author: BROWN, Commissioner. DOUGLAS, Judge. ROBERTS, Judge

text:
    Maurice McELROY, Appellant, v. The STATE of Texas, Appellee.
    No. 49956.
    Court of Criminal Appeals of Texas.
    June 4, 1975.
    Rehearing Denied Oct. 15, 1975.
    Second Rehearing Denied Nov. 12, 1975.

      McMillan & Lewellan, Stephenville, for appellant.
    Bob Glasgow, Dist. Atty., Stephenville, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

The conviction is for aggravated assault under the new penal code; the punishment, assessed by the jury, two (2) years’ imprisonment.

Appellant and four companions were in an apartment complex parking lot, sitting on the back of a pickup, drinking. David Hale arrived and appellant and two companions got in Hale’s car. Gary Eoff approached the car with the drinks and ice and asked Hale where he wanted them. Appellant said, “Leave me alone.” Eoff again asked Hale where he wanted to put the ice and drinks and again appellant said, “Leave me alone.” Eoff told appellant he was not talking to him. Hale and another companion placed the ice on the front floorboard, while a third man put the drinks in the back seat. Appellant again told Eoff, “Leave me alone.”

While Eoff was handing the ice and beverages to the men in the car, appellant got out and placed his drink on the top of the car. Appellant then struck at Eoff twice with a knife. Eoff ran from appellant and discovered that his shirt was torn and that his chest was cut.

In his first ground of error, appellant contends the court erred in overruling his motion to quash the indictment. The indictment reads as follows:

“. . . did then and there unlawfully, intentionally and knowingly use a deadly weapon, to-wit: a knife, that in the manner of its use and intended use was capable of causing death or serious bodily injury, and did then and there cause bodily injury to Gary Allen Eoff, by cutting him with said knife.”

Appellant argues that the indictment fails to charge that he committed an assault. It is appellant’s position that alleging the use of a weapon which results in serious bodily injury is not sufficient.

An assault is defined as follows:

“A person commits an offense if he intentionally, knowingly, or recklessly causes bodily injury to another, . . . ” V.T. C.A., Penal Code, Sec. 22.01(a)(1).

The assault becomes aggravated if the assailant “uses a deadly weapon.” V.T. C.A., Penal Code, Sec. 22.02(a)(3). See, also, V.T.C.A., Penal Code, Sec. 1.07(a)(ll)(B) which defines deadly weapons as follows:

“(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

The indictment follows the language of both statutes here involved. These statutes contain the elements necessary for the commission of the offense. Under these circumstances, an indictment which tracks the statutory language describing the offense is sufficient. White v. State, Tex.Cr.App., 505 S.W.2d 258; Ames v. State, Tex.Cr.App., 499 S.W.2d 110. No error is shown.

Appellant’s second ground of error is that the court failed to charge the jury on simple assault. Appellant argues that such a charge was necessary because a knife is not a deadly weapon per se. Appellant relies on Matheson v. State, Tex.Cr.App., 508 S.W.2d 77, where this Court held that in a murder prosecution, if the weapon used is not deadly per se and the issue of lack of intent to kill is raised by the evidence, a charge on aggravated assault is required.

Appellant’s contention is without merit. Although a pocket knife is not a deadly weapon per se, Abels v. State, Tex.Cr.App., 489 S.W.2d 910, it can certainly qualify as such through the manner of its use. V.T.C.A., Penal Code, Sec. 1.07(a)(ll), (13).

Further, although Matheson dealt with the deadly weapon question, the problem actually addressed was whether or not the issue of lack of intent to kill had been raised by the evidence. Here we face the same problem. Has appellant raised the issue of simple assault so as to be entitled to an appropriate charge?

Dr. Terrell, who treated the injury, testified the weapon used by appellant was capable of causing death and could be a deadly weapon through the manner of its use. He further testified that the stab wound was six inches long, penetrated to the cartilage of the rib cage, and required approximately thirty sutures to close it.

Appellant offered no evidence that the assault was not committed, or that it was nor committed with a knife, or that the knife was not used in such a manner as to render it a deadly weapon.

The court did not err in denying appellant’s requested charge on simple assault, for the same was not raised by the evidence. McBrayer v. State, Tex.Cr.App., 504 S.W.2d 445.

