he realizes how to “set up” people to make cases. In such a situation, there is no specific instruction but the police official is still exercising control by failing to properly instruct his agents. Factors for consideration in such cases include number of cases this informant has been involved in and their disposition, if available; the amount and method of compensating the informant; the working relationship between the police officer and the informant; and his contacts with police officers.

Here, the record reflects that Rodriguez and Moreno had worked together on twenty-five to thirty cases and that Rodriguez had also worked with other police officers in making narcotics cases in the past. Therefore, the record contains much information supporting the general control type of entrapment. Whether this evidence supports entrapment as a matter of law is not an issue before us because appellant failed to bring this issue forward on appeal. Appellant’s complaint concerned the charge of the court on entrapment, and that charge which tracked Sec. 8.06(b) is correct.

The judgment is affirmed.

CLINTON, Judge,

dissenting.

The majority sets out a proper test for determining when an informant may entrap a defendant, admits that the evidence raises an issue as to whether the informant in this case entrapped appellant, and then approves a charge which does not adequately inform the jury of the law as it applies to the facts of this case.

The charge given by the trial judge did in part track the language of V.T.C.A. Penal Code, Sec. 8.06(b). However, the phrase “who was a person acting in accordance with instructions from a law enforcement agent” was ambiguous in that it failed to clarify how specific those “instructions” must be. Appellant’s complaint is that the charge may be interpreted in two ways: (1) that the informant, Rodriguez, was acting under specific instructions from the undercover agent, Moreno, to entrap appellant, or (2) that Rodriguez was acting under general instructions to perform as an informant gathering information for drug offense arrests. The majority correctly states that under proper circumstances a jury could find entrapment in either of the above situations. However, the charge does not convey that fact to the jury, and it creates a substantial risk of misleading the jury into believing that only specific instructions to entrap will suffice.

The extent of the confusion caused by the charge given in this case is vividly demonstrated by the jury argument of the prosecution:

“MR. WILCOX: And you will find under this entrapment flim flam thing that it says that you have to find that Johnny Rodriguez got instructions from Richard Moreno to go over there and say, ‘Go get me some heroin.’
MR. ZIMMERMAN: Your Honor, I’m going to object to that.
THE COURT: It will be overruled.
MR. ZIMMERMAN: Please note our exception. He’s misstating the charge.
THE COURT: Overruled.
MR. WILCOX: —that Richard Moreno has to have told Johnny Rodriguez, ‘You go over there and get this man to sell to you, and you pretend that you’re sick.’
MR. ZIMMERMAN: Your Honor, I’ll object to that, the charge in no way tells them that, ‘You have to go over there and get — ''
THE COURT: Overruled.”

It is apparent from the above colloquy that both the State and trial judge believed that the charge instructed the jury to find entrapment only upon a conclusion that the agent specifically instructed the informant to go to the bar and entrap appellant. This conclusion is further supported by a portion of appellant’s jury argument objected to by the State:

“MR. ZIMMERMAN: Entrapment doesn’t have to be by a uniformed law officer or by an undercover officer. And you’re instructed right here that if he was induced by Johnny Rodriguez- — •
MR. WILCOX: We’ll object to that as being a misstatement of the law. The law states very simply on Page 3 that he has to be induced by Johnny Rodriguez, acting on instructions from a law enforcement agent.
THE COURT: Sustained. The law is contained in the charge that you will take with you. And you will be guided by the charge of the Court.”

If both the prosecutor and the trial court were so persuaded as to what the charge meant, there is no reason to believe that the jury understood otherwise. It is therefore unfathomable whether the jury rejected appellant’s testimony that Rodriguez initiated the criminal activity or instead decided that Moreno did not specifically instruct Rodriguez to do so, thereby making an entrapment defense legally impossible. If the jury concluded the latter, the conviction would be based on an incorrect theory of law as demonstrated by the majority opinion.

The charge submitted by appellant attempted to rectify the problem by simply designating Johnny Rodriguez as a “law enforcement agent” and not including the “acting under instructions” language at all. His suggested charge was taken from Will-son’s Texas Criminal Forms, Sec. C-8.06 (Supp.1974). Such a charge would have been adequate to let the jury know that Rodriguez could have entrapped appellant through his own actions and would have avoided possible confusion about instructions given by the undercover officer.

Perhaps the best charge would be that suggested by Texas Criminal Pattern Jury Charges, Sec. 8.06 (1975), published by the State Bar of Texas. That charge would read as follows:

“Therefore, even if you believe from the evidence beyond a reasonable doubt that the defendant committed the offense as alleged, but you further believe, or you have a reasonable doubt thereof, that he was induced to do so by_, who was a law enforcement agent, to wit: _, who used persuasion or other means likely to cause persons to commit the offense, to wit: -, and that the conduct of said - did not merely afford the defendant an opportunity to commit the offense, if any, you will find the defendant not guilty.”

The first blank space would contain the informant’s name. The second blank space would contain a brief explanation of the informant’s relation to the police. For example, the charge might state, “to wit: a person acting under specific instructions from police agents to entrap (the defendant).” Or it might state, “to wit: a person assisting police agents on a continuing basis in obtaining information for drug offense arrests.” Whatever the appropriate facts for the particular case, the charge would allow the judge to explain that the informant could have entrapped the defendant under a variety of agency theories and not only under specific instructions from an agent to entrap.

For these reasons I respectfully dissent.


author: TOM G. DAVIS, Judge.

text:
    Henry Joe JERNIGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 57634.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 6, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      William F. Alexander, George Street, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler, L. S. Eubanks, Jr. and C. Wayne Huff, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. V.T.C.A. Penal Code, Sec. 19.02. Punishment was assessed by the jury at 18 years.

Appellant contends that the trial court erred in admitting evidence of an extramarital affair of his wife as proof of appellant’s motive to kill her. Appellant maintains that the State failed to prove that he had knowledge of the actions of the deceased shown by this evidence. A review of the evidence is necessary to the disposition of this contention.

Appellant had picked his wife up from work on the day of her death. After first taking a co-worker home, appellant and his wife arrived at their apartment at about 4:30 p. m. The manager of the apartment saw the appellant leave his apartment and go to the mail box, but did not see him return. The manager’s wife saw appellant return to the apartment and then leave again. When appellant left the second time she heard him call back into the apartment, “I’ll be back in just a minute.” She stated that this occurred at 4:50 or 4:55.

Gregory Smith, appellant’s employer, testified that he called the apartment between 5:00 and 5:15 p. m. that same afternoon. Appellant’s wife answered the phone, and then Smith spoke to the appellant.

Kay Wilson, appellant’s niece, testified that she received a call from the appellant between 5:00 and 5:05 p. m. He asked her to go shopping with him and the deceased in 45 minutes. She agreed, but later changed her mind. She called appellant’s apartment five minutes after receiving the first call, but the phone was not answered.

Shirley Kierig, a medical receptionist, testified that the appellant arrived at her office for a doctor’s appointment at 5:15 p. m.

Lawrence Garris testified that appellant entered his convenience store at 5:20 p. m. and purchased a soft drink. Appellant then went to Kay Wilson’s apartment to pick her up.

Wilson and appellant returned to his apartment at 6:00 p. m. Wilson discovered appellant’s wife strangled to death in a bedroom.

The deceased had been strangled with an electrical extension cord. Although her blouse had been removed and bra torn, there were no indications that she had been raped. Further, no items were missing from the apartment and there were no signs of forced entry. There was no physical evidence linking the appellant to the death.

Although appellant did not testify at trial, a statement he made to the police soon after the murder was entered into evidence. In this statement appellant stated that the deceased was alive when he left the apartment. He further detailed his activities on the afternoon in question.

The State sought to introduce testimony of a relationship between the deceased and a co-worker, David Taylor. Appellant objected to this testimony on the grounds that it had not been shown that the appellant had knowledge of the relationship. The trial court first sustained the objection, but ultimately allowed the prosecutor to question the witness regarding the relationship. The trial court allowed the prosecutor to proceed when he stated that he could show the defendant’s knowledge through another witness. Appellant noted his exception to this change in the court’s ruling.

