author: ODOM, Judge.

text:
    Richard Lee GRAHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 53462.
    Court of Criminal Appeals of Texas, En Banc.
    May 10, 1978.
    Rehearing En Banc Denied June 7, 1978.

      Chappell & McFall, John Mann, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and G. Thomas Cannon, Asst. Dist. Atty., Lubbock, for the State.

      . The test for the insanity defense is now governed by the statutory language set out above.

   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape. The jury assessed punishment at sixty years.

The offense was committed on September 2, 1974. On December 2 appellant was found incompetent to stand trial. Another jury found him competent to stand trial on September 8,1975. At trial appellant plead not guilty by reason of insanity, and the jury found him sane at the time of the offense and guilty on September 16.

On appeal he contends, (1) the jury’s verdict finding him sane at the time of the offense was against the overwhelming weight and preponderance of the testimony, (2) the trial court erroneously refused to allow him to inform the jury during the selection process of the civil alternative to the criminal sanction, (3) the jury instruction on the insanity issue was improper, and (4) the prosecutor made improper, prejudicial jury argument.

Appellant’s first ground of error asserts that the jury’s verdict on his insanity defense was against the overwhelming weight and preponderance of the evidence. He relies on Kiernan v. State, 84 Tex.Cr.R. 500, 208 S.W. 518, and Gardner v. State, 85 Tex.Cr.R. 103, 210 S.W. 694.

The offense was committed on September 2,1974. Thus, V.T.C.A., Penal Code Sec. 8.01 was in effect and provides the -standard for this issue. Sec. 8.01 provides: ~

. “(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.
“(b) The term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

Since this issue is identified as an affirmative defense, the accused must carry the burden of proof by a preponderance of the evidence. V.T.C.A., Penal Code Sec. 2.04(d). Other procedural matters relating to the issue are provided in Art. 46.03, V.A. C.C.P.

At the guilt stage of the trial three witnesses testified for the State, and the defense presented the testimony of two psychiatrists. The State called the victim (G_), the investigating officer who saw the victim shortly after the crime, and the physician who examined her. The defense witnesses were the only witnesses to give expert testimony on the insanity issue. Consequently, appellant argues there was “uncontroverted and undisputed testimony from expert witnesses as to Appellant’s insanity at the time of the commission of the offense. . . .” and there was “no evidence to rebut the defense’s testimony regarding the insanity of the Appellant at the time the crime took place. . . . ” The State, in reply, relies on the victim’s testimony regarding appellant’s behavior and statements on the night of the offense, and suggests there are conflicts within and between the experts’ testimony. To consider this issue it is necessary first to summarize the testimony of G-(the victim) and of doctors Raines and Weddige (the psychiatrists).

TESTIMONY OF THE VICTIM

G_testified that on September 2, 1974, at about 8:30 p. m., appellant came by her house and invited her to go get some beer with him. She was previously acquainted with appellant through mutual friends. On the way toward Buffalo Lake they stopped at a liquor store. After appellant bought a six pack of beer, they drove toward Slaton. Appellant was drinking but G_did not drink much. About twenty minutes from leaving G_⅛ house, appellant stopped the car on the road and got out “to use the bathroom.” When he got back in the car he tried to kiss G_ who told him she did not want to, and told appellant to take her home. He refused and she said she would walk home, and started walking down the road. Appellant then yelled for her to get back in the car and he would take her home.

Appellant started driving back to Lubbock, then turned off on a narrow dirt road. It was dark and he was still drinking. He stopped the car again and went around to G-⅛ side of the car and tried to kiss her again. When she refused, he jerked her from the car, threw her to the ground, and ripped her blouse open. G_testified appellant kept saying he wanted her and she said she did not want to. Appellant hit her several times and hit her in the left eye with his fist. G_testified, “Then after he hit me and all, I guess he come back to his senses or something and then he got out there and he helped me up and he started apologizing, and he said did I do that, I didn’t mean to do that, and stuff like that.” She asked appellant to take her home, but he was afraid to. She assured him it would be all right, and said they should go to the store to get gauze, tape, and ice to bring the swelling down. Appellant expressed fear that her parents were at her house and that she would go to the police. She told him she would say some girls ganged up on her and beat her up. They got in the car and started toward Lubbock.

Appellant stopped the car at a store and bought gauze, tape, ice, and two six packs of beer. He next drove to his house where he went inside for ten to twenty minutes. They then continued toward Lubbock. Appellant again turned the car off on a dirt road and in reply to G_⅛ question said they were going to see a friend. He next stopped the car on a dirt road, put a sharp object to G_’s throat, and tied her hands behind her back with the tape he had bought at the store. He then drove to a drainage tunnel near 42nd and A, removed the cover, and ordered G_to enter. There was no light in the tunnel, but appellant had brought a flashlight. He told her he had many places he could hide her, that no one would find her, and that he did not know whether he was going to kill her or not. G_was scared and figured he would do anything. He told her she could scream all she wanted and no one could hear her. Then he untied her hands and told her he would see how fast she could get her clothes off or he would kill her. After she undressed, he tied her hands back together.

G_recounted the sexual assaults that followed. “Then he started making me have oral sex with him and call him master and how much I liked it and how much I enjoyed it.” She complied because she could not avoid it. There followed acts of sexual intercourse with G_forced to lie on the cement with her hands tied behind her back. Appellant accomplished three acts of vaginal intercourse and three acts of anal intercourse. He then tied her hands up over her to a pipe with her belt. As he started to leave her there he told her not to yell, “[B]ecause if I did he would kill me and if he didn’t his partner would and his partner was death. . . .” After leaving briefly appellant returned and said he would see how loud she could scream. He whipped her on the back and legs with her belt. G_testified that after the whipping, “Well, then I guess he got his senses back or something and he let me down and he started looking at me and he asked me if he had done that and I said yeah. And he said, well, I’m sorry. I guess I have been drinking too much and all, so then he untied my hands and told me to get my clothes on.” After she dressed he helped her out of the tunnel and they went to the car. When she realized her purse had been forgotten they returned to the tunnel where he looked for it without success.

Appellant feared taking her home and she convinced him she would tell her parents that some girls had ganged up on her, and that she would not go to the police. He let her out of the car one block from her home. She walked up to her house around 2:00 a.m. and found her boyfriend and other friends waiting for her.

On cross-examination of the victim the following information was elicited:

“Q. Did he act like he was out of his senses and crazy at that time when he was beating you up?
“A. No. He acted like he was — I don’t know. He just went crazy doing it. He just hit me and all at once and telling me to shut up and all.
“Q. Just acted like he was in a frenzy and crazy. Is that right?
“A. Yes.
“Q. And he was apologizing to you and he said, ‘Did I do that?’ Is that right?
“A. Yes.
“Q. Did he act like that he didn’t realize that he had done it?
“A. Well, for a minute he did. He kept asking, he goes did I do that. I’m sorry for that, and like that.
“Q. And he was really apologetic. Is that right, or he seemed to be?
“A. Yeah, he seemed to be.
“Q. And then he said he didn’t mean to do it. Is that right?
“A. Yes.
******
“Q. Then after he got through whipping you what did he do.
“A. Then he let me down and started asking me if he had done that and that he was sorry for it and all, that he had probably had too much to drink, and then he told me that he had been taking some little white pills all day too.
“Q. Did he tell you that he had been to the hospital at any time this evening?
“A. No.
“Q. Did he at any time while he was abusing you have a hysterical laugh?
“A. No.
“Q. You don’t recall that?
“A. No, I don’t.
“Q. Do you recall him doing any mumbling or anything of that nature to himself?
“A. No.
“Q. But after he came back and whipped you he helped you get your hands down. Is that right?
“A. Yeah. He got my hands down and then he started untying me and then he asked me if he had done that and all, and then he said he was sorry and that he would take me home and all, but he was afraid to.
“Q. He started apologizing and said did I do that. Is that what he said?
“A. Yes.
“Q. And did he act like he didn’t know that he had done that, did he act that way?
“A. I think he knew that he had done it. He was just saying that.
“Q. But he did say did I do that?
“A. Yes, he did.
“Q. And he had said that before when he threw you down on the ground?
“A. Yes.”

On redirect examination the witness further testified on appellant’s apologetic statements:

“Q. After every time that he would either hit you or do something along this line he would then apologize. Is that correct?
“A. Yeah, the two times that he did, when he blacked my eye and then when he beat me up in the tunnel, then he started asking me if he did it, and then he would say he was sorry for it.
“Q. Did he ever apologize to you for having sexual intercourse with you?
“A. No, he didn’t.
“Q. And you say that you had the feeling that he knew what he had done, but he just said that. Is that right?
“A. I think he knew what he was doing. He was just saying that to make me feel better toward him or something.”

TESTIMONY OF THE DOCTORS

Two psychiatrists who had observed appellant and prescribed medication for him from as early as December of 1972 testified for the defense. Their testimony covered several subjects: (1) the symptoms of a schizophrenic condition, (2) information obtained from interviews with appellant, symptoms exhibited by him, and diagnosis of his condition (a) before commission of the offense, from December 1972 until February 1974, their last contact with appellant prior to the offense, (b) after the offense in September 1974 until his commitment after he was found incompetent to stand trial in December 1974 and (c) after recertification for a determination of competency in mid-1975, and (3) their expert opinion regarding appellant’s condition at the commission of the offense on September 2, 1974.