In his third ground of error, appellant complains that the court’s charge is a comment on the weight of the evidence in that it instructs the jury that the knife is a deadly weapon, a fact issue which the jury must decide. The pertinent part of the charge reads as follows:

“Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Maurice McElroy, on or about the 26th day of April, 1974, in the County of Erath, and State of Texas, as alleged in the indictment, did then and there intentionally or knowingly use a deadly weapon, to-wit: a knife, that in the manner of its use was capable of causing death or serious bodily injury, and did then and there cause bodily injury to Gary Allen Eoff, by cutting him with said knife, you will find the defendant guilty of the offense of aggravated assault and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict, ‘Not Guilty.’ ”

The charge must be viewed as a whole, its parts cannot be challenged and reviewed individually. Mathis v. State, Tex.Cr.App., 504 S.W.2d 448. In a preceding paragraph of the charge we find the definition of a deadly weapon in accordance with Sec. 1.07(a)(ll), V.T.C.A., Penal Code. Construed in light of this instruction, the paragraph complained of does not declare that the knife used was a deadly weapon. The court charges the jury that they must find beyond a reasonable doubt that a deadly weapon was used; then restricts the jury by repeating the definition thereof and applying it to the instrument used. No error is shown.

In his fourth ground of error, appellant contends the trial court erred in failing to define “serious bodily injury” as that term is used in the definition of deadly weapon. The court’s charge contains the following definition:

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

Appellant’s contention is without merit.

In his fifth ground of error, appellant contends the court erred in charging that voluntary intoxication does not constitute a defense to the commission of crime. Appellant argues that intoxication could bear on the ability to form the intent to commit an act, and the jury should be so instructed.

The jury was instructed in accordance with Sec. 8.04, V.T.C.A., Penal Code. No error is shown.

In his sixth ground of error, appellant contends that the court erred in permitting the State to introduce a previous conviction at the punishment stage, and denying appellant the right to show a subsequent court order setting aside the probated sentence and dismissing the indictment.

In Bermudez v. State, Tex.Cr.App., 504 S.W.2d 868, we held that where a defendant questioned a records clerk about an arrest record in an attempt to show that the defendant had had only limited contact with the police, the State was properly permitted to introduce the entire contents of the arrest and investigation reports involving the defendant. Under this holding, and the provision of Art. 38.24, Vernon’s Ann.C. C.P., the action of the trial court was clearly error.

Appellant did not apply for probation, and the range of punishment for this offense is two to ten years, with the possibility of a $5,000 fine. Since appellant’s punishment in this instance was the least possible assessment, we cannot believe that he was harmed by the trial court’s action. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In his final ground of error, appellant contends that the court erred in allowing the prosecutor to cross-examine appellant’s character witnesses in a “have you heard” fashion about a charge filed against appellant in 1970 because it was not shown that a conviction resulted in that instance.

“Have you heard” questions, which confront a character witness with acts inconsistent with the reputation testified to, are not objectionable on the grounds that the conduct referred to did not result in a conviction. Patrida v. State, Tex.Cr.App., 506 S.W.2d 209; Gaines v. State, Tex.Cr.App., 481 S.W.2d 835.

The judgment is affirmed.

Opinion approved by the Court.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

Judge Brown in the original opinion correctly disposed of the case when he wrote that aggravated assault was alleged in two ways but in view of the dissent the following will be noted.

Section 22.01(a)(1), V.T.C.A. Penal Code, provides that a person commits an offense (of assault) if he “intentionally, knowingly, or recklessly, causes bodily injury to another.”

Section 22.02(a)(3), V.T.C.A. Penal Code, provides that the assault becomes aggravated if the assailant uses a deadly weapon.

The indictment alleges that appellant “did then and there unlawfully, intentionally and knowingly use a deadly weapon. .” It also alleges that appellant “. . . did then and there cause bodily injury to Gary Allen Eoff, by cutting him with said knife. . . .”

The dissent would hold that intentionally and knowingly was not alleged in connection with the use of the knife or bodily injury.

A reading of that portion of the indictment set out in the dissent is enough in itself to see that it alleges that appellant knowingly and intentionally assaulted Eoff with a deadly weapon and caused bodily injury to Eoff by cutting him with a knife. The indictment alleges that appellant

“. . . did then and there unlawfully, intentionally and knowingly use a deadly weapon, to-wit: a knife, that in the manner of its use and intended use was capable of causing death or serious bodily injury, and did then and there cause bodily injury to Gary Allen Eoff, by cutting him with said knife.”

A similar contention by the dissent was urged in a dissent in Clark v. State, Tex.Cr.App., 527 S.W.2d 292 (1975), and was rejected. That case held that an indictment should be construed as a whole. In the present case only one sentence has to be construed.

Williams v. State, 524 S.W.2d 73 (Tex.Cr.App.1975), is cited by the dissent as being squarely in point. It is not in point and is not applicable. Williams was convicted for aggravated robbery. There the indictment alleged that Williams used a deadly weapon in committing theft. For the offense to have been aggravated robbery, one of two other elements was required. The indictment did not allege either additional element. Without setting out the other elements in full, one of the following was required: (1) that the defendant caused bodily injury to another, or (2) that he threatened or placed another in fear of imminent bodily injury or death. Neither element of the offense of aggravated robbery was alleged and for that reason the conviction was reversed.