Taylor testified that he began going out with the deceased in January, 1975. This relationship continued in the succeeding months. According to Taylor, on the Saturday night before the Monday murder he had been out with the deceased until 5:00 a. m. They had been parked near a lake, where they had “made out.” He further related that he had written letters or sent cards to the deceased on some five or six occasions. He denied ever having intercourse with the deceased.

The State maintains that testimony from two witnesses established that the appellant knew of the relationship.

Pat Fincher, the deceased’s aunt, testified regarding a conversation between the appellant and the deceased in her presence. This conversation occurred some 10 days before the murder. Fincher testified that:

“Q. What happened then?
“A. I made a laughing comment about it at that time, about him, quote, dialing his finger off, and Joe had just come back in the door from taking another load to the car and Joe walked up to us and asked who were we talking about and Sissy said David and then she said, ‘See, you didn’t believe me when I told you that Joe knew that Dave was calling me.’ And then Joe said ‘Well, Dave, he’s a good ol’ boy, but if I ever find out that they’re doing anything besides talking, zap, that’s it.’
“Q. Did he make any gestures with his hands?
“A. A wringing motion.”

She further testified to other threats made by the appellant against the deceased if he ever caught the deceased “running around on him.”

Miki Jo Howard, a dancer at a night club, testified that she had known the appellant for approximately three years. She stated that he would come into the club to talk with her, and sometimes came to her home. She testified that the appellant had never told her that he suspected that his wife was seeing another man. She stated that Danny Tidwell had told her that the appellant suspected that the deceased was involved with another man. According to her, these suspicions were “from some letters.”

Danny Tidwell, a friend of the appellant, testified at trial. He was not questioned regarding the appellant’s knowledge of his [appellant’s] wife’s extramarital relationships.

The State also contends that appellant first “opened up the area concerning the extramarital affairs of the deceased.” The State points to the testimony of the investigating police officer elicited on cross-examination by defense counsel. The officer stated:

“Q. Could you tell us how many boyfriends Anita [the deceased] had had during her marriage to Joe Jer-nigan that you know of?
“A. During the investigation I found at least three.”

Appellant maintains that his knowledge of the extramarital relationship must be proven before evidence is admissible to show motive. The State advances no other theory upon which this evidence would be admissible, but instead maintains that appellant’s knowledge of the affair was shown by the two witnesses.

We first observe that Taylor’s testimony revealed two distinct facts. First, his testimony showed an extramarital affair extending over five months including testimony that Taylor had “gone out” with the deceased and sent letters to the deceased. Second, his testimony showed a specific instance in this relationship, the all-night meeting between Taylor and the deceased preceding the murder by only two days.

This Court has long held that evidence of a wife’s extramarital relationships is admissible to show a motive to kill only if it is shown that the defendant knew of the relationship. Phillips v. State, 22 Tex.App. 139, 2 S.W. 601; Bradley v. State, 102 Tex. Cr.R. 41, 277 S.W. 147. See, Bailey v. State, Tex.Cr.App., 532 S.W.2d 316, 325 (Dissenting Opinion on Appellant’s Motion for Rehearing).

V.T.C.A. Penal Code, Sec. 19.06, provides: “In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.”

Thus, Sec. 19.06, supra, would allow admission of this evidence if it:

1.shows relevant facts and circumstances surrounding the murder; or
2. shows the previous relationship between the appellant and the deceased; or
3. shows the condition of the mind of the accused at the time of the offense.

The conduct of the deceased prior to her death would be relevant only if a connection between this conduct and her death is shown. The only possible connection between her extramarital affair and her death would be the inference that the affair supplied the motive for' her murder. As stated above, there can be no inference of motive from this evidence unless the appellant knew of her relationship with Taylor.

Second, Sec. 19.06, supra, allows a showing of the relationship between the accused and the deceased, not the deceased and third parties. Jackson v. State, Tex.Cr.App., 552 S.W.2d 798.

Finally, the evidence of the deceased’s relationship with Taylor would affect appellant’s state of mind only if he had knowledge of the relationship.

The testimony from Fincher showed only that appellant knew that Taylor had been “calling” the deceased. The appellant’s threat to kill the deceased if he ever found that the relationship had gone any further than “talk” falls far short of showing that the appellant knew of the five-month affair and particularly the specific instance on the Saturday preceding the murder.

Howard’s testimony likewise falls short of showing knowledge. At best, her testimony shows no more than a suspicion.

The evidence is insufficient to show appellant’s knowledge of the relationship between Taylor and the deceased. Moreover, even if the evidence were sufficient to support an inference of knowledge of the relationship generally, there is clearly no evidence of knowledge of the specific instance on the Saturday preceding the deceased’s death. The admission of this testimony was error.

Finally, the State’s contention that the appellant elicited testimony that opened up the area for the State’s inquiry is without merit. We are not faced with the situation in which evidence was introduced generally showing the existence of the extramarital relationship. The State introduced evidence of a specific occurrence a short time before the death. The testimony that she had three boyfriends at some time during the marriage did not entitle the State to show the specific instances that could have been the triggering factor in the murder, nor the particulars of this specific affair.

We hold that admission of Taylor’s testimony regarding his relationship with the deceased was reversible error.

The judgment is reversed and the cause remanded.

      . The State maintains that this ground of error was not properly preserved for our review. The record reflects that when the State first asked Taylor about his relationship with the deceased, appellant interposed the following objection:
      “MR. ALEXANDER [defense counsel]: This, Your Honor, we object to. There has been no predicate laid to show that the defendant was present, that he was aware of the situation that he is trying to go into and I suggest that it is inadmissible, it is not relevant. Though this may be a circumstantial evidence case, there is nothing to connect the defendant with that conduct or any responsibility toward the law for the conduct of other people. There is no showing that the defendant knew about the conduct prior to the time of her death.”
      The trial court allowed the prosecutor to proceed when he stated that he could show the appellant’s knowledge through another witness. Appellant noted his exception to this action.
      After both sides closed, the appellant made the following motion:
      “MR. ALEXANDER: Comes now the defendant in the above entitled and numbered cause and moves the Court to strike the testimony of David Lee Taylor, which has heretofore been objected to and instruct the jury to disregard the testimony of David Lee Taylor as regards his, David Lee Taylor’s acts, utterances and declarations outside the presence and knowledge of the defendant for the reason that such acts, utterances and declarations are hearsay as to the defendant and inadmissible.
      “Respectfully submitted.”
      The record does not reflect a ruling on this motion, but no instruction was given.
      The actions of defense counsel were sufficient to preserve this ground for appeal.


text:
    Kelly SPAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 57872.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 6, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.
    Charles W. Fairweather, Amarillo, for appellant.
    Tom A. Curtis, Dist. Atty., and David L. Gleason, Asst. Dist. Atty., Amarillo, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from conviction for theft over $10,000. V.T.C.A. Penal Code, Sec. 31.03. Punishment was assessed by the jury at ten years, with the recommendation of probation.

Appellant contends that the trial court’s refusal to allow cross-examination of the State’s witness Garret Gilmore, in order to establish his bias or motive in testifying, denied appellant his constitutional right to confrontation. U.S.Const. Amend. VI; Tex.Const., Art. I, Sec. 10. The evidence germane to disposition of this contention will be reviewed below.

Appellant’s wife, Peggy Spain, was employed by Producer’s Grain Corporation (Producer’s) as a secretary. Her duties included countersigning checks issued by Producer’s to pay the ongoing expenses and purchases of the business. James Warwick was bookkeeper and office manager for Producer’s in the office in which Peggy Spain worked, and was also responsible for cosigning checks.