Dr. Raines testified that a schizophrenic condition is characterized by confusion, perplexity, disorientation as to person, place and time, and by periods when the person is a complete blank mentally and cannot answer a question. Many experience hostility, fear or anger with an inability to explain or to give a reason for such feelings. As the condition progresses it has a tendency to be chronic, and is characterized eventually by mental deterioration. When asked to explain the use of “chronic” to characterize schizophrenia, the doctor stated that tests of persons who suffer a severe psychotic break of schizophrenia, given before and after the break, indicate they “lose a little bit each time, so we don’t think really that people get well of schizophrenia, but it is characterized by remissions where they seem fairly normal, but on real close observation we can usually see some schizophrenia characteristics about these patients.” The ability of a person with a schizophrenic condition to conform his conduct to the law depends on “the degree of his sickness,” according to the doctor. “People can be a little bit schizophrenic and be in complete control of their facilities [sic], but if they are severely ill, certainly if they are psychotic they are unable to conform their behavior to within the limits of the law or to know the difference between right and wrong even.” Many schizophrenic persons are able to conform their behavior to the law, and there are times when they are aware of what they are doing. Regarding schizophrenic, paranoid type, Dr. Raines testified that paranoia is characterized by delusions of persecution, excessive suspi-ciousness, mistrust, and feelings such as of being watched, spied on, plotted against and so forth. Remissions are common and can occur dramatically, but more characteristic is a slow increase in anxiety with behavior becoming more bizarre, until relatives finally decide some help is needed. The doctor also testified, “ . . . people in a fugue state of not knowing what they are doing quite often carry on a conversation with you, they can drive a car, they can do all sorts of things, but you ask them about it the next day and they have no memory of it.” Schizophrenic persons also often have difficulty distinguishing fantasy and dreams from reality.

Dr. Weddige, the other psychiatrist-witness in this case, described schizophrenia as a psychosis where someone cannot tell the difference between what is real and what is not real. In many cases heredity appears to play a role. Experience of hallucinations is one symptom. “Chronic” means it goes on for a long period of time during which there may be flare-ups in symptoms, or very disorganized thinking, and at other times there may appear a quite normal ability to think. Recurrences may be for varying lengths of time, and the duration cannot be predicted. Remissions and recurrences can change from hour to hour “or maybe even quicker.” During remission one can know what he is doing, know that it is wrong, and can conform to the law.

A composite review of the testimony of both psychiatrists reveals the following sequence of interviews with appellant:

Dec. 7,1972 Dr. Raines first saw appellant
August 1973 seen by both doctors, diagnosed schizophrenic, chronic undifferentiated type
February 1974 Dr. Weddige found appellant’s symptoms in remission
(Sept. 2,1974 date of offense)
Sept. 20,1974 Dr. Raines found paranoid ideation
October 1974 appellant was hospitalized and then discharged; diagnosis by Dr. Raines of schizophrenic, paranoid type
Oct. 27,1974 appellant took thorazine overdose and was admitted at emergency room
Oct. 31,1974 readmitted suicidal to hospital as still
(Dec. 2,1974 Dr. Raines testified at competency hearing and appellant found not competent to stand trial)
July 22,1975 Dr. Raines found appellant’s condition in remission
(Sept. 8,1975 jury found appellant competent to stand trial)

Appellant’s history and symptoms prior to the commission of the offense, as disclosed through interviews with appellant, according to the testimony, included many physical complaints for which no physical cause could be found. From this appellant was first referred as a likely psychiatric case. The doctors noted a history of mental illness in appellant’s family, most strongly in his paternal grandfather. Before the referral he had been to the hospital after taking a bottle of tranquilizers, was severely depressed, and signed himself out of the hospital against medical advice. Several other suicide attempts were referred to. In his August 1973 interview Dr. Weddige saw early signs of schizophrenia. February 1974 was appellant’s last visit with the doctors before commission of the offense over six months later, and at that time Dr. Wed-dige found appellant’s condition in remission.

Appellant first saw one of the doctors after the offense on September 20, 1974. At that time Dr. Raines noted appellant had “rather drastic mood swings with paranoid ideation [and] auditory and visual hallucinations. . . . ” A little over a month later, appellant called Dr. Raines from a phone booth and said he had taken an overdose of thorazine and asked how much would be enough to kill him. He would not say where he was, but an hour later he showed up at the hospital emergency room. The doctor’s report, read into evidence, recites that appellant thought the rape was a nightmare and that he was asleep and dreaming while it was happening. Appellant reported feeling he would never be any better and he would rather be dead. On October 31 he was readmitted to the hospital and still considered suicidal. He reported feeling hopeless, miserable, and would rather be dead. About a month later he was found incompetent to stand trial.

After appellant was certified for a second determination of his competency to stand trial, and before that competency hearing was held, Dr. Raines again saw appellant and reported his observations in a letter to the court that was read into evidence. He found appellant “seemed to be completely all right,” and although he still had schizophrenia, it was in remission. He also reported, “When most recently examined on July 22, 1975, about the only sign or symptom of mental illness that he has was manifested in the fact that he had learned quite a bit of law since he got into trouble.”

We turn now to the expert opinions of appellant’s condition on September 2, 1974, the date of the offense. Dr. Raines on direct examination testified to the conclusions that on September 2 appellant was not aware that his conduct was wrong and was not capable of conforming his conduct to the law. On cross-examination he was asked the basis for those conclusions, and replied, “Well, I’ve known Richard for some time and he is a kind human being. I cannot believe that Richard Graham in his right mind could harm anyone,” and, “Knowing that he had a mental illness that is characterized by periods when they don’t know what they are doing, what is right and wrong.” He also conceded on cross-examination that it was possible that on September 2 appellant’s condition was in remission and that he was aware that his conduct was wrong and was capable of conforming his actions.

Dr. Weddige testified that appellant on the date in question “because of his chronic disorder . . . would have difficulty conforming his conduct to the letter of the law,” yet on cross-examination he, too, admitted the possibility of remission.

THE INSANITY DEFENSE ISSUE

The insanity defense in this jurisdiction is stated by statute in Sec. 8.01, supra:

“It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.”

The practice commentary to this provision is helpful in understanding the defense. It provides in part:

“The mental responsibility decision admittedly is an undifferentiated blend of medical, legal, and social considerations. However, it is the law and its processes that are entrusted with the obligation to reflect the existing state of medical and psychological knowledge and social norms. The legal policy involved is capable of being stated in many ways — and in many words — but at bottom it appears to be a policy against the imposition of criminal sanctions on those persons who, because of mental disease or defect, are unable to regulate and control their behavior in accordance with legal norms. The articulations of this legal policy, and the accommodation of the existing state of medical and psychological knowledge as well as social norms, is the task of a rule of mental responsibility for crime, i. e., insanity.
“Section 8.01 identifies the disorder, mental disease or defect, and then requires the trier of facts to determine if the disorder is present and whether as a result the person did not know his conduct was wrong or could not conform his conduct to the requirements of the law. This test permits the expert to testify in terms of the ‘whole man’ and focuses squarely and honestly on the appropriate legal policy.”

The purpose of the insanity defense issue is to determine whether the accused should be held responsible for the crime, or whether his mental condition will excuse holding him responsible. The Legislature has adopted the ALI Model Penal Code test for criminal responsibility in a modified form. The elements of the defense that describe the appropriate considerations for the jury in determining the responsibility issue are:

(1) The accused at the time of the conduct charged,
(2) as a result of mental disease or defect
(3)(a) did not know his conduct was wrong, or
(b) was incapable of conforming his conduct to the requirements of the law he allegedly violated.

While the defense is expressed in terms of a “mental disease or defect,” the issue is not strictly a medical one. It is an issue that invokes ethical and legal considerations as well. This basic character of the defense has been recognized in prior decisions. We will refer to a few cases for illustration.

In McGee v. State, 155 Tex.Cr.R. 639, 238 S.W.2d 707, the sufficiency of the evidence on the insanity defense was challenged. Omitting the facts, we excerpt from the opinion in that case:

“It is sufficient to say that it is difficult to understand how a stronger defense of insanity could be developed in the trial of a criminal case. We say this in view, especially, of the fact that the medical and expert witnesses all agreed that the appellant was suffering from some abnormal mental condition or dementia. Prominent psychiatrists attested the fact that such condition rendered the appellant incapable of knowing right from wrong or the nature and extent of his acts. On the other hand, Dr. Baugh, testifying in behalf of the state and after conceding that appellant was, from a medical standpoint, insane, testified as follows: T simply say that he still had mind enough to know the right and wrong of his act on July 7 and to know the nature and consequences of his acts.’
“This statement by the witness, in connection with his other testimony, very clearly draws the distinction between medical and legal insanity. From a medical standpoint, one may be insane by reason of mental disease or mania, yet, from a legal aspect, not unless or until his mental condition has reached the point where he is unable to distinguish right from wrong and to know the nature and consequences of his act is he exonerated or excused for crime committed while in that condition.”

In Ross v. State, 153 Tex.Cr.R. 312, 220 S.W.2d 137, 139, 144, the following observations were made on the scope of the insanity defense:

“Eliminating all discussion about the types of insanity, the one controlling question in this case is whether the accused was so mentally deranged at the time of the commission of the alleged offense as to [meet the test used at that time]. He might have been indulged even from childhood so that he gave undue importance to his own position in matters. He might have been sensitive, suspicious, and retiring. He might have been abnormal, as concluded by the psychiatrists, all the days of his life. His nerves might have been frayed because of his strenuous professional duties and the worrpes] which his losses brought upon him. Yet the question remains: Did he have sufficient mental capacity at the time of the tragedy to [meet the test used at that time.]
“The circumstances under which the murder took place are important. His actions before and after the tragedy were considered by the jury. His life experiences were presented to the jury and utilized by them in determining the mental capacity of the man at the very time of the shooting. The field of inquiry is wide, but this cannot affect the rule of law which we have stated .
******
“Mere mental deficiency or derangement, though it may constitute a form of insanity known to and recognized by medical science, does not excuse one for crime.”