The appellant’s motion for rehearing is overruled.

ROBERTS, Judge

(dissenting).

In his Motion for Rehearing, appellant again attacks the sufficiency of the indictment. The majority overrule his motion in a written opinion, but our attention has been directed to the recent case of Williams v. State, 524 S.W.2d 73 (Tex.Cr.App.1975) which would appear to me to dictate a result different from that reached by us on original submission.

Appellant was convicted of aggravated assault under the new Penal Code. His punishment was assessed by the jury at two years’ imprisonment.

Appellant and four companions were in an apartment complex parking lot, sitting on the back of a pickup, drinking. David Hale arrived and appellant and two companions got in Hale’s car. Gary Eoff approached the car with the drinks and ice and asked Hale where he wanted them. Appellant said, “Leave me alone.” Eoff again asked Hale where he wanted to put the ice and drinks and again appellant said, “Leave me alone.” Eoff told appellant he was not talking to him. Hale and another companion placed the ice on the front floorboard, while a third man put the drinks in the back seat. Appellant again told Eoff, “Leave me alone.”

While Eoff was handing the ice and beverages to the men in the car, appellant got out and placed his drink on the top of the car. Appellant then struck at Eoff twice with a knife. Eoff ran from appellant and discovered that his shirt was torn and that his chest was cut.

In his Motion for Rehearing, appellant vigorously reurges his contention that the trial court erred in overruling his motion to quash the indictment. The pertinent portions of the indictment read as follows:

“. . . did then and there unlawfully, intentionally and knowingly use a deadly weapon, to-wit: a knife, that in the manner of its use and intended use was capable of causing death or serious bodily injury, and did then and there cause bodily injury to Gary Allen Eoff, by cutting him with said knife.”

Appellant argues that the requisite mental culpability for assault was not alleged in the indictment. He contends that alleging the unlawful use of a deadly weapon is not sufficient. An assault is defined as follows:

“A person commits an offense if he intentionally, knowingly, or recklessly causes bodily injury to another, . . . ” V.T. C.A., Penal Code, Sec. 22.01(a)(1).

To be guilty of aggravated assault,

“A person commits an offense if he commits assault as defined in Section 22.01 of this code and he . uses a deadly weapon.” V.T.C.A., Penal Code, Sec. 22.-02(a)(3).

The indictment properly alleged the use of a deadly weapon, V.T.C.A., Penal Code, Sec. 1.07(a)(ll)(B), but did not include the requisite allegations of culpability for an assault.

The example is made of a surgeon who uses a scalpel, which, in the manner of its use and intended use, is capable of causing death or serious bodily injury. Yet, should his patient suffer serious bodily injury on the operating table, the surgeon would not be guilty of aggravated assault since he did not “intentionally, knowingly, or recklessly” cause the injury. Yet the indictment in the instant case would support a conviction of the surgeon for aggravated assault upon proof of such facts.

The recent case of Williams v. State, 524 S.W.2d 73 (Tex.Cr.App.1975) is squarely on point. It involved a conviction for aggravated robbery wherein the indictment alleged as follows:

“. . . on or about the 5TH day of JANUARY, A.D., 1974, ROGER WILLIAMS, hereinafter called defendant, did then and there intentionally and knowingly use and exhibit a deadly weapon namely: A PISTOL, to DALE STEVENSON, hereinafter called complainant, while the same defendant was in the act of committing theft of property, namely: A WALLET, from said complainant, the owner of said property, without the effective consent of the said complainant, and said acts were committed by the said defendant with the intent then and there to obtain and maintain control of the said property; . . . ”

V.T.C.A., Penal Code, Sec. 29.03 provides that a person must first commit robbery before he can be convicted of aggravated robbery. And Sec. 29.02 of the new Penal Code defines “robbery” as follows:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”

It will be seen that the indictment in Williams properly alleged the commission of a theft and the use of a deadly weapon, but omitted to allege the intentional or knowing threats or causation of bodily injury required for robbery. This defect required reversal and dismissal of the indictment.

Likewise, in the case at bar, the indictment omits to allege all of the constituent elements of the assault which is claimed to be aggravated. Nor does the clause, “. . .a knife, that in the manner of its use and intended use was capable of causing death or serious bodily injury, .”, which distinguishes the instant case from Williams, supra, provide the needed allegations of culpability. The clause obviously relates to the type of weapon used. Moreover, the “manner of its use and intended use” refers only to the capabilities of the weapon, not to the actual use to which it was put.

For examples of indictments properly alleging aggravated assault, see Morrison and Blackwell, New Penal Code Forms, Sec. 22.02A, p. 22 and 2 Texas Ann.Penal Stat. with Forms (Branch’s 3rd Ed.), Sec. 22.02, p. 186.