According to Warwick, Peggy Spain came to him and asked to borrow money from Producer’s to pay some pressing obligations. Warwick testified that he was unable to loan her any money from company funds, but upon her suggestion entered into a scheme with Peggy Spain to defraud the company of the needed funds. Warwick contacted Garret Gilmore to help with this scheme. Gilmore agreed to set up a bank account in which he was to deposit checks that Warwick would issue on Producer’s account, countersigned by Peggy Spain. These checks were first issued as payment for non-existent building supplies. Later, the checks were issued as payment for cattle feed which was never received.

Gilmore would deposit the checks to his account, and then write checks payable to Warwick, Peggy Spain and appellant. A total of $658,000.00 was obtained from Producer’s in this manner. Warwick estimated that of this total he received approximately $175,000.00, his brother $5,000.00, Gilmore approximately $100,000.00, and Peggy Spain and appellant approximately $350,-000.00.

Gilmore testified extensively regarding his part in the offense. He stated that he acted as a conduit for the embezzled funds. At the end of his direct testimony, the jury was retired and the defense counsel made the following request:

“MR. FAIRWEATHER: Your Honor, the Defense would propose to ask the following questions of the witness, Garret Gilmore, for two purposes.
“Number One, we wish to question the witness concerning his reasoning and motivation for testifying for the prosecution, to the effect to see whether or not there is any agreement implied or expressed between him and the District Attorney’s Office in return for his testimony. And I think this testimony is relevant under the holding of the Burkhalter Case, as to the bias or prejudice of a witness.
“We further wish to ask this witness whether or not he was convicted of the offense of theft over $10,000.00, and whether or not he received a punishment of a judgment for five years Probation in this case. We think this is relevant under the ordinary rules of impeachment of a witness.
“THE COURT: All right. Fine.”

Gilmore testified outside the presence of the jury that he was arrested for his part in the instant offense and remained in jail for four or five hours. He was freed on a pre-trial release. The gist of the remainder, of his testimony is revealed by the following excerpts:

“Q. You turned yourself in approximately one week after the theft had been discovered by PGC, didn’t you?
A. I am not sure.
Approximately? O*
I don’t remember, really remember the dates. <!
Even if you don’t remember the dates, when you turned yourself in, didn’t you know that PGC already knew about it? <y
No, sir.
Had you talked to Mr. Warwick about turning yourself in?
A little bit.
What did you say to him?
I don’t really remember.
What did he say to you?
I don’t really remember.
You remember the substance of it, even if you don’t remember the details of it?
We were both — he wasn’t sure what he was going to do, and I wasn’t sure.
You had been doing this about two yours. What caused you to get this change of heart? O’
I had been thinking about it through over the past year, with everything was getting too big, and all of the checks were large checks, and both me and James had discussed it frequently over quitting, and stopping it. But each time there was another check would come in.
Did your attorneys approach the office of the District Attorney of Potter County? <y
I believe so. <¡
Did they approach them with reference to what is called plea bargaining, or recommendations from the District Attorney’s Office? o*
I have no idea.
Did, in fact, the District Attorney’s Office make a recommendation in your case of five years probation? o*
As far as I know, no. <tj
You were in Court. o*
A. In the Court case?
Uh-huh. Q.
I don’t really remember. I don’t think so. A.
You want the Court Reporter to go get the record out and check it? Is that necessary? Q.
Yes, sir. A.
We would ask the Court Reporter to check out that Statement of Facts now on that recommendation, unless the District Attorney is willing to concede that he did make that recommendation. Q.
MR. GLEASON: I feel relatively certain that I did make a recommendation in that case. I have a transcript of that proceeding. I don’t know that I have a recommendation appearing in the transcript.
Yes, Your Honor, he is more likely to refresh his memory from a transcript. It is on Page 25.
Q. (By Mr. Fairweather) Do you want to refresh your memory starting at Page 25, and continuing thereafter? Does that refresh your memory?
A. Yes, sir.
Q. Now, answer the question, did the District Attorney’s Office make a recommendation in this case of five years Probation?
A. Yes, sir.
Q. Okay. And when you walked through those doors of that Courtroom, you knew he was going to make that recommendation, didn’t you?
A. No, sir.
Q. Your attorney had already told you if you pleaded guilty, the DA would recommend five years probation, hadn’t he?
A. No, sir.
Q. What did you think was going to happen when you walked in here?
A. I had no idea.
Q. Didn’t the District Attorney and the Judge tell you that any recommendation by the prosecuting attorney was not binding on him?
A. No, sir.”
;fe % ‡ * * *
Q. (By Fairweather) The day you were arrested, you talked to Mr. Gleason in some detail. About how long an hour, thirty minutes, or what?
A. About an hour and a half.
Q. Part of your conversation was reduced to writing?
A. No, sir. To my knowledge, it wasn’t, but I don’t know.
Q. Did you give him a written statement or not?
A. I did give him a written statement. It was written by me before I was arrested.
Q. Did you give it to your lawyer before you gave it to Mr. Gleason?
A. Yes.
Q. What was your lawyer doing for you, if he wasn’t up there trying to make a deal so you wouldn’t go to prison?
A. I don’t know.
Q. Isn’t that what you hired him for?
A. I am not sure.
Q. You are not sure why you hired him?
A. No.
Q. What did you pay him?
A. I don’t remember. I am still in the process of paying him.
Q. What did he charge you?
A. I don’t really remember. It was around—
MR. FAIRWEATHER: Your Honor, I think the witness is obviously being evasive, and refuse to answer, and I would like the Court to instruct him.
THE COURT: Yes, I think I would instruct you, sir, to be more candid with the answers you give here in this matter.
A. I think it was around 10,000.
Q. Why didn’t you answer that earlier when I asked you?
A. I didn’t really remember exactly what the amount was.
Q. Did the Judge refresh your memory for you?
A. A little.”
$ 9fC * * * *
Q. When did you first agree to testify for the prosecution in this case?
A. It was after the trial.
Q. Are you going to state in this Court that no mention was ever made to you about testifying for the prosecution until after your trial? You are under oath.
A. As far as I can remember.
Q. You think carefully.
A. As far as I can remember, it was after.
Q. Isn’t it true that you agreed that you would testify for the prosecution in return that they would recommend five years probation?
A. No, sir.”
* * * * * *
“Q. In any event, you were convicted of theft, and plead guilty, and you received a five years probated term; isn’t that true?
A. Yes, sir.”

On cross-examination, still outside the presence of the jury, Gilmore testified as follows:

“Q. Did your attorneys, either Mr. Urmy or Mr. Heacock, represent to you that by doing that, that this office would make a recommendation in your case, or the Judge would be more lenient on you?
A. No, sir.
Q. At anytime prior to your trial?
A. No, sir. The only thing that I was ever told that there was a chance for probation, but I was never told that.
Q. When were you told that?
A. It was around the time of the trial, I believe it was.
Q. Who told you, if you remember?
A. One of my attorneys.
Q. There was a chance that you might get probation?
A. Yes, sir.
Q. And you didn’t know at the time you plead guilty that I was going to make a recommendation in your case?
A. No, I did not.
Q. And after you had plead guilty, and 1 after you had received your probation, your probated sentence, did we have a discussion here in the Courtroom?
A. I think so. I am not sure.
Q. Do you recall what was said?
A. No.
Q. Do you recall whether any discussion was had as to your employment, whether you could make restitution and how much?
A. Yes, that was — restitution was discussed.
Q. When did you and I discuss your testifying in any of these criminal cases against the other Defendants?
A. I believe it was right before the time or right around the time I receive that first Subpoena.
Q. And, of course, at this point of time, your case has been disposed of, and you know (sic) longer have a Fifth Amendment privilege, is that correct?
A. I am not sure.
Q. You have already plead guilty of your involvement in this crime?
A. Yes, sir.
Q. You can’t be convicted of it again?
A. I don’t think so. I am not sure.”