The issue is not strictly medical, and expert witnesses, although capable of giving testimony that may aid the jury in its determination of the ultimate issue, are not capable of dictating determination of that issue. Only the jury can join the non-medical components that must also be considered in deciding the ultimate issue. That ultimate issue of criminal responsibility is beyond the province of expert witnesses. Were it otherwise, the issue would be tried in hospitals rather than the courts. In Hefley v. State, 480 S.W.2d 810 (Tex.Civ.App.), an appeal from a restoration of sanity proceeding, the court wrote:

“The argument of the appellant that he is sane as a matter of law because each of the three psychiatrists called as a witness said that in their opinion he was sane and that no psychiatrist for the State testified that he was insane is untenable. If this were not so a determination of the issue of sanity would be left solely in the hands of psychiatrists and the important function of the jury to make such determination would be vitiated.”

These interrelated problems of the role of the expert witness, the role of the jury, and the nature of this issue that involves ethical and legal considerations as well as the medical consideration, have been the subject of much discussion and opinion writing in the United States Court of Appeals for the District of Columbia Circuit. A lengthy discussion of the subject, with the history of the issue in that court, and a summary of the positions of other circuits, may be found in United States v. Brawner, 153 U.S.App. D.C. 1, 471 F.2d 969. In that case the court was concerned with domination of the issue by expert witnesses testifying to legal conclusions in terms of the issue. The court adopted a modified form of the ALI Model Penal Code test, just as this jurisdiction has. Although the two variations are not identical, the Brawner court’s observations on the ultimate issue are relevant to our discussion today:

“The doctrine of criminal responsibility is such that there can be no doubt ‘of the complicated nature of the decision to be made — intertwining moral, legal, and medical judgments,’ . . . [J]ury decisions have been accorded unusual deference even when they have found responsibility in the face of a powerful record, with medical evidence uncontradicted, pointing toward exculpation. The ‘moral’ elements of the decision are not defined exclusively by religious considerations but by the totality of underlying conceptions of ethics and justice shared by the community, as expressed by its jury surrogate. The essential feature of a jury ‘lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.’ .
“The expert witnesses — psychiatrists and psychologists — are called to adduce relevant information concerning what may for convenience be referred to as the ‘medical’ component of the responsibility issue. But the difficulty ... is that the medical expert comes, by testimony [in terms of the statutory test] to express conclusions that in essence embody ethical and legal conclusions.” (153 U.S.App.D.C. at pp. 14 — 15,471 F.2d at pp. 982-983)

With this understanding of the complexity of the issue, “intertwining moral, legal, and medical judgments,” we turn next to the effect of the evidence summarized above in light of the nature of the issue.

THE EFFECT OF THE EVIDENCE

The thrust of appellant’s argument is that the expert testimony he presented on the issue stood uncontroverted by the State. He also relies on G_⅛ testimony that appellant “just went crazy doing it,” and her statements describing appellant as “getting his senses back” after the physical violence he inflicted upon her.

It is not necessary for the State to present expert medical testimony that a defendant is sane in order to counter the defense experts. In Hernandez v. State, 157 Tex.Cr.R. 112, 247 S.W.2d 260, and Ross v. State, 153 Tex.Cr.R. 312, 220 S.W.2d 137, 143, jury findings that the accused was sane were upheld even though no medical expert testified to that effect. In United States v. Fortune, 513 F.2d 883 (5th Cir. 1975), reh. denied 518 F.2d 1407, cert. denied 423 U.S. 1020, 96 S.Ct. 459, 46 L.Ed.2d 393 (where the government must prove the defendant’s sanity beyond a reasonable doubt once the issue is raised), the court wrote:

“A defendant is not entitled to a judgment of acquittal simply because he offers expert testimony on the issue of insanity and the government attempts to rebut it without any expert witnesses. . While a jury may not arbitrarily disregard expert testimony, it also may not give conclusive effect to the opinion of an expert merely because that opinion is not challenged by some other expert.”

In Muro v. Houston Fire & Casualty Ins. Co., 329 S.W.2d 326 (San Antonio Civ.App., 1959, ref. n. r. e.), the court wrote:

“[The jury] may accept or reject in whole or in part the opinion testimony of physicians. They may accept lay testimony over that of experts. Opinion testimony does not establish material facts as a matter of law. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345; Fry v. Dixie Motor Coach Corp., 142 Tex. 589, 180 S.W.2d 135; Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943. ‘If the opinions of the experts as given in the evidence do not comport with the jurors’ idea of sound logic, the jurors have a right to say so.’ Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62, 64.”

These rules on the weight of expert opinion testimony are especially true on the issue of the insanity defense, in that this issue is more than just a medical one. We look now at the expert testimony in this case.

The mental condition of appellant at the time of the commission of the offense is relevant under the terms of the statutory defense. Cf. Griffin v. State, 154 Tex.Cr.R. 295, 226 S.W.2d 869, 870 (on motion for rehearing). The last time either of appellant’s expert witnesses saw him before the crime was six months before that event, and at that time his condition was in remission. Although his condition at his next examination eighteen days after the offense, and during the ensuing two or three months, was described in severe terms by the doctors, it is also true that these observations and assessments were made at a time when appellant was charged with a serious offense, and no doubt was under a considerable degree of stress from the proceedings against him. It cannot be said as a matter of law that the diagnosis in late September and October may be projected back to the offense and held conclusive as to that date. Also, as the doctors testified, schizophrenia is characterized by remissions and recurrences that come at irregular and unpredictable intervals.

The doctors’ conclusions in terms of the statutory defense (as distinguished from their descriptions of the diagnostic process and results, and other properly medical matters) are of negligible weight in considering this issue. We reach this conclusion not only on the authorities referred to above, and on the nature of the issue as more than one of medical fact, but also because those conclusions in this case are not shown to rest on anything more than a general deduction from the diagnostic classification of appellant as schizophrenic. In this respect the doctors’ testimony regarding variations in the severity of the condition and its effects, both among the population of persons with schizophrenic symptoms, and over time in any individual exhibiting such characteristics, served in the nature of impeachment of their own extreme conclusion of appellant’s mental state on the particular date in question.

The circumstances of the crime itself are always important in determining the mental state of the accused at the commission of the offense. Ross v. State, 220 S.W.2d 137, 139. Attempts to conceal incriminating evidence and to elude officers can indicate knowledge of wrongful conduct. Runnels v. State, 101 Tex.Cr.R. 434, 276 S.W. 289; Griffin v. State, 154 Tex.Cr.R. 295, 226 S.W.2d 869, 870 (on motion for rehearing). In Murray v. State, 147 Tex.Cr.R. 474, 182 S.W.2d 475, 477, on appeal from a conviction for rape, the importance of the circumstances surrounding the offense was plainly described:

“The facts themselves evidenced an enforced association between the two injured parties and appellant over a period of hours, appellant’s greed being evidenced as well as his lust towards the young lady; his fear of detection and effort to escape evidencing his fear of punishment for the deeds committed doubtless had some weight with the jury as to their finding relative to his knowledge of right and wrong, and the consequences of his act. . . . The motive in his actions seems to suggest that of lust for the person of this young girl, and a knowledge of the serious consequences following the gratification of such lust, evidently possessed of a knowledge that he was committing a wrong.”

While the insanity defense is no longer restricted to lack of knowledge of wrongfulness of the conduct, but may rest alternatively on incapacity to conform conduct to the requirements of the law violated, Sec. 8.01, supra, the circumstances surrounding the offense remain relevant to the jury’s determination of the issue. Here, the behavior of appellant during the early part of the evening of September 2, as described inG_⅛ testimony, was generally normal and demonstrated an awareness of the situation. As the evening progressed he consumed more and more beer, and made repeated sexual advances with increasing aggressiveness, reaching physical violence on his second unsuccessful attempt, and culminating in forced sexual violence and beatings in his final attack. His apologies after the beatings and his fear of taking G_home because of fear of her parents and that she would go the police indicate an awareness of his acts and of wrongfulness. His consumption of alcoholic drink taken with his own statements after his acts that he must have been drinking too much indicates a likely source of his failure to exercise restraint over his own behavior.

G-⅛ testimony that during the attack appellant went crazy and that after the attack he got his senses back or came back to his senses need not be taken as evidence of insanity. Such expressions are often used in everyday speech to describe behavior that is unexpected, inappropriate, or bizarre, without implying the sense of insanity that excuses criminal responsibility. The context of the witness’ testimony shows she was using “crazy” in the everyday sense. Appellant’s reliance on this testimony is misplaced.

Ultimately the issue of insanity at the time of the offense excusing criminal responsibility lies in the province of the jury, not only as to the credibility of the witnesses and weight of the evidence, but also as to the limits of the defense itself. This is because, as discussed in the preceding section of this opinion, the issue is not, strictly speaking, one of medical fact. Cf. Ross v. State, McGee v. State, United States v. Brawner, all supra. The issue encompasses more than mere facts, requiring a considered judgment of whether the accused as a result of mental disease or defect did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated. The “mental disease or defect” component is one that limits the availability of the defense, not one that automatically invokes its protective shield. In deciding whether the abnormal mental condition of the accused will excuse criminal responsibility, the jury is not restricted to medical science theories of causation. The connective “result” requirement of the issue encompasses the inarticulable ethical component, which includes imperatives of free will, self control, and responsibility for one’s acts that are fundamental to our notions of man, and that are the foundation of social relations and criminal responsibility built on such a concept of man. Rarely will this Court overturn a jury’s findings on this issue. Kiernan v. State, 85 Tex.Cr.R. 500, 208 S.W. 518 (1919), and Gardner v. State, 85 Tex.Cr.R. 103, 210 S.W. 694 (1919), cited by appellant were two such cases. This is not such a case.