For the foregoing reasons, I would grant appellant’s Motion for Rehearing and order the judgment reversed and the indictment dismissed.

ODOM, J., joins in this dissent.


source: Caselaw Access Project

author: ROBERTS, Judge. DOUGLAS, Judge

license: Public Domain

text:
    Stanley Joe GARRISON, Appellant, v. The STATE of Texas, Appellee.
    No. 49766.
    Court of Criminal Appeals of Texas.
    Oct. 15, 1975.
    Rehearing Denied Nov. 12, 1975.

      Leonard C. Kahn, Houston, for appellant.
    Robert 0. Smith, Dist. Atty., David Sheppard, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This case is before us pursuant to the grant of an out-of-time appeal by the Honorable Tom Blackwell, Judge of the 167th District Court of Travis County on May 30, 1974. On original submission, the appeal was dismissed in an opinion by Commissioner Dally on January 15, 1975 because of the absence from the record of any evidence justifying the grant of the out-of-time appeal. Subsequently, this Court received a supplemental transcript, and, pursuant to motions by appellant and the State, ordered the appeal reinstated on June 4, 1975. The venue in this case was changed from Hays to Travis County.

The appeal is from a conviction for murder with malice. Trial was before a jury and the jury assessed punishment at life. The offense took place on November 1,1968 and the verdict of guilty was returned on October 16, 1969.

The evidence showed that appellant and his wife, the deceased, operated a restaurant in San Marcos and lived in a house trailer behind the restaurant. The couple was having marital difficulties and appellant had told deceased’s mother that he was going to kill his wife, whereupon deceased’s father came to the house trailer the next day and removed a .45 caliber pistol therefrom. Later that date, appellant purchased ammunition and a .22 caliber pistol.

On the night of the killing two days later, deceased and her cousin entered the house trailer where appellant was in an angry state of mind. Deceased’s cousin testified she heard deceased cry “Don’t, Joe” and then heard gunfire. She hastily left the house trailer.

Shortly thereafter, appellant admitted both to restaurant employees and to officers arriving on the scene that he had killed his wife. The defense relied heavily on an alleged affair the deceased was having with another restaurant employee.

Appellant complains of prejudicial un-sworn hearsay testimony injected into the case by the prosecutor during final arguments before the jury at the punishment stage of the trial. The argument complained of went as follows:

“She [appellant’s counsel] knew and he knew that we couldn’t ask this Defendant, when they put him on the stand this morning, if it was not true that just two or three months before he executed Gloria Jean, that he had brought one of his ex-wives into their trailer in San Marcos, Texas, and forced Gloria Jean to entertain that ex-wife. . . .”

Appellant objected to the prosecutor’s making up facts “that are not in evidence” and which were “outside of the record.” The prosecutor contended that his argument had been invited and appellant’s objection was overruled. The prosecutor continued:

“They knew that we could not ask him if it was not true that many times he had committed acts of adultery against Gloria Jean Garrison, and then bragged about it.”

At this point, appellant obtained a running objection to the “testimony” of the prosecutor. The prosecutor argued further:

“They knew that we could not ask him if it was not true that time and time again, he had tried to molest young waitresses or young employees working at the cafe in San Marcos. They knew that we could not ask him if it wasn’t true that on more than one occasion, he had tried to molest his own wife’s first cousin, and she wanted you to believe that we couldn’t ask anything bad about him when he took the witness stand. They knew when they put him on the stand.
“. . . and forced his wife to entertain her; if it wasn’t true that he had committed adultery many times against his wife, and then bragged about it; if it wasn’t true that he had even gone to Mexico with his father-in-law Paul Guerrero, and while in either Monterrey or Tampico, Mexico, having taken a strumpet out, came back and bragged to his own father-in-law how good it was; that we couldn’t ask him if it wasn’t true that time and time again, he had tried to molest young female employees of the cafe; that if it wasn’t true that on more than one occasion, he had even tried to molest his wife’s first cousin.”

It has been suggested that appellant’s objection was insufficient to preserve his ground of error on appeal. With this we cannot agree. A ground of error alleging prejudicial argument concerning extraneous offenses was held not to be before this Court when the objection at trial was that the prosecutor was “going behind the testimony of this witness other than the way it was presented.” Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974). And a defense attorney’s objection “to any testimony from [the prosecutor] about how well I know [the defendant]” was held to be insufficient to preserve the claim on appeal that the prosecutor’s argument implied that defense counsel knew his client to be guilty. Campbell v. State, 492 S.W.2d 956 (Tex.Cr.App.1973). The case of Clayton v. State, 502 S.W.2d 755 (Tex.Cr.App.1973) is instructive here. In that case, defense counsel made a very general objection to the prosecutor’s argument that he knew in his heart that defendant was guilty. This Court held that the argument was grossly improper and that defendant’s timely, though general, objection was sufficient to apprise the trial court of the alleged error.