Defense counsel then asked to develop this testimony in the jury’s presence. The court recessed for the day, and the following occurred the next morning:

“MR. FAIRWEATHER: May it please the Court, Your Honor, yesterday I presented questions to the Court outside the presence of the Jury to the witness, Garret Gilmore, and the Court announced that the questions would be considered proper for cross examination before the Jury.
THE COURT: Yes, sir.
MR. FAIRWEATHER: Since then, the Court has modified its order, and has stated to Counsel for the Defendant that the questions concerning any plea bargaining between Garret Gilmore and the District Attorney’s Office are not admissible before the Jury, and we will not be able to ask the witness, Garret Gilmore, whether or not he was given a five year probated term for his plea of guilty.
THE COURT: However, you will be able to show that he was found guilty.”

Appellant then examined this witness in the presence of the jury. Gilmore admitted that he had been convicted, but the punishment was not revealed. No further testimony was elicited as to the questions asked on voir dire of this witness.

Appellant contends that he should have been able to cross-examine Gilmore regarding the probated sentence in order to show his bias and motive to testify. Appellant relies on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) as authority for his assertion that the trial court’s action denied him his constitutional right to confrontation. His reliance is well founded.

In Davis, the trial court had refused to allow the defendant to cross-examine the State’s chief witness to show that he was on probation at the time he made his initial identification of the defendant. The defense theory was that because the witness was on probation the jury could infer that the witness was under some pressure to make an identification. The Supreme Court reversed, holding that the defendant should have been able to present the evidence to the jury for whatever value it might have had. Davis v. Alaska, 415 U.S. at 318, 94 S.Ct. 1105.

In Simmons v. State, 548 S.W.2d 386, this Court reviewed previous cases involving the denial of cross-examination, and concluded:

“These cases underscore the well-established rule (and exception to Art. 38.29, V.A.C.C.P.) that great latitude is allowed the accused in showing any fact, including pending charges, which would tend to establish ill feeling, bias, motive, and animus on the part of any witness testifying against him.”

The erroneous denial of this right to confrontation is “constitutional error of the first magnitude and no amount of showing of want of prejudice [will] cure it.” Davis v. Alaska, 415 at 318, 94 S.Ct. at 1111; Evans v. State, Tex.Cr.App., 519 S.W.2d 868.

We hold that the trial court’s refusal to allow the appellant to show that Gilmore had received a probated sentence is reversible error.

Appellant further contends that the trial court’s refusal to allow him to question Gilmore regarding any plea bargain was erroneous. The State counters that since the examination of the witness outside the presence of the jury revealed no evidence of such a bargain, the trial court properly denied appellant the opportunity to propound these questions in the presence of the jury.

In Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931) the Supreme Court reviewed a trial court’s refusal to allow the defendant to elicit the witness’ current address. The Supreme Court stated:

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

See Saunders v. State, 572 S.W.2d 944.

Just as Alford held that the defendant is not required to show what facts the cross-examination would have revealed in order to establish prejudice, the appellant in the present case is not required to show that his cross-examination would have affirmatively established the facts sought.

An effective cross-examination encompasses more than just the opportunity to elicit testimony to establish the existence of certain facts. The cross-examiner should be allowed to expose the limits of the witness’ knowledge of relevant facts, place the witness in his proper setting, and test the credibility of the witness. The failure to affirmatively establish the fact sought does not prevent the cross-examination from having probative value in regard to the witness’ credibility. An unbelievable denial of the existence of a fáct can be even more probative as to lack of credibility than an affirmative admission of the fact.

We hold that the trial court erred in limiting the cross-examination of Gilmore under the facts of this case.

The judgment is reversed and the cause remanded.


author: DALLY, Judge.

text:
    George Rayford BURLESON, Appellant, v. The STATE of Texas, Appellee.
    No. 57223.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 13, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.
    Allan K. Butcher, Fort Worth, for appellant.

      Tim Curry, Dist. Atty., Marvin Collins, Jack Strickland, William E. Kane and Can-dyce Howell, Asst. Dist. Attys., Fort Worth, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for murder. The punishment is imprisonment for life.

Appellant contends that the trial court erred by admitting in evidence the autopsy report prepared by Dr. Feliks Gwozdz, the Tarrant County Medical Examiner, since the proper predicate for its admission as a business or official record was not laid. Appellant also contends that the admission of the report denied him his constitutional right of confrontation.

The indictment in this case alleges that on or about June 15, 1975, appellant

“. . . intentionally and knowingly cause[d] the death of an individual, Russell Livermore, by shooting him with a firearm . . . ”

Appellant’s first trial resulted in a hung jury, and a mistrial was declared on July 29, 1976. The trial from which this appeal is taken began on February 14, 1977.

The only evidence in the record as to the cause of death of the deceased is the autopsy report prepared by Dr. Gwozdz. Mary Pare, the executive secretary for the Tar-rant County Medical Examiner, testified that she had been so employed since 1965. She further testified that her main duty is to transcribe the reports dictated by Dr. Gwozdz during autopsies and to present them to the doctor for his signature, that these transcriptions are generally prepared on the same day the autopsy is performed, that Dr. Gwozdz performs the autopsies and has personal knowledge of the conditions described in the reports, and that the autopsy reports are prepared and filed in the regular course of business in the Medical Examiner’s office. Pare stated that she had the care, custody, and control of the autopsy reports, and identified file number 1187-75 as the autopsy report on the deceased, Russell Livermore. This report, a copy of which is in the record, is dated June 15, 1975, and signed by Dr. Gwozdz.

Over appellant’s objections that he was being denied his right of confrontation and that Art. 3737e, V.A.C.S., had not been complied with, the trial court admitted the autopsy report in evidence and allowed the prosecutor to read it to the jury. The report states that the cause of the deceased’s death was hemopericardium and hemotho-rax due to multiple gunshot wounds of the chest.

This Court has held on several occasions that autopsy reports prepared by county medical examiners are admissible as business records, Art. 3737e, V.A.Q,S., official records, Art. 3731a, V.A.C.S., or both. Whitfield v. State, 492 S.W.2d 502 (Tex.Cr. App.1973); Mahaffey v. State, 471 S.W.2d 801 (Tex.Cr.App.1971); Cuevas v. State, 456 S.W.2d 110 (Tex.Cr.App.1970); Burrell v. State, 446 S.W.2d 323 (Tex.Cr.App.1969). Pare’s testimony was sufficient to establish the admissibility of the autopsy report as a business record, and appellant’s ground of error to the contrary is overruled. In light of this holding, appellant’s grounds of error challenging the admissibility of the report as an official record are moot.

Appellant contends that the admission of the report denied him his right of confrontation since Dr. Gwozdz was not present at the trial and was, therefore, unavailable for cross-examination. Pare testified that Dr. Gwozdz had left Fort Worth on February 14,1975, the first day of the trial, to attend a professional meeting in San Diego, California. It was stipulated by the prosecuting and defense attorneys that the prosecutor had learned on February 10 that Dr. Gwozdz would be out of town during the trial, and had promptly informed defense counsel. Apparently, neither the prosecutor nor the defense made any effort to subpoena Dr. Gwozdz. The record reflects that in response to a question .by the trial court during preliminary proceedings on February 14 defense counsel expréssly declined to request a continuance due to Dr. Gwozdz’s absence.

Evidence within the scope of the Business Records Act, Art. S7S7e, supra, or Official Records Act, Art. 3731a, supra, is not admissible if it does not have the indicia of reliability sufficient to insure the integrity of the fact finding process commensurate with the constitutional rights of confrontation and cross-examination. Porter v. State, 578 S.W.2d 742 (Tex.Cr.App.1979); Coulter v. State, 494 S.W.2d 876 (Tex.Cr. App.1973); Battee v. State, 543 S.W.2d 91 (Tex.Cr.App.1976); Sisson v. State, 561 S.W.2d 197 (Tex.Cr.App.1978). It must be determined in each instance whether the particular record is of such trustworthiness as to guarantee the same protection provided by the rights of confrontation and cross-examination. The particular record and its relationship to the case in which it is offered are a part of the circumstances to be considered in determining whether the record has the fundamental trustworthiness necessary for its admission in evidence. Coulter v. State, supra.