The first ground of error is overruled.

In his second ground of error appellant asserts the trial court erroneously restricted defense counsel’s voir dire of the jury panel. On appeal he contends he was not allowed to explain to the panel the procedures under Art. 46.03, Sec. 4, Y.A.C.C.P., governing disposition of a defendant who is found not guilty by reason of insanity. This, he asserts, denied him the opportunity to empanel a jury free of bias.

The right to ask questions of panel members is included in the right to counsel and is of constitutional magnitude in this State. Abron v. State, 523 S.W.2d 405, and authorities cited there. The right, however, is not without limits. In Abron, supra, the Court wrote:

“Not every restriction of the conduct of the jury voir dire infringes upon a defendant’s right to effective assistance of counsel. This Court has consistently held that the trial court has wide discretion over the course of the voir dire of the jury panel. (1) Reasonable time limits may be placed on the voir dire examination. (2) Repetitious or vexatious questioning may be prevented. (3) Questions asked in an improper form may be disallowed. And (4) the court may restrict inquiry into the personal habits of jurors as opposed to inquiry into personal prejudices or moral beliefs. Furthermore, prejudice or injury must be shown to demonstrate reversible error where the right to propound questions on jury voir dire is restricted.” (Citations and footnotes omitted.)

The record in this case reflects the following exchange:

“[Defense counsel addressing panel member]: You also understand that there is a provision in the event that was done where this Court—
“[Prosecutor]: I object to this, Your Honor. He is going into matters which will not even face this jury. They are to decide this case on its facts and not be concerned at all by what may happen in the future.
“THE COURT: Mr. Chappel.
“MR. CHAPPEL: Yes, sir.
“THE COURT: The Court is going to sustain that objection, confine your remarks to the trial of this matter.”

Although it is not necessary to show the answer that would be given in order to preserve error if a question for exercising peremptory challenges is disallowed, Burkett v. State, 516 S.W.2d 147, the question should certainly appear in the record. Here, counsel did not even complete the statement that apparently was intended as a predicate for some question. Without more in the record we are unable to say the trial court’s ruling was an abuse of discretion. The ground of error is overruled.

Appellant next argues the jury charge on the defense of insanity presents fundamental error by placing the burden of proof on appellant.

By designating the issue an affirmative defense, Sec. 8.01, supra, the Penal Code places the burden of proof on the accused. Sec. 2.04(d), supra.

The thrust of appellant’s argument, however, is that evidence of his prior adjudication of incompetency to stand trial shifted the burden to the State.

The defense of insanity at the time of the offense, Sec. 8.01, supra, and the test for incompetency to stand trial, Art. 46.02, Sec. 1, V.A.C.C.P, are wholly distinct issues with no common elements. Furthermore, to the extent that both issues are concerned with the mental status of the person, they are concerned with that status at different times. An adjudication that a person does not have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,” or that he does not have “a rational as well as factual understanding of the proceedings against him,” Art. 46.02, Sec. 1, supra, does not alter the otherwise existing presumption that at the time of the offense the accused was sane under the standards of Sec. 8.01, supra.

The burden of proof did not shift. The ground of error is overruled.

In his final ground of error appellant complains of prosecutorial jury argument. After counsel objected the court instructed the prosecutor to confine his remarks to the record. No adverse ruling was obtained. Nothing is presented for review.

The judgment is affirmed.

      . “Q. Did he act like he was out of his ■ senses and crazy at that time when he was beating you up?
      “A. No. He acted like he was — I don’t know. He just went crazy doing it. He just hit me and all at once and telling me to shut up and all.
      Referring to appellant’s queries, “Did I do that?” the victim testified “I think he knew what he was doing. He was just saying that to make me feel better toward him or something.”

      . The limits of many defenses are left to the jury. Such limits are usually expressed in terms that leave to the jury the application of norms that are not readily susceptible to reduction to a concise factual formula. The jury in this sense participates in determining the law as well as the facts. Many defenses exhibit this characteristic through incorporation of a standard of “reasonable belief.” See, e. g., V.T.C.A, Penal Code Secs. 8.02(a), Mistake of Fact; 8.03(b), Mistake of Law; 9.21(a)(c), Public Duty; 9.22(1), Necessity; 9.31, Self-Defense; 9.32(3), Deadly Force in Defense of Person; 9.33, Defense of Third Person; 9.34, Protection of Life or Health; 9.41, Protection of One’s Own Property; 9.42, Deadly Force to Protect Property. Other defenses use other reasonableness standards. See, e. g., Secs. 8.05, Duress (a person of reasonable firmness); 9.03, Confinement as Justifiable Force (takes reasonable measures to terminate); 9.22(2), Necessity (according to ordinary standards of reasonableness); 9.32(2), Deadly Force in Defense of Person (a reasonable person in the actor’s situation); 9.44(2), Use of Device to Protect Property (use of the device is reasonable). Sometimes terms other than “reasonable” are used. See, e. g., Secs. 8.06(a), Entrapment (persuasion or other means likely to cause); 42.01(b), Disorderly Conduct (significant provocation). According to the standard and the scope of the issue, the degree of discretion accorded the jury in resolving the issue on undisputed facts will vary. Before such a decision may be overturned on appeal, the fact issue must be undisputed or resolved to one end of the spectrum, and that fact determination must be found to lie outside the realm of discretion accorded the jury under the applicable standard, be it “reasonable belief,” “reasonable firmness,” “likely to cause,” or some other.

      . Furthermore, the adjudication of incompetence to stand trial did not bar appellant’s trial because he was subsequently, prior to trial, found competent to stand trial by another jury. Hare v. State, Tex.Cr.App., 460 S.W.2d 124, 127-128.


source: Caselaw Access Project

license: Public Domain

text:
    Mark GRANT, Appellant, v. The STATE of Texas, Appellee.
    No. 57828.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 21, 1978.
    Robert C. Roe, Jr. (on appeal only), Fort Worth, for appellant.

      Tim Curry, Dist. Atty., Marvin Collins, Howard Borg and Candyce Howell, Asst. Dist. Attys., Fort Worth, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This appeal is from an order revoking probation. On September 13, 1976, appellant pled guilty to the offense of delivery of more than one-fourth ounce of marihuana, and his punishment was assessed at three years in the Texas Department of Corrections. Imposition of sentence was suspended and probation was granted, subject to certain terms and conditions. Condition (a) of the order of probation was that appellant “commit no offense against the laws of this or any other state or the United States.”

On May 13,1977, the State filed a motion to revoke probation alleging that on or about May 4,1977, appellant committed the offense of theft. On June 13, 1977, following a hearing on the State’s motion, the court revoked appellant’s probation, finding that he had committed theft on May 4, 1977.

The sufficiency of the evidence is challenged.

The record reflects that on May 4, 1977, between 11:00 and 11:30 p. m., a Toro lawnmower was taken from Jesse Standley’s vehicle which was parked in front of May and Kay’s Beer Lounge located at 3536 Hemphill in Ft. Worth. Standley called the police on finding that the lawnmower had been taken. He testified that he did not see anyone take the mower.

Officer Salinas of the Ft. Worth Police Department was patrolling in the vicinity and immediately before receiving the radio call informing him of the theft noticed two boys and a man pushing a lawnmower in the parking lot of the Starlight Bar, which is located at 4221 Hemphill. Upon receiving the radio call, Salinas proceeded to May and Kay’s Beer Lounge and contacted Standley. After receiving a description of the lawnmower from Standley, Salinas went back to the Starlight Lounge where he had earlier seen the mower and three individuals. After making his investigation at the scene, appellant was placed under arrest. Salinas testified that when he had earlier seen the three individuals with the lawnmower appellant was the one pushing the mower.

Charles Sheppard testified for the State and related that he had bought the lawnmower in question from a Lonnie Weehunt in the late evening of May 4, 1977. He stated that others at the Starlight Lounge knew that he was in the market for a lawnmower but that he did not tell appellant this. Sheppard testified that he arrived at the lounge after 10:00 p. m. on May 4, 1977, and did not leave until after the police arrived. He stated that he had played a few games of pool with the appellant during this time period and that he did not see appellant leave the bar although he could not testify for sure that appellant never left. Sheppard testified that it was Weehunt who approached him concerning the buying of the lawnmower and that it was Weehunt who received the purchase money. Sheppard further stated that he asked the appellant to help him load the mower that he had purchased from Wee-hunt into his truck due to the fact that he suffered from some physical incapacity. Sheppard related that as far as he knew the only connection that appellant had with the transaction was the fact that appellant helped him put the mower into his vehicle. Sheppard indicated that the first time that he saw the lawnmower was when he saw an individual, later identified as Weehunt, unload the mower from his car. He further testified that he did not see appellant come to the bar with the lawnmower. A discussion was held concerning price and appellant came out of the bar and helped load the mower into Sheppard’s car. Although the record is not clear, appellant apparently was present during a part of these discussions.

Lonnie Weehunt testified for the defense and stated that he purchased the mower in question from an unidentified man a short time before he sold it to Sheppard. He testified that appellant did not steal or take the lawnmower and that appellant did help load the mower into Sheppard’s car. He further stated that he was paid by Sheppard for the sale of the mower. He testified that Sheppard told him that he was looking for a mower and that appellant was not present when this discussion transpired. He stated that when he and Sheppard were discussing price appellant was outside the bar on the porch and was not standing close enough to hear what was being said. He also testified that although appellant lifted the mower into Sheppard’s truck he did not push the mower.

Lois Smith testified that she worked at the Starlight Lounge and that on the evening of May 4, 1977, between 10:30 and 12:00 p. m. the appellant did not leave the lounge except for a brief moment to help Sheppard with the lawnmower.