The objections in Jackson and Campbell were too vague to apprise the trial judge of the error urged on appeal. In the case at hand, however, it is hard to see how counsel could have been much more specific in his first objection to the argument. And the error complained of was manifestly obvious as in Clayton. Counsel then insured that his objections ran to all subsequent prosecu-torial arguments in that vein.

In its brief, the State admits that the prosecutor’s argument was outside the record. Since appellant’s objection was sufficient, the only question remaining is whether or not the argument was "invited by the following argument made earlier by defense counsel:

“Now, a few minutes ago, you saw Joe Garrison take the stand and swear that he had never committed a felony in this or any other state. That showed you that he was eligible for probation. You also saw Mr. Huttash and Mr. Barber sit here, and when the Judge asked them if they wanted to ask any questions or present any evidence, they said no.
“Now, sometimes lawyers in the courtroom think this is routine and think everybody understands what was happening. In most cases, they don’t, and I don’t think you understood what was happening. At that point, if the State knew anything about Joe Garrison that was bad, they would present it, and could have opened it and told you exactly why he should not be granted probation, what previous crimes he had committed. They said nothing.” (Emphasis added)

It is true that defense argument which goes outside the record will permit prosecutorial argument outside the record in response. Reynolds v. State, 505 S.W.2d 265 (Tex.Cr.App.1974). But the cases give little indication of the point at which prose-cutorial argument exceeds the invitation of defense counsel’s argument. However, a review of the case law suggests an emerging pattern.

In the case of Pounds v. State, 89 Tex.Cr.R. 273, 230 S.W. 683, 688 (1921), the defendant’s counsel had argued that, if “defendant had anything against him, don’t you know the district attorney would have brought it out” (emphasis added). This argument bears a strong similarity to defense counsel’s argument in the case at hand. In Pounds, however, the prosecuting attorney contented himself with arguing merely that every lawyer knew that the State was precluded from introducing evidence of a defendant’s bad reputation until the defendant himself put his reputation in issue. This Court held that his argument was invited by that of defense counsel. The prosecutor there did not recite specific instances of misconduct as was done in the instant case. To the same effect are the cases of Manley v. State, 69 Tex.Cr.R. 169, 153 S.W. 1138 (1913); Roberts v. State, 60 Tex.Cr.R. 111, 131 S.W. 321 (1910), and Jones v. State, 44 Tex.Cr.R. 405, 71 S.W. 962 (1903).

Similarly, in Mays v. State, 428 S.W.2d 325 (Tex.Cr.App.1968), the testimony showed that the defendant had never before been convicted of a felony and his attorney argued this fact in support of defendant’s application for probation. The prosecutor responded:

“Mr. Chitwood [defendant’s attorney] has talked about what [the witness] said about a conviction without telling you what a conviction is. A conviction means a final conviction when the appeals are over which might take years.”

The prosecutor refrained from reciting specific offenses that may not have been final convictions and this Court held that the argument was a legitimate response to defense counsel’s argument. See also Allen v. State, 513 S.W.2d 556 (Tex.Cr.App.1974).

The cases of Seay v. State, 395 S.W.2d 40 (Tex.Cr.App.1965) and Smith v. State, 506 S.W.2d 602 (Tex.Cr.App.1974) appear to control the situation at bar. In Seay, one of the defendant’s lawyers argued to the jury as follows:

“ ‘ * * * if he (the prosecutor) is fair with you, he will tell you, “We searched the life of this young man and couldn't find anything against him.” And that is why they didn’t try to show he had been convicted of a felony in Texas or some other state.’ * * * ‘just as undisputed, that this young man had lived a good life. He has never been convicted, charged, arrested for anything, had any trouble whatsoever, until this present unfortunate tragedy.’ ” (Emphasis added)

The argument in Seay resembled defense counsel’s argument in the instant case in that both asserted that the prosecution was unaware of anything bad about the respective defendants. And as in the instant case, the prosecutor in Seay responded with a list of specific instances of misbehavior, including in that case a list of arrests, charges, and corresponding dates. In reversing Seay’s conviction, a unanimous Court wrote:

“True, appellant’s counsel got outside of the record and made a statement not supported by the evidence, but we do not feel that his action in this respect licensed the prosecutor to go to the extreme ends that he did in replying. So far as we can determine, the error brought forward in this case is one of first impression in this state. We entertain no doubt that the prosecutor was given far greater latitude in replying than he was entitled to do. If the state is precluded from establishing by evidence specific prior offenses committed by an appellant or charged against an appellant in a case of this kind, and we readily agree that the state is prohibited from so doing, how then can the state adduce such proof at the time of its argument to the jury, or argue such specific offenses or charges?”