The report of the autopsy of the body of Russell Livermore was prepared and filed pursuant to law. Art. 49.25, Secs. 9 and 11, V.A.C.C.P. The autopsy report appears to be an objective, scientific record of Dr. Gwozdz’s findings, and appellant makes no suggestion to the contrary. Although Dr. Gwozdz was doubtlessly aware that criminal charges would likely be brought as a result of the deceased’s death, there is nothing in the record to indicate that the report was prepared for the primary purpose of appellant’s prosecution. See Coulter v. State, supra.

It cannot be said that appellant and his counsel had an inadequate opportunity to study the report, since autopsy reports are public records. Art. 49.25, Sec. 11, supra. Although defense counsel was informed in advance of Dr. Gwozdz’s travel plans, no effort was made to subpoena the doctor. Had appellant believed that expert testimony concerning the cause of death was necessary or desirable, he could have requested a continuance pending Dr. Gwozdz’s return or called as a witness a doctor of his own choosing. We hold that, under the circumstances, the admission of the autopsy report did not deny appellant his constitutional rights of confrontation and cross-examination.

The judgment is affirmed.


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

text:
    Ralph Combs HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 57371.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 13, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Dean White, Canton, Jon Van Orden, Houston, for appellant.
    Henry M. Wade, Dist. Atty., J. T. Lang-ford and Bob Whaley, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder. Punishment was assessed at eleven years.

In his third ground of error appellant contends the trial court committed reversible error in refusing his requested charge on the defensive theory regarding the cause of death.

The State does not contest the fact that the evidence in this case clearly does raise the defensive issue that the death of deceased resulted from causes other than the acts alleged against appellant. Both appellant and the State presented expert witnesses on the cause of death, both of whom testified from the autopsy report and photographs of deceased. These two experts differed sharply in their opinions as to the cause of death. Without question the defensive theory on cause of death was raised by the evidence.

It is well established that a defendant is entitled to an affirmative submission of every defensive theory raised by the evidence. Rodriguez v. State, Tex.Cr.App., 372 S.W.2d 541; Loftin v. State, Tex.Cr.App., 366 S.W.2d 940; Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716. This rule applies with equal force to defensive theories regarding the cause of death in murder prosecutions. Aguillar v. State, 153 Tex.Cr.R. 509, 221 S.W.2d 242; Smart v. State, 140 Tex.Cr.R. 664, 146 S.W.2d 397.

Appellant timely presented his request for a charge on the issue. That request was:

“If you believe from the evidence, or have a reasonable doubt thereof, that the death of Sandra Marian Rudolph, if any, was caused by some natural bodily ailment or disease, you will find the defendant not guilty.
“Unless you find from the evidence beyond a reasonable doubt that the death of Sandra Marian Rudolph, if any, was' caused by having been choked and beaten with the hands of Defendant, Ralph Combs Hill, you will say by your verdict not guilty; or if you have a reasonable doubt thereof, you will find the Defendant not guilty.”

The State contends the following portion of the court’s charge adequately submitted the issue:

“You are further instructed that from all the evidence in this case, you must find and believe beyond a reasonable doubt that the death of Sandra Marian Rudolph was caused by the defendant, if it was, having choked or beaten her with his hands, if he did, or if you have a reasonable doubt thereof, you will resolve such doubt in favor of the defendant and find him not guilty.”

Although the charge submitted by the court is quite similar to the second paragraph of appellant’s requested charge, it does not constitute an affirmative submission of the defensive issue. The first paragraph of appellant’s requested charge, on the other hand, is an affirmative submission of the defensive theory and is very much like the jury charge approved in Aguillar v. State, supra. Indeed, it was suggested in Carney v. State, 109 Tex.Cr.R. 624, 6 S.W.2d 369, that appellant would have been entitled to even more specificity in the defensive charge, in that the law should have been applied to the facts of the case as raised by the defensive evidence on cause of death.

The State cites Sheppard v. State, Tex. Cr.App., 545 S.W.2d 816; Mitchell v. State, Tex.Cr.App., 517 S.W.2d 282; Aranda v. State, Tex.Cr.App., 506 S.W.2d 221; and Martinez v. State, Tex.Cr.App., 500 S.W.2d 151, for the proposition that it is not error to refuse a requested charge if the instructions actually given by the court are sufficient to protect the accused fully and adequately as to the matters included in the requested charge. That rule of law is not on point in this case. It cannot be said that a charge that fails to submit the defensive issues raised in a case in an affirmative manner is sufficient to protect the defendant fully and adequately as to that defensive issue. The opinion in Sheppard reflects that there was in that case an affirmative submission of the self-defense issue as to which complaint was raised. The Aranda and Mitchell cases involved drug offenses and the rule of law relied on today was not discussed. Finally, Martinez concerned the sufficiency of the court’s charge to distinguish between “the felony and misdemean- or offenses of carrying a prohibited weapon” and apparently did not involve submission of a defensive issue raised by the evidence, as is the situation in the case at bar.

Appellant was entitled to an affirmative submission of the defensive theory regarding the cause of death, and his properly filed requested jury charge was sufficient to preserve the issue for review. The trial court erred in refusing the charge and accordingly the judgment must be reversed.

The judgment is reversed and the cause is remanded.

W. C. DAVIS, Judge,

dissenting.

I dissent from the majority’s reversal for refusal of the trial court to submit appellant’s requested charge on cause of death. I would hold that the charge actually given adequately submitted the appellant’s issues and served to protect appellant as to matters contained in the requested charge.

The majority opinion concedes that the charge given is “quite similar” to paragraph two of the requested charge. The basis of the majority’s reversal appears to be failure to affirmatively charge on cause of death as requested in paragraph one of the requested charge.

I agree with the general proposition that a defendant is entitled to an affirmative charge on every defensive theory raised by the evidence. Aguillar v. State, 153 Tex. Cr.R. 509, 221 S.W.2d 242 (1949). However, I also realize that this general proposition is limited where the charge of the court adequately protects the defendant on the issues contained in the requested charge. Sheppard v. State, 545 S.W.2d 816 (Tex.Cr.App. 1977).

Here, the requested charge required a not guilty if the jury found the deceased expired from natural causes. The charge given required a jury finding that deceased was killed by “choking or beating” administered by the appellant. The necessary and only implication arising from the charge actually given was that if the jury determined death resulted from a cause other than choking or beating, then their duty was to return a not guilty verdict.

The charge given adequately protected appellant on the issue of death from natural causes. For this reason, I respectfully dissent.

      . Paragraph one of the requested charge reads:
      “If you believe from the evidence, or have a reasonable doubt thereof, that the death of Sandra Maria Rudolph if any, was caused by some natural bodily ailment or disease, you will find the defendant not guilty.”


author: ODOM, Judge.

text:
    Henry Stephen STIEHL, Appellant, v. The STATE of Texas, Appellee.
    No. 57825.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 13, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.
    John T. Montford, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and John C. Kilpatrick, Asst. Dist. Atty., Lubbock, Robert Huttash, State’s Atty., Austin, for the State.

      Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery wherein punishment was assessed at 40 years. In various grounds of error appellant complains of the trial court’s refusal to dismiss the indictment because he was subjected to cruel and unusual punishment by his pretrial confinement conditions; the exclusion of evidence of those conditions at the punishment phase in mitigation of punishment; denial of his motion for change of venue; refusal to appoint a psychiatrist to examine appellant; and denial of a limiting charge on extraneous offenses.

On January 26, 1976, two masked, rifle-bearing gunmen, one of whom was later identified as appellant, entered a United Super Market in Lubbock. They robbed the checkers and store manager of some $8500 in cash and then were interrupted by police responding to a silent alarm as they started to leave. In the ensuing confusion they dropped the money but managed to escape temporarily by taking two hostages.