The foregoing evidentiary summation establishes that the State offered no direct evidence that appellant committed the theft. The State relies solely upon possession as evidence of guilt. In Crain v. State, Tex.Cr.App., 529 S.W.2d 774, quoting from McKnight v. State, Tex.Cr.App., 399 S.W.2d 552, the rule was stated as follows:

“To warrant an inference or presumption of guilt from the circumstances alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.”

In the present case we hold that the evidence was insufficient “to warrant an inference or presumption of guilt from the circumstances alone of possession . . .” Although the possession was recent and evidently unexplained, the evidence does not establish that it was personal and that it involved a distinct and conscious assertion of property by the appellant. In 5 Branch’s Annotated Penal Code, 2nd Edition, Section 2650, it is stated:

“(A) defendant is not shown to have been in possession of the stolen property if the facts relied on by the state to show such possession do not involve a distinct and conscious assertion of property by the defendant.”

The uncontroverted evidence adduced at the revocation hearing established that the only contact appellant had with the lawnmower was when he helped Sheppard load it into his truck. Whether or not appellant pushed the lawnmower from Wee-hunt’s car to Sheppard’s truck while both' vehicles were parked in the Starlight Lounge parking lot in addition to lifting the mower into the truck, we fail to see how the State has established “a distinct and conscious assertion of property by the appellant.” While the trial court is the “sole trier of the facts, the credibility of the witnesses and the weight to be given the testimony” at a revocation of probation hearing, it is nonetheless incumbent upon the State to prove every element of the offense by a preponderance of the evidence. Reed v. State, Tex.Cr.App., 533 S.W.2d 35. Upon the record before us, we conclude that the State has failed to do so. The State’s reliance on Carter v. State, Tex.Cr.App., 493 S.W.2d 789, is misplaced. In that case two tags which had been attached to the goods before they were stolen were found in appellant’s billfold at the time of arrest; moreover, the evidence therein established that appellant had attempted to sell a part of the stolen goods the day before.

Accordingly, we hold that the trial court abused its discretion when it revoked appellant’s probation in that the evidence presented was insufficient to establish that appellant violated condition (a) of his probation by committing the offense of theft as alleged in the State’s motion to revoke.

The judgment is reversed and the cause is remanded.

      . Ross v. State, Tex.Cr.App., 523 S.W.2d 402, 403, and cases cited therein.


text:
    Ricky CHESTNUT, Appellant, v. The STATE of Texas, Appellee.
    No. 54590.
    Court of Criminal Appeals of Texas. Panel No. 3.
    May 24, 1978.
    Rehearing en banc Denied June 28, 1978.
    John R. Francis, Temple, for appellant.
    Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, and Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery; punishment was assessed at twenty years.

This appears to be a case of first impression. In his only ground of error, appellant contends the trial court erroneously admitted at the punishment stage three prior misdemeanor convictions for assault obtained in the Municipal Court of the City of Temple. The parties agree that disposition of this issue is controlled by Article 37.07, Sec. 3(a), V.A.C.C.P., which provides:

“Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.” (Emphasis added.)

In Ramos v. State, Tex.Cr.App., 419 S.W.2d 359, the Court noted the addition of the emphasized language, and the sentence in which it appears, by the 1967 amendment to the statute. Although not controlling in that case, the Court observed:

“It would thus appear in the future that a simple assault conviction occurring in a court of record either as a primary charge or as a lesser and included offense would be admissible as part of a defendant’s prior criminal record without regard to its materiality to the offense for which he is on trial; but if the simple assault conviction occurred in a Justice or Corporation Court [not a court of record], such conviction is inadmissible unless material to the offense charged.”

The issue presented is whether the misdemeanor convictions in municipal court are material to the aggravated robbery for which appellant stood convicted at the punishment stage of the trial.

The robbery victim testified that two men held him up when he was driving his taxi. Appellant was in the back seat and his accomplice rode in front. The accomplice held a gun on the driver while appellant held him with his hand over the vie-tim’s mouth. He was then removed from the car and searched by appellant, who took ,a wallet with two hundred dollars from his pocket.

The prior misdemeanor convictions were each for assault under V.T.C.A., Penal Code Sec. 22.01(a)(3), which provides:

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

Appellant testified that in each of the instances for which a misdemeanor conviction was obtained, he had engaged in a fight with someone.

A conviction for assault under Sec. 22.-01(a)(3), supra, does not necessarily show an instance of a violent physical attack becaiise the prohibition of offensive or provocative physical contact is broader than just of violence. Here, however, appellant’s testimony shows the prior convictions were for physical violence against the person.

Although robbery and aggravated robbery are classified as offenses against property, V.T.C.A., Penal Code Title 7, the taking of property is no longer an essential element of the offense. Earl v. State, Tex. Cr.App., 514 S.W.2d 273. The primary interest protected by the robbery offenses is the security of the person from bodily injury or threat of bodily injury that is committed in the course of committing theft. V.T. C.A., Penal Code Secs. 29.02, 29.03. The security of the person from such injury and threats is also the central interest protected by the assault provisions of the code, and much of the statutory language is the same. Compare, Secs. 22.01 and 22.02 with 29.02 and 29.03, supra. Convictions for assault often will be material under Art. 37.07, Sec. 3(a), supra, at the punishment stage of robbery prosecutions.

In this case, however, the misdemeanor or assault convictions were not under either of those portions of Sec. 22.01, supra, that also are elements of robbery. See, Sec. 22.-01(a)(1) and (2), supra. Nevertheless, as stated above, the evidence does show appellant’s misdemeanor convictions were for physical violence against the person. Under the facts of this case we hold the misdemeanor convictions, although not in a court of record, were admissible under Art. 37.07, See. 3(a), supra, because they were material to the offense charged.

The ground of error is overruled.

The judgment is affirmed.

ROBERTS, J., dissents.


text:
    Willie B. BROOKS, Appellant, v. The STATE of Texas, Appellee.
    No. 54322.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 24, 1978.

      Charles E. Coleman, Dale Long, on appeal only, Tyler, for appellant.
    A. D. Clark, III, Dist. Atty., and Dannis R. Hurst, Asst. Dist. Atty., Tyler, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for forgery. Punishment, enhanced under the provisions of V.T.C.A., Penal Code Sec. 12.-42(d), was assessed at life imprisonment.

The sufficiency of the evidence is not challenged.

In his first ground of error the appellant contends that the trial court erred in failing to instruct the jury on the volun-tariness of his confession. Art. 38.22, V.A. C.C.P.

It should be noted at the outset that the appellant does not question the sufficiency of the evidence adduced at the Jackson v. Denno hearing pertaining to the issue of the voluntariness of the confession. The appellant’s ground of error is based on the rule that once evidence is introduced during the trial on the merits raising an issue as to the voluntariness of the confession, Art. 38.22, supra, required the trial court to instruct the jury on the matter. Of course, if the evidence offered before the jury did not raise an issue on the voluntariness of his confession, the appellant was not entitled to the jury charge. Lopez v. State, Tex.Cr.App., 535 S.W.2d 643; Yeagin v. State, Tex.Cr.App., 400 S.W.2d 914; Dunlap v. State, 462 S.W.2d 591; Buchanan v. State, Tex.Cr.App., 453 S.W.2d 479.

We need not detail here the evidence regarding the taking of the confession that was presented before the jury. In his brief appellant’s only citation to the record regarding evidence heard by the jury on the matter is to the State’s evidence that the confession was voluntary. The brief then asserts, “The issue of the voluntariness of the confession, having first been raised by the prosecution before the jury, was clearly framed from the outset of the trial and remained the principal issue throughout.” We are not convinced that this was the case. Evidence presented by the State in anticipation of an attack on the voluntariness of a confession does not put voluntariness in issue. Only when some evidence is presented that a confession is not voluntary is the matter put in issue. Appellant cites no evidence, and we find none, that raised the issue before the jury.

The first ground of error is overruled.

In his other ground of error the appellant argues that the trial court reversibly erred by failing to make findings of fact and conclusions of law as to the volun-tariness of the confession as required by Art. 38.22, supra, and Jackson v. Denno, supra. See Davis v. State, Tex.Cr.App., 499 S.W.2d 303. In Jackson v. Denno, supra, the United States Supreme Court stated:

“Where pure factual considerations are an important ingredient, which is true in the usual case, appellate review in this Court is, as a practical matter, an inadequate substitute for a full and reliable determination of the voluntariness issue in the trial court and the trial court’s determination, pro tanto, takes on an increasing finality. The procedures used in the trial court to arrive at its conclusions on the coercion issue progressively take on added significance as the actual measure of the protection afforded a defendant under the Due Process Clause of the Fourteenth Amendment against the use of involuntary confessions. These procedures must, therefore, be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend. . . . ”

In Hester v. State, Tex.Cr.App., 535 S.W.2d 354, we abated the appeal therein where the voluntariness of the confession was challenged on appeal and the findings of fact and conclusions of law filed by the trial court were wholly inadequate to “assist this Court in determining the sufficiency of the evidence to support whatever unstated findings of fact were made by the fact finder. Consequently, we [were] unable to review the findings challenged by ’ the appellant’s ground of error,” at 356. In Hester we noted, “[T]his court is not the proper forum for the initial fact finding process, but should restrict its review of the facts to any issues raised in challenge to the trial court’s finding.” See also Quinn v. State, Tex.Cr.App., 558 S.W.2d 10.