And in Smith v. State, supra, appellant’s counsel argued to the jury that they had “heard his boy testify that he (appellant) has lived a clean life for twenty-two years.” The prosecutor responded with the statement, “I have evidence to the contrary” and again proceeded to list dates and places of two other offenses which were not final convictions. In reversing, a unanimous Court said, “True there was an invitation to respond to the general statement, but the State went too far by ‘testifying’ to the specific offenses.”

It would appear, then, that the rule is that the State may respond in its argument to defense contentions that defendant has a good character, particularly when such argument by defense counsel is misleading (such as when counsel argues that defendant has no convictions); over-broad (such as when he argues that defendant has led a clean life); outside the record (such as when he contends that the evidence showed that defendant had no other arrests or charges); or an incorrect statement of the law (such as when he asserts that the prosecution didn’t have anything bad to introduce against the defendant). But, in responding, the State cannot show specific misdeeds which it could not otherwise have gotten into evidence at all. Nor should the State exceed the bounds of defense counsel’s invitation.

In the case at bar, defense counsel’s argument was somewhat incorrect and misleading. Although the State could have put on witnesses to attest to appellant’s bad reputation, it could not have elicited all of the specific misdeeds of which they were aware except in the form of “Have you heard” questions directed at character witnesses for the defendant, of which there were none. Jones v. State, 479 S.W.2d 307 (Tex.Cr.App.1972); Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971). The prosecutor thus exceeded the limits of proper invited argument in recounting all of appellant’s alleged misdeeds before the jury. The suggestion that the argument did not assert criminal misdeeds is neither convincing nor correct. Molesting and adultery were both crimes covered by the Penal Code. We cannot say with reasonable certainty that this new evidence did not affect the jury’s decision in assessing appellant’s life sentence. Lott v. State, 490 S.W.2d 600 (Tex.Cr.App.1973). The judgment must therefore be reversed.

In its brief the State contends that the prosecutor’s remarks referred to questions he was precluded from asking, rather than to assertions of specific misdeeds as facts. We think the fair import of the argument was to assert acts of molesting, adultery, and other extramarital activities as facts. Rodriquez v. State, 520 S.W.2d 778 (Tex.Cr.App.1975). The State analogizes the prosecutor’s remarks to “Have you heard” insinuations permissible in cross-examining defense character witnesses and cites Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971). In discussing the permissible form of such questions, Webber makes it clear that “Have you heard” questions cannot assert as facts the alleged misdeeds inquired about. Yet in the case at hand, the prosecutor stated that, “. . .we could not ask this Defendant . . . if it was not true that ... he had brought one of his ex-wives into their trailer . . and forced Gloria Jean to entertain that ex-wife . . . .” This statement can be translated, “Isn’t it true that . . .” and asserts the alleged misdeed as a fact. It is therefore objectionable under the reasoning involved in the Webber line of cases.

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

DOUGLAS, Judge

(concurring in part and dissenting in part).

I concur only in the result reached. I dissent to the dictum.

If defense counsel goes outside the record and invites a reply, the prosecutor should be able to answer outside the record. If the prosecutor has to argue only what has been introduced in evidence, then the majority is abolishing the doctrine of invited argument. It has always been the rule that a prosecutor may make reasonable deductions from and argue the evidence. Apparently, from the tenor of the majority opinion, the new rule about invited argument is that the prosecutor is only invited to discuss what he has always had a right to argue — the evidence in the case.

Now a prosecutor cannot answer specific false statements or impressions which are outside the record. This ruling in connection with the recent holding of the majority of the Court that statements of defense counsel are taken as true unless refuted leave the prosecution in a dilemma. See the dissenting opinion in Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975).


author: ODOM, Judge.

text:
    Herbert HESS, Appellant, v. The STATE of Texas, Appellee.
    No. 51106.
    Court of Criminal Appeals of Texas.
    Oct. 22, 1975.

      None on appeal, for appellant.
    Carol S. Vance, Dist. Atty., and James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for theft of a credit card. Upon appellant’s plea of nolo contendere to the primary count, the State waived two counts alleging prior convictions for purposes of enhancement. Punishment was assessed at two years.

At the outset we are confronted with fundamental unassigned error requiring consideration in the interest of justice. Art. 40.09(13), V.A.C.C.P.