After a brief automobile chase, however, they were captured when a police car rammed their car.

Appellant asserts that the indictment should have been dismissed because the conditions of his pretrial confinement constituted cruel and unusual punishment in violation of his constitutional rights. Appellant was a named plaintiff, along with other inmates in the Lubbock County Jail, in a federal suit against the Lubbock County Commissioners, the County Sheriff, and the Texas Commission on Jail Standards, alleging violations of their rights because of these conditions. They were successful in this action and a Memorandum Opinion was issued ordering various actions to correct deficiencies in living conditions and security in the jail.

Appellant’s complaint is that the trial judge refused to give him relief in the present case for his confinement conditions. He asserts that dismissal of the indictment is the only appropriate remedy that would give effect to the constitutional rights involved and while such a remedy is extreme, it is not unusual. He likens his case to Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), wherein the United States Supreme Court emphasized that dismissal of the indictment is the only remedy for failure to grant a speedy trial. That opinion merely reinforces Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which first established this remedy for violations of the speedy trial right. Appellant’s attempt to link his claims of constitutional violations with the Strunk/Barker remedy of dismissal is not well taken. The Barker court stated:

“The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused.” 407 U.S. at 519, 92 S.Ct. at 2186.

The Court then enumerated some of the reasons why this was so and arrived at the conclusion that:

“The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.” 407 U.S. at 522, 92 S.Ct. at 2188.

Thus, the Supreme Court adopted this “unsatisfactorily severe” remedy because it was the only one possible. There are, however, other remedies available in instances where an individual has been subjected to cruel and unusual jail conditions prior to trial, as amply illustrated by the present case. Appellant participated in a federal suit against those in charge of the jail for the purpose of obtaining injunctive relief to correct jail conditions and monetary damages. The monetary claim was denied but injunctive relief was granted and the defendants were ordered to immediately begin correcting the deficiencies. Any constitutional rights violated by the conditions of appellant’s pretrial confinement were vindicated by the suit in which he participated and it is not necessary to resort to the extreme remedy of dismissing the indictment.

Next, appellant contends that he should have been allowed to introduce at the punishment phase evidence of the conditions in the Lubbock County Jail for the purpose of mitigation of punishment. Article 37.07, V.A.C.C.P. This contention is without merit. This Court stated in Allaben v. State, 418 S.W.2d 517, 519, “Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.” The factors that can be introduced in mitigation are either statutory, such as temporary insanity caused by intoxication, Y.T.C.A., Penal Code Sec. 8.04(b), and all relevant facts and circumstances surrounding a murder or voluntary manslaughter, Y.T.C.A., Penal Code Sec. 19.06, Brazile v. State, Tex.Cr.App., 497 S.W.2d 302, or are judicially created and related closely to the statutory factors, such as testimony about church membership as relating to character in an application for probation case, Miller v. State, Tex.Cr.App., 442 S.W.2d 340. All these factors have in common a relationship to the circumstances of the offense itself or to the defendant himself before or at the time of the offense. Factors which arise after the offense and independently of the defendant should not be allowed into evidence in mitigation of punishment. In the instant case, the circumstances of appellant’s pretrial confinement had nothing to do with the offense for which he was prosecuted nor with any of the statutory mitigating factors. They were properly the subject of an entirely separate action.

Appellant asserts that the refusal to grant a change of venue was error because the publicity was such that it was impossible for him to receive a fair trial in Lubbock County. The applicant for a change of venue bears a heavy burden of proving the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial jury is doubtful. James v. State, Tex.Cr.App., 546 S.W.2d 306.

The publicity appellant complains of concerned to a small degree the crime itself but to a much greater extent it dealt with the federal lawsuit over the jail conditions. As evidence appellant presented approximately 68 newspaper articles concerning the crime itself or the suit. Of these, five were general articles about jail conditions which did not mention appellant’s name and five were about the trial of his partner in crime. Appellant was not singled out in any of the articles. His name was mentioned in 32 of the articles, almost always in conjunction with the other inmates who were plaintiffs in the jail suit. We have examined the articles and find that they are not inflammatory or hostile to appellant but instead seem designed to inform the public.

“The fact of publicity in the news media does not by itself establish prejudice or require a change of venue.” Knight v. State, Tex.Cr.App., 538 S.W.2d 101, 103.

See also, Ransonnette v. State, Tex.Cr.App., 522 S.W.2d 509. Of course, the primary consideration is that “[d]ue process requires that the accused receive a trial by an impartial jury free from outside influences.” Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). We have examined the voir dire to determine whether the jury was in fact free from outside influences. Von Byrd v. State, Tex. Cr.App., 569 S.W.2d 883; Freeman v. State, Tex.Cr.App., 556 S.W.2d 287. We find that three jurors were struck for cause, either because of knowledge of the case from outside the media or acquaintanceship with a witness which might sway them in favor of the State. The entire panel was then asked if anyone had read or heard about the matter of this particular case. Three veniremen responded affirmatively but on further questioning stated that they had formed no opinion on the case and could decide it by the evidence. The rest of the panel did not have any prior knowledge of the incidents in question. We find no evidence that appellant was forced to accept trial by a prejudiced jury and, indeed, appellant does not contend he was forced to take an objectionable juror. Brantley v. State, Tex.Cr.App., 522 S.W.2d 519. There is no showing that the trial judge abused his discretion in refusing the change of venue.

The denial of a request for a court appointed psychiatrist is challenged. At the pretrial hearing both the lawyers for appellant stated that they felt he had been fully able to cooperate with them in preparation of the case for trial. The court noted that appellant had filed a number of pretrial motions and that in each one he had expressed his requests and thoughts fluently, intelligently, and legibly and that he had acted as a plaintiff in a successfully prosecuted federal suit on jail conditions in which no question of incompetency had arisen. The motion for psychiatric examination was carried until the end of the trial. Before sentencing, the judge stated that, based on his observations of appellant throughout the pretrial and trial, he found appellant to be competent to stand trial and aid his counsel in preparation and presentation of the case.

“It has been widely recognized that Pate v. Robinson [383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815] does not create an absolute right to a psychiatric examination . . . . The real issue to be resolved in cases such as this is whether the evidence presented to the trial judge is sufficient to raise a ‘bona-fide doubt’ as to the defendant’s competence to stand trial, Pate v. Robinson, supra. In other words, there must be some indication to the trial judge that competency to stand Trial is a substantial issue before a referral of the defendant to a psychiatric examination is required.” Hill v. State, Tex.Cr.App., 429 S.W.2d 481, 483, quoting from Tyler v. Beto, 391 F.2d 993 (5th Cir. 1968).

There was insufficient evidence presented to raise the issue of appellant’s incompetence. There were allegations in the motion for court appointed psychiatrist that appellant believed he was afflicted with some sort of mental disorder which “may well have destroyed his ability to perceive the wrongfulness of his conduct” and that he was presently in such a state as to render him unable to adequately assist his counsel in preparation of his defense. There was no evidence introduced to support the motion and counsel contradicted part of it by saying they had been adequately assisted by appellant. There was no abuse of discretion in denying the motion for court appointed psychiatrist.

Finally, it is asserted that a request for a limiting instruction should have been granted. The claim is based on the fact that the proof of the offense, aggravated robbery, included another offense, kidnapping. The kidnapping occurred when hostages were taken and was part of the res gestae of the offense.

“It is observed that it is not necessary to give a limiting instruction on an extraneous offense which constitutes a part of the res gestae of the offense for which an accused is on trial. ‘In other words, where the testimony is simply used to prove the case as res gestae, or to prove any fact that forms a part and parcel of the case on trial so as to show the defendant’s guilt, it is not necessary to charge limiting the effect of such testimony.’ 31 Tex.Jur.2d, Instructions, Sec. 149, p. 725.” Arivette v. State, Tex.Cr.App., 513 S.W.2d 857, 864.