Unlike in Hester v. State, supra, the present appellant does not challenge the sufficiency of the evidence pertaining to the voluntariness of his confession. No challenge is made “to whether the trial court abused its discretion in one of its findings of fact or to whether the trial court properly applied the law to those facts found by it.” Hester, supra, at 356. Although Hester and its progeny would require, at most, an abatement of an appeal where the sufficiency of the evidence surrounding the vol-untariness of the confession is challenged on appeal and the trial court has filed inadequate findings of fact and conclusions of law to aid this Court in deciding the issue, we perceive no reason to apply the Hester rule and abate the present appeal when the appellant has not challenged the voluntariness and admissibility of the confession. The ground of error is overruled.

The judgment is affirmed.

      . Acts 1967, 60th Leg., p. 1740, ch. 659, Sec. 23, eff. Aug. 28, 1967, which controlled at the time of the instant trial.

      . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

      .Art. 38.22, supra, Sec. 3 provides: “When the issue is raised by the evidence, the trial judge shall appropriately instruct the jury, generally, on the law pertaining to such statement or confession.”

      . The trial court did not file in the record a formal instrument denominated as Findings of Fact and Conclusions of Law. It did however, recite into the record its findings after the termination of the Jackson v. Denno hearing. The appellant complains of the trial court’s failure of making a finding of fact as to whether he was physically capable of making a confession at the time he was interrogated by the police.


author: DALLY, Judge.

text:
    Billie Merle PAYNE, Appellant, v. The STATE of Texas, Appellee.
    No. 55601.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 24, 1978.

      Stan Brown, Abilene, for appellant.
    Lynn Ingalsbe, Dist. Atty. and Patricia A. Elliott, Asst. Dist. Atty., Abilene, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for passing a forged check; the punishment is imprisonment for 5 years.

The appellant urges that the evidence will not support the conviction, because the State failed to prove that the purported maker of the check did not authorize the appellant to make and pass the check.

To sustain the conviction for passing a forged check there must be proof that the check was forged. V.T.C.A. Penal Code, Sec. 32.21(a)(1)(B). To prove that a check is forged it is necessary to prove that the purported maker did not authorize the defendant or another to make the check. V.T.C.A. Penal Code, Sec. 32.21(a)(l)(A)(i); Reed v. State, 533 S.W.2d 35 (Tex.Cr.App. 1976).

On the afternoon of September 24, 1976, appellant purchased several items of clothing from Aunt Betty’s Rags, a store in Abilene. In the presence of the sales clerk, the appellant made a check for $65.10, the purchase price. The check is drawn on the account of Willis James Gee, Jr., and Nell Gee, and the name “Nell F. Gee” appears on the check as the maker. On the following day, appellant returned most of her purchases and exchanged them for other items of clothing and $21.52 in cash. The check was subsequently refused by the bank because of the irregularity of the signature.

Nell F. Gee, appellant’s mother, testified that she did not sign the check in question. When asked if she authorized appellant to sign her name to the check, she answered, “Well, to my knowledge, I don’t remember authorizing her.” During cross-examination, the following exchange took place:

“Q. Okay, Mrs. Gee, I believe you stated that you couldn’t remember ever authorizing Billie Merle Payne to write a check on or about September 24th, 1976, was that your testimony?
“A. That is correct.
“Q. All right. Based on that testimony, you really can’t definitely deny ever authorizing her to write a check either, can you?
“A. No.
“Q. All right. Do you say it is possible, then, that you could have authorized her to write such a check?
“A. It is possible.”

Mrs. Gee went on to testify that she was taking medication during September, 1976; that this medication left her sleepy and somewhat “dopey;” and that she could •have given appellant permission to write the check while under the influence of this medication and not remember doing so.

Appellant’s brother testified that, sometime during late September, 1976, he heard appellant ask Mrs. Gee, who was in her bedroom, for permission to write a check on her account. He testified that Mrs. Gee’s response was that “she didn’t care how much checks she wrote.” The evidence is not sufficient to support a finding that appellant was not authorized to make and pass the check. Reed v. State, supra. See Roberts v. State, 53 S.W. 864 (1899).

The judgment is reversed and the cause remanded.


author: ONION, Presiding Judge.

text:
    Roy Dean PENNY, Appellant, v. The STATE of Texas, Appellee.
    No. 58102.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 31, 1978.
    Rehearing en banc Denied June 28, 1978.
    James H. Kreimeyer, Belton, for appellant.
    Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. On August 9, 1976 appellant entered a guilty plea before the court to the offense of felony theft, and his punishment was assessed at six (6) years’ confinement and a fine of $350.00. He was, however, placed on probation subject to certain conditions.

On October 12, 1977 the State filed a motion to revoke probation alleging the commission of the offense of the unauthorized use of a motor vehicle and the failure to report to the probation officer. On November 1, 1977 the court revoked probation on the basis of the alleged commission of a penal offense. Sentence was imposed and notice of appeal was given.

On appeal appellant contends only that the indictment upon which appellant was convicted of theft is fatally defective in that it failed to allege the offense of theft under the Penal Code in effect on July 19, 1975, the date the offense was shown to have occurred.

Upon an appeal from an order revoking probation, attacks upon the original indictment have been permitted where it claimed the indictment is fundamentally defective. See Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). Therefore, we shall entertain appellant’s contention.

Appellant argues that V.T.C.A., Penal Code, § 31.03, in effect on July 19, 1975, prohibited the obtaining of property unlawfully or the exercising of control, other than real property, unlawfully. He points out that the Legislature amended § 31.03, effective September 1,1975, to re-define theft as the unlawful appropriation of property with intent to deprive the owner of property.

Appellant contends the indictment was drafted in the terms of the amendment rather than the terms of § 31.03 in effect at the time of the commission of the offense.

Omitting the formal parts, the indictment, returned on August 4, 1976, alleged the appellant:

“. . . did then and there, intentionally and knowingly, unlawfully appropriate property, to-wit: Twelve (12) Motor Vehicle Tires of the value of $200.00 or more, but less than $10,000.00 from Joe Doehring without the effective consent of the owner, Joe Doehring and with intent to deprive the said owner of said property. . . ” (Emphasis supplied.)

The State readily admits that the indictment was drafted in the terms of the amendment to § 31.03 rather than in the terms of said section in effect at the time of the offense, but contends the indictment is not fundamentally defective.

Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977), sets out the four different sets of possible elements for the offense of theft under § 31.03 prior to the amendment. Hughes v. State, 561 S.W.2d 8 (Tex.Cr.App.1978), sets out the two different sets of possible elements under § 31.03, as amended. In comparing the elements of the offense under the original version of § 31.03 with the 1975 amendment thereto, it is observed that the elements are almost identical except that under the original version whether an accused “obtained” property or “exercised control over” the property was alleged whereas under the current amendment it is alleged the accused “appropriated.”

V.T.C.A., Penal Code, § 31.01(5), provided:

“ ‘Obtain’ means to bring about a transfer or purported transfer of a non-possessory interest in property, whether to the actor or another.”

The 1975 amendment to § 31.01(5) provides:

“ ‘Appropriate’ means:
“(A) to bring about a transfer or purported transfer of title to or other non-possessory interest in property, whether to the actor or another; or
“(B) to acquire or otherwise exercise control over property other than real property.”

One net effect of the 1975 amendments to said § 31.01(5) and § 31.03 was to substitute the term “appropriate” for the terms “obtain” and “exercising control over.”

In viewing the definitions, it is clear that appellant was apprised that he was charged with “obtaining” or “exercising control over” property when the term “appropriated” was alleged.

There was no motion to quash the indictment, and we conclude it is not fundamentally defective.

The judgment is affirmed.


author: W. C. DAVIS, Judge.

text:
    Thomas Chester HENRY, Appellant, v. The STATE of Texas, Appellee.
    No. 54618.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 14, 1978.

      George Michael Jamail, Beaumont, for appellant.
    Tom Hanna, Dist. Atty., and T. Michael Sutton, Asst. Dist. Atty., Beaumont, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

A jury convicted the appellant of aggravated robbery, V.T.C.A., Penal Code, Section 29.03(a)(2), and assessed punishment at fifteen years imprisonment in the Texas Department of Corrections. We affirm.

Appellant urges six grounds of error.

In his first ground of error, the appellant complains of improper jury argument, “wherein the district attorney stated that the defendant took the drugs for his own use.” That portion is set out below:

“What’s the third element of theft? With the intent to keep the property and not give it back to the owner. Listen to me. You would have to be the twelve most gullible people that ever walked into a courtroom and sat in a jury box if you would believe or have any scintilla of belief that either (co-defendant) or Henry intended to bring back that money or drugs. They took it for their use. They took it for their benefit.”

The appellant and co-defendant committed robbery in a pharmacy in Port Arthur. The co-defendant took the drugs and the appellant the money. They acted in concert. Clearly, the State’s argument was not an attempt to suggest that the appellant took the drugs for his own use; but, reasonably to sum up the evidence, and to logically conclude, as.an element of aggravated robbery, that the appellant committed theft with the intent to maintain control of the property. Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973); Griffin v. State, 554 S.W.2d 688 (Tex.Cr.App.1977); and Williams v. State, 535 S.W.2d 637 (Tex.Cr.App.1976).

Ground of error one is overruled.

In grounds of error two and three, the appellant contends that the trial court erred in not striking the testimony of the State’s reputation witnesses Curiy and Hamilton, as such was based upon personal knowledge only.

DEA' Agent Curry testified that his knowledge of the appellant’s reputation was based on his “personal investigation and information received from police officers in Port Arthur.” DPS Narcotics Agent Hamilton based his opinion on “ . conversations with other officers and the news media.”

It is well known that reputation testimony is to be based on hearsay. It is admissible as an exception to the hearsay rule. “The reasons for this exception are two:

“1) The inherent difficulty of obtaining any satisfactory evidence of the desired fact other than proof of tradition and reputation creates a necessity for this evidence.
“2) The fact that a prolonged observation and discussion of certain matters of general interest by a whole community will sift possible errors and bring the result down to us in a fairly trustworthy form furnishes a guarantee of correctness.”