The primary count of the indictment utterly fails to allege the date of the offense. The count of the indictment upon which the conviction is predicated reads:

“And the Grand Jury aforesaid do further present in and to said Court, at said term, that on or about the _ day of _, A.D., 19_, in said County of Harris and State of Texas, and after the judgment of conviction in said cause No. 1395 and the judgment of conviction in said cause No. 1407 had become final, the said Herbert Hess, who is the same person so twice formerly convicted, did fraudulently take and steal one credit card issued by Texaco Inc., a corporation which carries on a business in Harris County, Texas, to Harry J. Carpenter, the same being then and there the corporeal personal property of said Harry J. Carpenter, the owner thereof, from the possession of the said owner, without the consent of the said owner, and with the intent then and there to deprive the said owner of the value of the same, and to appropriate it to the use and benefit of the said Herbert Hess.”

An indictment to be sufficient must give the day, month, and year of the commission of the offense. 1 Branch’s Ann.P.C., 2nd ed., Sec. 452, and cases there cited. For failure to allege the date of the commission of the offense, the indictment in the instant case is fundamentally defective.

The judgment is reversed and the prosecution ordered dismissed.

DOUGLAS, J., not participating.


author: ONION, Presiding Judge.

text:
    Charles Milton SAUNDERS, Appellant, v. The STATE of Texas, Appellee.
    No. 51165.
    Court of Criminal Appeals of Texas.
    Oct. 22, 1975.

      None on appeal, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant entered a plea of guilty before the court to the offense of knowingly and intentionally delivering marihuana. Punishment was assessed at three (3) years.

The indictment, omitting the formal parts, alleges that appellant on or about May 24, 1974, “then and there knowingly and intentionally delivered to John Hester marihuana; . . . ” Consequently, such indictment was drawn under the provisions of Sec. 4.05, Texas Controlled Substances Act (Art. 4476-15, Vernon’s Ann.Civ.Stat.). The indictment is fundamentally defective in that it fails to allege the amount of marihuana delivered or that the marihuana was delivered for remuneration, so as to reflect what punishment is involved, whether the offense is a misdemeanor or felony, or whether the district court has jurisdiction. Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975); Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975); Wirges v. State, 521 S.W.2d 251 (Tex.Cr.App.1975); Medrano v. State, 524 S.W.2d 719 (Tex.Cr.App.1975); Tribble v. State, 525 S.W.2d 29 (Tex.Cr.App.1975).

The judgment is reversed and the prosecution is ordered dismissed.

DOUGLAS, J., not participating.


author: DALLY, Commissioner.

text:
    Charles Ray BRAXTON, Appellant, v. The STATE of Texas, Appellee.
    No. 50161.
    Court of Criminal Appeals of Texas.
    Oct. 29, 1975.

      Glen Williamson (Court-appointed on appeal), Kermit, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of rape; the jury set punishment at imprisonment for 20 years.

Appellant attacks the statutes under which the conviction was obtained; he also complains of improper jury argument and of the admission of testimony concerning his reputation for being a peaceful and law-abiding citizen.

Appellant asserts that:

“The conviction obtained herein is void because the statute upon which it is based is vague, uncertain and indefinite, and contains no requirement therein of a culpable mental state.”

V.T.C.A. Penal Code, Sec. 21.02, provides in pertinent part:

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

V.T.C.A. Penal Code, Sec. 6.01(a), provides:

“(a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession, in violation of a statute that provides that the conduct is an offense.”

V.T.C.A. Penal Code, Sec. 6.02, provides in pertinent part:

“(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.”

The definition of rape in V.T.C.A. Penal Code, Sec. 21.02, does not plainly dispense with a mental element; therefore, by linking V.T.C.A. Penal Code, Sec. 21.02, with V.T.C.A. Penal Code, Sec. 6.02(c), we find that intent, knowledge or recklessness are the applicable mental states and would suffice to establish criminal responsibility for the offense of rape. The language of the indictment, which the court tracked in instructing the jury, alleges that the appellant did:

“. . . voluntarily, intentionally, and knowingly by force that overcame such earnest resistance as might reasonably have been expected under the circumstances, compel [the prosecutrix], a female not his wife, to submit to sexual intercourse without her consent.” (emphasis ours.)

We conclude that appellant’s contention is without merit. This ground of error is overruled.

Complaint is next made of improper jury argument; it is asserted that the State’s attorney commented on the appellant’s failure to testify.

MR. WESCH [PROSECUTOR]:

“. . . The Defendant was present at the house for three days prior to the time this happened. Why? Ask yourselves why. Did his employer come up here and tell you he was working those three days? Was he really working? That’s something the defense lawyers could have proven up with the boss.”

At the time this argument was made counsel for appellant objected saying that the District Attorney was “trying to shift some of the burden of proof.” The appellant has changed his grounds of objection on appeal. The court did not rule on the objection, there was no request that the jury be instructed to disregard the comment, and no motion for mistrial was made. Absent an adverse ruling of the court, nothing is presented for review. Kennedy v. State, 520 S.W.2d 776 (Tex.Cr.App.1975); Garcia v. State, 513 S.W.2d 559 (Tex.Cr.App.1974). We also observe that it is clear the District Attorney was referring to the absence of testimony from the employer of the appellant.