Accord, Saunders v. State, Tex.Cr.App., 572 S.W.2d 944; King v. State, Tex.Cr.App., 553 S.W.2d 105. The twelfth and thirteenth grounds of error are overruled.

Appellant’s pro se brief attempts to raise two additional grounds of error. The brief was not timely filed and does not cite any part of the record. It therefore presents nothing for review.

The judgment is affirmed.


text:
    Roy Lee KING, Appellant, v. The STATE of Texas, Appellee.
    No. 57840.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 13, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Edith L. James, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., William M. Lamb, Mike Keasler and C. Wayne Huff, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for theft. Punishment, enhanced by two prior felony convictions, is life.

Appellant raises grounds of error challenging the admissibility of his confession, the sufficiency of the trial court’s findings regarding the admissibility of his confession, the sufficiency of the evidence to corroborate his confession, the omission of a circumstantial evidence charge, admission of a photograph of the scene of the theft, and the proof of one of the prior felony convictions used for enhancement.

Before appellant’s written confession was admitted, the court conducted a hearing outside the presence of the jury to determine whether the confession was admissible. The State presented the testimony of officers McCurley, Cole and Fletcher. McCurley testified that he arrested appellant and read his Miranda warnings to him, and that appellant indicated he understood them. He also testified that appellant’s eyes were open, that he was not complaining of being sick, and that he did not ask for a favor or for medicine.

Cole was the next officer to read him his constitutional rights, and he testified that appellant said he understood the warnings. Appellant then gave a statement about the offense to Cole, who then took appellant to a clerk and had appellant dictate his statement to the clerk. Cole testified that he and Fletcher were present while appellant dictated his statement to the clerk, but that he was not present when the statement was signed. He also testified that appellant seemed a little frightened.

Fletcher testified that he was not present when the statement was dictated, and that Cole brought appellant to him with the statement already typed up. Appellant then told Fletcher that he could read, write and understand the English language. After Fletcher read the statement to appellant, including the warning of his constitutional rights at the'top of the statement, he handed the statement to appellant who appeared to read it before handing it back to Fletcher. Appellant then told Cole that the statement said what he wanted it to say and signed it in Cole’s presence.

Appellant testified at the hearing and presented the testimony of his brother and two other witnesses. Appellant and his brother testified that he does not read and write English. Appellant also testified that he did not read the statement and does not understand the Miranda warnings, but admitted that he did sign the statement.

One of the other witnesses for appellant testified that appellant takes drugs, and that he would not understand legal documents read to him in that state. The other witness testified that she saw appellant on the morning of the day he was arrested and gave his statement, and that he was under the influence of heroin at that time.

Appellant argues the confession should have been excluded because he was “high” on heroin or at the beginning of withdrawal at the time it was made, because he was illiterate and could not understand the statement he signed and tell if the words were his, and because the confession was not made to the person who gave him the warnings as required by Art. 38.22, Sec. l(b, c), V.A.C.C.P. He also contends the trial court’s findings of fact are insufficient and require abatement of the appeal as was done in Hester v. State, Tex.Cr.App., 535 S.W.2d 354. This last issue has been rendered moot by findings subsequently made by the trial court, that appellant was literate and was not under the influence of narcotic drugs when he made the statement.

Appellant’s evidence that he was illiterate was impeached by Fletcher’s testimony that appellant told him the he could read and write English. Furthermore, Cole testified that appellant dictated his confession to the clerk and Fletcher testified that he read the confession to appellant and that appellant told him the statement said what he wanted it to say. Thus even if appellant had not read the statement, the evidence shows the written statement was appellant’s own.

Although appellant would have been the best source of evidence on the issue of whether he was under the influence of narcotics or undergoing withdrawal at the time of his confession, this was his only testimony on the matter:

“Q. Were you a user of drugs at the time?
“A. Yeah, I’ve been messing with heroin for about ten years.”

This, coupled with testimony by another witness that she saw appellant under the influence of heroin at about 7:15 a. m. of the day he made the confession, is insufficient to require us to set aside the trial court’s finding that appellant was not under the influence of narcotics when he confessed that afternoon, sometime after 3:00 or 3:30.

Finally, we find no trial objection to the confession on the ground that the confession was not made to the person who gave him the warnings. Furthermore, the record does reflect that Cole warned appellant of his constitutional rights, appellant confessed to Cole, and appellant then dictated his confession to a clerk in Cole’s presence. We find this sufficient to meet the requirements of Art. 38.22, supra, as in effect prior to the 1977 amendment, even though Cole was not present when appellant signed the confession after it was read to him by Fletcher.

We hold the trial court did not err in ruling the confession admissible.

We next consider the sufficiency of the evidence to corroborate the confession. Appellant relies on Gilbertson v. State, Tex. Cr.App., 563 S.W.2d 606, in which a conviction was reversed because the evidence was insufficient to connect the defendant with the offense charged. Unlike the confession in that case, appellant’s confession, set out in the ground of error next discussed, coincides with the date of the offense, the make of automobile used, the property stolen, and the type of business establishment and town in which the theft was committed. Although the confession does not precisely state the location of the scene of the theft, two witnesses identified appellant at trial as resembling one of two men who arrived at the station shortly before the theft was discovered. Although their identification was not unequivocal, we find that it, coupled with proof that an offense.was in fact committed, was sufficient to corroborate the confession. Sullivan v. State, Tex.Cr. App., 433 S.W.2d 904; Lyles v. State, 171 Tex.Cr.R. 468, 351 S.W.2d 886, 889.

Appellant also contends that the confession and corroborating evidence outlined above were insufficient to dispense with the need for a circumstantial evidence charge, and that reversible error was committed when the trial court denied his request for one. The rule requiring such a charge in cases where a confession is admitted was stated in Ridyolph v. State, Tex.Cr.App., 545 S.W.2d 784, at 789:

“It is true, of course, that an admission or confession must unequivocally admit the commission of the act charged before the court is relieved of the. necessity of giving a charge on the law of circumstantial evidence on the basis of a confession alone. Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387 (Tex.Cr.App.1948); Hielscher v. State, [Tex.Cr.App., 511 S.W.2d 305].
“It was made clear in Martinez v. State, supra, that even if' the accused confesses or admits to the commission of a crime it must be shown by the evidence and the confession of the accused that the crime admitted is the same crime for which the defendant is being tried if the circumstantial evidence charge is not given. If it is only by a process of inference from the confession or admission that it can be determined that the accused did the killing or was a guilty party therein, the court should give the circumstantial evidence charge. See 4 Branch’s Ann. P.C., 2nd ed., Sec. 2049, p. 358; Hielscher v. State, supra; Casey v. State, [Tex.Cr. App., 523 S.W.2d 658, 659].”
Appellant’s confession in this case recites: “On Sunday, the 14th of November 1976, Roosevelt Valentine came by my motel and he had Will Green with him in a Cadilac [sic] and picked me up and we left Will Green there in my motel and we both went driving around a while and was getting low on gas and we drove by a service station in the City of Carrollton, Dallas County, Texas. I went into the service station to get someone to help us and I didn’t see anyone, so I picked up the cash register and left and returned to the car and left the service station with the cash register and sometime later I split the money which was something over $100.00; I don’t know how much for sure. Then we drove to my sister’s apartment in Dallas (North Dallas) and took the cash register in her apartment and put it in the back and covered it with a blanket. As far as I know, Will Green .knew nothing about us stealing the cash register.”

The only evidence apart from the confession and proof that a theft was committed is the testimony of two witnesses at the service station who did not see the theft committed, but who did see appellant at the station a few minutes before the theft was discovered. Although this does not present as strong a case as Ridyolph, the rule as stated in that case applies when the confession does not unequivocally admit the commission of the act charged and the prosecution is “on the basis of a confession alone.” (Emphasis in Ridyolph.) The eyewitness testimony in this case removes it from the requirement that a circumstantial evidence charge be given. The ground of error is overruled.