[2 C. McCormick and R. Ray, Tex.Evidence, Secs. 1321 and 1492 (2nd Ed. 1956)].

Under the record, the witnesses were shown to be qualified to express their opinions that the appellant’s reputation as a law abiding citizen was bad. Sanchez v. State, 398 S.W.2d 117 (Tex.Cr.App.1965); Mitchell v. State, 544 S.W.2d 927 (Tex.Cr.App.1977).

Grounds of error two and three are overruled.

In the fourth and fifth grounds' of error, the appellant complains of the sustaining of the State’s objection of his inquiry “as to which of the two defendants admitted a narcotics habit,” and “which requested medical treatment in the form of methadone doses.” It is his apparent contention that he was precluded from introducing mitigating evidence at the punishment stage. From the record, however, it appears that the appellant was not denied the opportunity to demonstrate that he was not a drug addict; rather, he was not permitted on grounds of materiality to show that his co-defendant was a drug addict, as reflected by the following:

“DEFENSE ATTORNEY (Mr. Jamail): Well, subsequent to their being taken to jail in Port Arthur, didn’t the (co-defendant) file a bunch of motions or papers in your court?
“DISTRICT ATTORNEY (Mr. Hanna): I object to the question. It is totally immaterial.
“COURT: The (co-defendant’s) case is not before this jury.
“MR.- JAMAIL: (Co-defendant) is the one who took the narcotics out of the drugstore and I feel it is very relevant. They are the ones that brought it up and bringing (sic) narcotics up all day long.
“COURT: Objection sustained.
“MR. JAMAIL: Were any papers filed in your court by either Mr. Henry or (co-defendant).
“MR. HANNA: I am going to object. As far as (co-defendant) is concerned, that’s the same question. (Emphasis added)
“COURT: That objection is sustained.
“MR. JAMAIL: Did Mr. Henry seek any kind of treatment for narcotics addiction while he was being held at the jail at Port Arthur through you? (Emphasis added)
“A.. No sir.” (Emphasis added)

The evidence pertaining to appellant’s co-defendant’s drug addiction was properly excluded as irrelevant.

No error is shown.

Grounds of error four and five are overruled.

Finally, in ground of error six, the appellant asserts the cumulative error in grounds one through five. We have found no such errors. See Love v. State, 533 S.W.2d 6 (Tex.Cr.App.1976); and Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App.1971).

Ground of error six is overruled.

The judgment is affirmed.


author: TOM G. DAVIS, Judge.

text:
    Frank SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 57164.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 14, 1978.
    Edith Roberts, Austin, for appellant.
    Ronald Earle, Dist. Atty., and Bill White, Asst. Dist. Atty., Austin, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

This is an appeal from a final judgment forfeiting an appearance bond.

The appellant was surety on a bond for Phillip Sanchez in the amount of $5,000. A judgment nisi forfeiting the bond was entered in the 167th District Court of Travis County. A final judgment was entered against Phillip Sanchez as principal and Frank Smith as surety.

Appellant contends that'there is a fatal variance between the bond (State’s Exhibit 3A) and the judgment nisi (State’s Exhibit 4A). State’s Exhibit 3A is an appearance bond on which Phillip Sanchez is principal and Frank Smith is surety in the amount of $5,000. The bond is dated October 18,1976. The judgment nisi states that the principal and surety entered into the bond on October 18, 1977. The judgment nisi further reflects that the bond was forfeited on January 27, 1977, obviously a date prior to October 18, 1977.

The record reflects that the appellant made a timely objection in the trial court that the date of the bond as “October 18, 1977,” in the judgment nisi was an impossible date. This objection was overruled and the appearance bond and the judgment nisi were admitted into evidence. Although, as the State points out, Article 22.12, V.A.C. C.P., provides that the judgment nisi may be amended under the direction of the court, no such amendment was made in this case. In LeMier v. State, 489 S.W.2d 898, this Court held that an amended judgment nisi which corrected a variance of this type would support a final judgment of forfeiture. Here, however, no such correction was made, although the defect was pointed out in the trial court in a timely manner by the appellant. The final judgment of forfeiture carries forward the incorrect date contained in the judgment nisi.

Thus, while the bond shows to have been executed on October 18,1976, the judgment nisi and the final judgment recite that the bond was dated October 18, 1977. It follows that the proof is at variance with and will not support the judgment nisi and final judgment.

The judgment is reversed and the cause remanded.


author: PHILLIPS, Judge.

text:
    John A. POLLARD, Appellant, v. The STATE of Texas, Appellee.
    No. 57945.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 14, 1978.
    James H. Kreimeyer, Belton, for appellant.
    Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before DOUGLAS, PHILLIPS, and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction of aggravated kidnapping on a plea of guilty before the jury. Punishment was assessed at 50 years.

Appellant’s single ground of error is that the indictment is fundamentally defective for failing to allege the specific manner in which the abduction was effected. No motion to quash was filed or presented to the trial court for consideration. The indictment alleges, in pertinent part:

“. . . that JOHN A. POLLARD . , on or about the 6th day of July A.D. 1975, ... did then and there intentionally and knowingly abduct another person, Diane R. Smith, with the intent to violate and abuse Diane R. Smith sexually . . . .”

V.T.C.A., Penal Code, Section 20.04, Aggravated Kidnapping, provides as follows:

“(a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
* * * * # *
(4) inflict bodily injury on him or violate or abuse him sexually; . . .”

V.T.C.A., Penal Code, Section 20.01(2) defining “abduct” reads as follows:

“(2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by:
(A) secreting or holding him in a place where he is not likely to be found; or
(B) using or threatening to use deadly force.”

As we understand appellant’s contention, his complaint is one of insufficient notice to apprise him “of which means the State is relying upon as a basis for the abduction.” With respect to appellant’s contention, Article 21.02, V.A.C.C.P., sets forth the minimum requirements for sufficient indictments in this State. The provision relevant to the issue raised by appellant is Subsection 7 which requires that “[T]he offense must be set forth in plain and intelligible words.” Article 21.11, V.A.C.C.P., provides as follows:

“An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the. defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; and in no case are the words ‘force and arms’ or ‘contrary to the form of the statute’ necessary.”

Article 21.17, Y.A.C.C.P., provides as follows:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

Appellant’s ground of error is one which “relates simply to the convenience of the defendant in making his defense” (Melley v. State, 93 Tex.Cr.R. 522, 248 S.W. 367, cited in American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W .2d 598 at 604) and “if he goes to trial without raising any such objection, he may not urge them for the first time thereafter, since it must be presumed he has found the charge sufficient to his own satisfaction. Only if the defect be of such a degree as to charge no offense against the law, and thereby be void, will the exception to the substance be considered for the first time on appeal . . Id. We have repeatedly stated that indictments which allege an offense in the terms of the applicable penal statute are sufficient. See Rowl v. State, Tex.Cr.App., 547 S.W.2d 612; Baldwin v. State, Tex.Cr.App., 538 S.W.2d 109. There is additional support in the express provisions of Article 21.17, V.A.C. C.P., which, by permitting a variation in the language used to charge the offense (provided that language has the same meaning or sense as the statutory language), underscores the appropriateness of utilizing the statutory language alone. The indictment before us does reflect an allegation “that an offense against the law was committed by [the appellant]; . . .” Article 27.-08(1), V.A.C.C.P.

Appellant’s purported contention that he lacked sufficient notice of the charges against him is further demonstrated to lack merit in light of the record which reflects that appellant was previously tried on this same charge before a jury. This historical fact demonstrates that appellant knew what the evidence would show in his prosecution and, therefore, the theory by which the State would contend that appellant abducted the victim. See Pollard v. State, Tex.Cr.App., 552 S.W.2d 475.

Finally, the clear import of our decision in Carpenter v. State, Tex.Cr.App., 551 S.W.2d 724, is that an indictment for aggravated kidnapping is sufficient if it either (1) alleges that the defendant “abducted” the victim or (2) it sets forth in lieu of the word “abduct” the statutory definition given to it by V.T.C.A., Penal Code, Section 20.01(2)(A) or (B).

We therefore hold that the instant indictment, absent a motion to quash, is not fundamentally defective.

The judgment is affirmed.


author: YOUNG, Justice.

text:
    CITY OF CORPUS CHRISTI, Appellant, v. Ruth M. JUERGENS et al., Appellees.
    No. 1180.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 30, 1977.
    Rehearing Denied Aug. 31, 1977.
    Gerald L. Benadum, R. W. Coffin, Asst. City Attys., Corpus Christi, for appellant.
    Guy H. Allison, Jack K. Dahlberg, Jr., Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This is an eminent domain proceeding brought by the City of Corpus Christi against Ruth M. Juergens. The appellant, City, brought suit against the appellee, Mrs. Juergens, to condemn title and possession of 13,000 square feet of undeveloped North Beach bayfront property. The land is to be used as a public park and is being developed under the Corpus Christi Beach Park Project.

Trial was to a jury on the issue of the market value of the subject land. The jury found that value to be $52,390.00. The trial court rendered judgment against the City for that amount. The City has perfected its appeal basing its points of error on legal and factual insufficiency of the evidence to support the judgment for the property taken and the trial court’s failure to grant remittitur.

Since all of appellant’s points are related to the evidence as to the value of the property taken, it is necessary for us to examine the testimony on value. Four witnesses testified on the market value of the subject property, two for the City and two for Mrs. Juergens. The State’s expert witnesses, Mr. Carr and Mr. Dorsey, set the value at $14,950.00 and $22,750.00 respectively. Mr. Clower, an expert witness called by Mrs. Juergens, set the value at $32,500.00. All of these estimates were based upon comparable sales in the area. The experts, however, did not agree on which area sales should be used to establish the market value of Mrs. Juergens’ land. Mrs. Juergens testified that in her opinion the land was worth $100,000.00. So the jury finding was more than the opinion of value of any of the three experts but less than that of the owner.