In another ground of error appellant argues that a photograph of the service station where the theft was committed was improperly admitted because it was not properly authenticated.

“As with demonstrative evidence generally, the prime condition on admissibility of a photograph is that it be identified by a witness as an accurate portrayal of certain facts relevant to the issue, and verified by such witness on personal knowledge as a correct representation of these facts.” Haas v. State, Tex.Cr.App., 498 S.W.2d 206, 211.

The owner identified the photograph as truly and accurately depicting the service station, and identified an “X” on the photograph as indicating where the stolen cash register was located in the station. This was sufficient, and Goss v. State, Tex.Cr. App., 549 S.W.2d 404, relied on by appellant, is distinguishable on the facts.

In his last ground of error appellant contends one of the prior convictions relied on for enhancement was a misdemeanor instead of a felony as required under V.T. C.A. Penal Code, Sec. 12.42(d). The conviction in issue was for assault with a prohibited weapon under Art. 1151, V.A.P.C. (1925). The punishment provided in that article is to be “. . . by a fine not to exceed two hundred dollars or by imprisonment in jail not to exceed two years, or by confinement in the penitentiary for not more than five years.” Article 47, V.A.P.C. (1925) provided in part: “An offense which may — not must — be punishable by death or by confinement in the penitentiary is a felony; every other offense is a misdemeanor.” As was stated in Ragon v. State, Tex.Cr.App., 506 S.W.2d 214:

“It has been consistently held that an offense which may be punished by confinement in the penitentiary is a felony even though an offender is actually punished by fine or confinement in the county jail. See Middleton v. State, Tex.Cr. App., 476 S.W.2d 14, and cases cited therein.”

Since the permissible punishment for assault with a prohibited weapon included confinement in the penitentiary, appellant’s prior conviction for that offense was a prior felony conviction regardless of the actual punishment assessed. The ground of error is without merit.

The judgment is affirmed.

      . Acts 1967, 60th Leg., ch. 659, Sec. 23, p. 1740.


author: W. C. DAVIS, Judge.

text:
    Lushion Edward KIRTLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 54961.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 27, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.
    Judgment reversed and reformed to show an acquittal.
    Emmett Colvin, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John H. Hagler, Gerry Holden and Andy Anderson, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

Following a conviction for public lewdness, V.T.C.A. Penal Code, Sec. 21.07(a)(3), appellant was assessed a fine of one thousand dollars ($1,000) and thirty (30) days confinement. The dispositive issue on appeal is whether the act was committed in a “public place” as required by V.T.C.A. Penal Code, Sec. 21.07(a)(3).

Appellant was charged by information as follows: ,

“. . . knowingly engage in an act of sexual contact by touching the breast of D— S — , a female older than 10 years, with intent to arouse and gratify the sexual desires of (appellant) in a public place, to wit: an automobile on Lake June Road, Dallas County, Texas.” (Emphasis added)

The language used in the information indicates that the State elected to proceed under that portion of Sec. 21.07(a)(3) which prohibits sexual contact in a public place.

The relevant evidence reflects that appellant invited his recently-hired secretary, D— S — , to lunch. She reluctantly agreed and accompanied appellant to his automobile. While appellant was driving his auto on Lake June Road, he reached across the front seat and grabbed the arm of D_ S_In so doing, the back of appellant’s hand came in contact with the breast of D_S_Appellant denied the contact and stated he did not take his secretary to lunch on the day alleged.

The issue which resolves this cause is whether appellant’s auto, traveling on a public road, is a public place. In disposing of this issue, we are guided by the statutory definition of “public place.”

“ ‘Public place’ means any place to which the public, or a substantial group of the public, has access and includes, but is not limited to streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”

Under this definition, Lake June Road is a public place. However, the status of the roadway as public does not extend to a vehicle traveling on that road. Whether or not a vehicle is a “public place” as it travels on a roadway is a fact question for the trier of fact.

We find only one prior opinion dealing with the “public place” definition in connection with the public lewdness section of the penal code where a search and seizure was not a central issue. In that case, Resnick v. State, 574 S.W.2d 558 (Tex.Cr.App.1978), the defendant entered a coin-operated movie booth in an adult theater with an undercover police officer. As both watched the movie, the defendant placed his hand on the portion of the officer’s trousers covering his genitals. Citing Green v. State, 566 S.W.2d 578 (Tex.Cr.App.1978), which held that a commercial establishment open for business is sufficient proof of public place, we refused to reverse for failure of the trial court to charge the jury in Resnick on public place.

Appellant’s auto was not a commercial venture depending upon customers to come inside. There was no showing that while traveling down the road, appellant’s auto was accessible to the public or a substantial group of the public. We find nothing in the record which would lead us to conclude that appellant’s auto, as it traveled on Lake June Road, was a public place as defined by statute.

Our decision today does not establish a per se rule holding that a vehicle traveling on a public road is not a public place. This is a question of fact for the fact finders. However, when the State adduces no evidence of the public nature of appellant’s auto, then the State failed as a matter of law to establish the constituent elements of the offense alleged.

Motor vehicles, capable of high speeds across complex and diverse highway systems, have often enjoyed “unique” positions in legal writings. Federal Constitutional issues, such as probable cause and reasonableness of warrantless searches, turn upon the facts and circumstances surrounding a defendant’s automobile. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Here, also, whether appellant’s vehicle, as it traveled on Lake June Road, was a public place depends on the surrounding facts and circumstances. These circumstances must be established by the State.

The difficulty and, indeed, the impossibility of establishing a per se rule in cases such as appellant’s can be illustrated best by example. There can be little doubt that a convertible automobile participating in a parade down main street is a public place. The parade spectators “have access” to the interior of the vehicle because they are able to see the interior of the auto. However, the same auto traveling at high speed at night on a public road may not be a public place.

In the present case, the record does not support the assertion that appellant’s vehicle was a “public place.” Without such support, appellant’s conviction cannot stand.

The judgment is reversed and reformed to show an acquittal.

      . V.T.C.A. Penal Code, Sec. 21.07(a)(3) also prohibits sexual contact “if not in a public place” when the actor is “reckless about whether another is present who will be offended . . .” However, this portion of the Code was not alleged and hence is not before us.

      . In the usual case, the determination of public place is a fact issue for the jury and appellant presents his claimed error as a sufficiency question. The State introduced no evidence on the “public” nature of appellant’s auto. Instead, the State chose to rely on the statutory conclusion including a road within “public place.” This definition cannot be extended to an auto traveling on a road and, thus, there is no evidence of the public nature of appellant’s auto. No evidence issues are matters of law.

      . We are not unaware of the general “right to privacy” under the Federal Constitution. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Whether appellant was entitled to expect privacy under the Federal Constitution as he drove down the highway is not before us. The State has a compelling interest in prohibiting sexual activities in public and, therefore, by legislative enactment evidenced by V.T.C.A. Penal Code, Sec. 21.07(a)(3), may control those activities. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Therefore, we must determine if an auto, traveling on a public road, is a public place as defined in the Code.

      .There are several cases construing the “ex- . pectation of privacy” in connection with searches made in public lewdness cases. See Green v. State, 566 S.W.2d 578 (Tex.Cr.App. 1978) and Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971). However, the reasoning used in these cases dealing with expectation of an individual to be free from governmental intrusions, i. e., searches, is not of benefit in appellant’s case because no search was involved.

      . Several other examples come to mind, such as vehicle with “tinted” windows or recreational vehicles with curtains pulled. These surrounding circumstances must be adduced by the State. See Katz v. U. S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); compare Britton v. State, 578 S.W.2d 685 (Tex.Cr.App.1979).

      . Supportive facts include but are not limited to (1) the speed of the vehicle, (2) traffic and road conditions, (3) obstructions, (4) lighting conditions, and (5) intended use of the vehicle by the operator; all of which should be aimed at proving “public place” as defined by statute.