The City here challenges the qualifications of Mrs. Juergens to testify concerning the value of her property, although it made no such challenge in the trial court. The City contends that Mrs. Juergens’ testimony as to market value is a mere naked conclusion unsupported by any factual basis and therefore has no probative force and will not support a jury finding. In this regard, the City cites Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956); City of Houston v. Lakewood Estates, Inc., 429 S.W.2d 938 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref’d n. r. e.). As a general rule, however, a landowner may testify to the value of his land if he knows the market value on or about the date of the taking. And if the condemnor fails to object in the trial court to a witness’ competency, he waives the witness’ qualifications. State v. Deknisch, 437 S.W.2d 46 (Tex.Civ.App.— Corpus Christi 1968, no writ) and cases cited therein. Also, the fact that the condemnor on cross-examination elicits doubt and uncertainty from the condemnee only goes to the weight of the condemnee’s testimony with the jury. State v. Rankin, 445 S.W.2d 581 (Tex.Civ.App.—Corpus Christi 1969, no writ).

Mrs. Juergens testified that she knew the market value of her land as of the date of the taking. She testified that the value of the land taken was $100,000.00. She based this estimate of value on the sale price of the Breakers Hotel site and a land exchange deal offered by Forrest Allen and Company. The Breakers Hotel was a much larger tract of land south of Mrs. Juergens’ property and fronting on the bay. That property was sold for $3.00 per square foot. To arrive at her value Mrs. Juergens used this figure and the real estate valuation concept which gives that portion of a tract of land situated on the water a greater value than the remaining land. The property of Mrs. Juergens comprised two unimproved lots both of which fronted on the bay resulting in a two lot frontage with a one lot depth. Some of the other experts confirmed this method of increased evaluation of the front part of the property. Based on this theory Mrs. Juergens allotted one-half of the purchase price of the Breakers Hotel to the first one-third of the property fronting on the bay. The purchase price of the Breakers’ property was $500,-000.00.

Mrs. Juergens also testified, without objection that in the Spring of 1973 she had been offered in trade for her land a three bedroom, two bath condominium unit by Forrest Allen and Company. She said the condominium had a value of $58,500.00. Mrs. Juergens had agreed to this deal but it was not closed because the Company could not get the City’s permission to block off a street. In connection with this transaction Mrs. Juergens testified to the tax benefits she would have received. With a trade there would be no tax liability. There could be on a cash sale. All of the experts testifying agreed that highest and best use of this property was as a condominium and that there was a tax advantage in trading the property rather than selling it for cash.

Further corroboration of Mrs. Juergens testimony can be found in the testimony of the three experts. Each expert indicated that the value of a small tract of land would be higher per square foot than that of a similar larger tract. This supported Mrs. Juergens’ testimony in making a comparative valuation between her property and the Breakers Hotel site. The experts also testified that there was an upward trend in property prices which required an upward adjustment of value when determining market value of property.

It is apparent, therefore, that Mrs. Juer-gens knew the value of her land, the market value at the date of taking and the value of land in the area. State v. Dehnisch, supra, and cases cited therein. Appellant’s contention that there was no evidence to support the jury findings is overruled.

Appellant also contends that the jury’s answer is so against the great weight and preponderance of the evidence as to be unjust. In resolving this contention it is necessary that this Court consider and weigh all of the evidence in the record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). After considering the entire record if we determine that the jury’s finding clearly appears to be wrong, it is our duty to set it aside. State v. Dehnisch, supra. Royal v. Cameron, 382 S.W.2d 335 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.). It is also a well settled rule that the jury is the judge of the credibility of the witnesses and the weight to be given their testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); State v. Dehnisch, supra.

We have reviewed the entire record and are satisfied that there is ample evidence to support the jury’s finding of $52,390.00, and that this value is clearly within the limits of the testimony within the record. And we believe that the damages are not excessive. We will not, therefore, substitute our judgment of value for that of the jury. State v. Dehnisch, supra. Tarrant County Water Control & Improvement District No. 1 v. Hubbard, 426 S.W.2d 330 (Tex.Civ.App.—Tyler 1968, rev’d on other grounds, 433 S.W.2d 681). Appellant’s points are all overruled.

The judgment of the trial court is affirmed.


author: PRESLAR, Chief Judge.

text:
    Brunson D. MOORE, Appellant, v. EL PASO COMMISSIONERS COURT et al., Appellees.
    No. 6651.
    Court of Civil Appeals of Texas, El Paso.
    March 29, 1978.
    Rehearing Denied May 17, 1978.

      Howell & Fields, Mark F. Howell, Larry G. Fields, El Paso, for appellant.
    George N. Rodriguez, Jr., County Atty., Mike McDonald, Asst. County Atty., El Paso, for appellees.
   OPINION

PRESLAR, Chief Judge.

Appellant brought this suit to recover the emoluments of office as Justice of the Peace, Precinct No. 1, of El Paso County. Both parties moved for summary judgment; the trial Court granted the motion of the Defendants/Appellees and denied the motion of Plaintiff/Appellant. We affirm.

Appellant, an incumbent Justice of the Peace, filed as a candidate for office in the 1972 Democratic Primary and was elected as the Party’s nominee at the Primary Election in May of 1972. By order dated July 24, 1972, the Commissioners Court of El Paso County abolished the then existing Justice of the Peace and Constable precincts and created new ones. The implementation of that order was enjoined by Appellant and others. On December 27, 1972, the Commissioners Court of El Paso County abolished, effective December 31, 1972, all of the then existing Justice of the Peace and Constable precincts numbered one through eight, and created six new precincts effective January 1, 1973. The Court, on the same day, entered its order that as of January 1, 1973, there would be vacancies in the newly created Justice of the Peace offices and the offices of Constables. Those vacancies were then filled by appointment and Appellant was not named as Justice of the Peace. He then brought this suit to recover the benefits of the office of Justice of the Peace to which he was elected in the General Election of November, 1972.

This cause of action must fail under this Court’s opinion in Telles v. Sample, 500 S.W.2d 677 (1973, writ ref’d n. r. e.). That case is directly in point and controlling here, as it involved the same December 27, 1972 order of the Commissioners Court. It was brought by Telles, a Constable, who was not appointed in one of the new precincts and, like Appellant, sued for the emoluments of'office. The trial Court denied the plaintiff any relief, this Court affirmed, and the Supreme Court denied the application for writ of error with the notation “no reversible error.” There is nothing about the case before us which distinguishes it from Telles v. Sample, supra, to the extent that there should be a different result.

The judgment of the trial Court is affirmed.


author: HUGHES, Justice.

text:
    Floyd GRAY, Relator, v. Estil VANCE, Jr., Chairman, Tarrant County Democratic Executive Committee, and Frank Dawson, Respondents.
    No. 18031.
    Court of Civil Appeals of Texas, Fort Worth.
    March 30, 1978.

      Charles Dickens, Fort Worth, for appellant.
    Estil Vance, Jr., pro se.
    Frank Dawson, pro se.
   OPINION

HUGHES, Justice.

This is an original proceeding brought to this court in the form of a petition for a writ of mandamus. In it, Floyd Gray, the relator, seeks to compel Estil Vance, Jr., Chairman, Tarrant County Democratic Executive Committee, to omit and delete the name of Frank Dawson as a candidate for the office of Justice of the Peace, Precinct 3, Place 2, Tarrant County, Texas, on the official ballot for the Democratic Primary on May 6, 1978.

Dawson filed application for nomination to such office with Vance on February 6, 1978, by submitting signature petitions m lieu of filing fee as per Article 13.08(d), Texas Election Code.

It is undisputed that: there were 168 names on the petitions; 132 names were required for this precinct; four of the signatures did not show signer’s current voter registration number; 61 did not show signer’s home city; three did not show signer’s street address.

The only issue before us is whether the petitions are sufficient on their face under Article 13.08(d), Texas Election Code, which reads:

“The petition must show the following information with respect to each signer: His address (including his street address if residing in a city, and his rural route address if not residing in a city), his current voter registration certificate number and the date of signing.”

Compliance with such “must” in Article 13.08(d) has been held to be mandatory. Geiger v. DeBusk, 534 S.W.2d 437 (Tex. Civ.App.—Dallas 1976, no writ); Brown v. Walker, 377 S.W.2d 630 (Tex.1964). We hold that street addresses, current voter registration numbers and home city addresses are mandatory like filing fees paid with a check that would be paid in due course. Bryant v. Dallas County Democratic Executive Com., 451 S.W.2d 803 (Tex.Civ.App. — Dallas 1970, no writ).

The statutory purpose in requiring each signatory on a petition to list his full address and voter registration number is to allow verification if desired. Obviously verification could not be accomplished without the information mandated by the statute. The “critical time” by which such is to be shown is most certainly the “deadline” for filing the petition which, in this instance, happened to be thirty-five minutes before such deadline. Any attempt to correct the deficiencies was ineffective thereafter.

Petitioner in this original proceeding is entitled to the relief he desires — to have the name of Respondent, Dawson, removed from the official ballot for the Democratic Primary on May 6, 1978. Respondent Vance has represented that if such should be the decision of the court he would abide such without formal service of the writ.

It is accordingly ordered that a writ of mandamus issue ordering Estil Vance, Jr., Chairman, Tarrant County Democratic Executive Committee, to omit and delete the name of Frank Dawson from the ballot of the Democratic Primary to be held May 6, 1978, only in the event he has not promptly done so after publication of this opinion.