Appellant contends in two grounds of error that the State’s attorney made improper and prejudicial statements during voir dire examination and final arguments, that “we don’t need one man hanging in there so we will have to try this case again.” No objection was made subsequent to the statement during either voir dire or final arguments. Nothing is presented for review. See McBride v. State, 519 S.W.2d 433 (Tex.Cr.App.1974); Wheeler v. State, 496 S.W.2d 85 (Tex.Cr.App.1973). These grounds of error are overruled.

Appellant asserts in three grounds of error that the prosecutor engaged in improper argument, once at the guilt or innocence stage and twice at the punishment stage. Once again, there was no objection made and nothing is presented for review. Johnson v. State, 504 S.W.2d 496 (Tex.Cr.App.1974); Wheeler v. State, supra.

Appellant’s remaining contention is that it was error to admit, during the punishment stage of the trial, testimony of Sheriff Bell concerning the reputation of the appellant for being a peaceful and law-abiding citizen. It is here claimed that Bell was unqualified to testify concerning appellant’s reputation because his knowledge of the appellant was limited to the facts of the instant case. It must first be noted that no objection was made to Bell’s testimony; further, appellant neither made a motion for mistrial, nor requested that the testimony be stricken. The error was not preserved. The witness testified on cross-examination that he had known the appellant since March, 1974. The offense for which appellant was convicted occurred in March, 1974. There was no showing that the witness had no knowledge of the appellant other than the facts of the instant case or that the witness had not spoken with members of the community concerning appellant’s reputation. See Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975). This ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.


text:
    Joe A. HEREDIA, Appellant, v. The STATE of Texas, Appellee.
    No. 50315.
    Court of Criminal Appeals of Texas.
    Oct. 29, 1975.

      Lamoine Holland, San Antonio, for appellant.
    Ted Butler, Dist. Atty., John Hrncir, Fred Rodriguez and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of burglary; punishment, enhanced under Article 63, V.A.P.C., was assessed at life.

The sufficiency of the evidence is not challenged.

In his first ground of error, appellant asserts:

“The trial court committed reversible error in overruling Defendant’s Motion to Suppress Evidence in finding Defendant gave effective consent to search when without having been apprised of any rights whatsoever, Defendant, if he did consent, did so only after he had been accused of a criminal offense.”

The record reflects that appellant, while driving an automobile, was stopped for a traffic violation. After the officer issued a citation, appellant started to leave the scene. The officer then received a radio report of a recent burglary in the vicinity, and called appellant to question him about the reported offense. The officer stated he suspected appellant might be connected to the burglary because the initial stop had been made due to the speedy and reckless manner in which appellant was driving away from the location of the reported burglary, some three to five blocks away. He further testified that upon confronting appellant with the grounds for his suspicions, appellant invited the officer to take him to the scene of the offense for possible identification, and also invited the officer to search his person and to search the automobile.

Although appellant testified that no consent was given, the trial court was the sole judge of the credibility of the witnesses and the facts on the motion to suppress. The evidence supports the trial court’s finding that the search was authorized by appellant’s consent. The record does not support appellant’s contention that he was the one accused of a crime at the time of the search but, to the contrary, reveals that he was only under suspicion. Furthermore, even had appellant been accused of the burglary, we find that appellant did not merely consent to a request to search, but in fact invited the search, apparently in an effort to dispel suspicion. We decline to hold that in the face of an invitation to search, an officer must interrupt a suspect and warn him that he need not consent to the search. Cf. Ribble v. State, Tex.Cr.App., 503 S.W.2d 551; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Appellant’s first ground of error is overruled.

Next, appellant contends he was denied assistance of counsel when the court permitted voir dire of the jury panel in the absence of defense counsel.

The voir dire of the jury panel is not in the record. Appellant sought to preserve error by producing evidence at the hearing on the Motion for New Trial showing the course of events. It is there established in the record that the first five members of the panel were examined on the afternoon before the events complained of. The court directed that the proceedings would resume at 9:00 a. m. the next day. Voir dire resumed at 9:01 a. m. and counsel arrived two or three minutes later, during the State’s examination of the sixth member of the panel. Appellant was not denied the right to examine the sixth member of the panel and, in fact, as reflected elsewhere in the record, exercised one of his peremptory challenges on that member. The ground of error is overruled.

In his third ground of error, appellant argues the trial court erred in overruling his objection to the introduction of a judgment and sentence in cause number S— 62442 in the 175th District Court of Texas entered September 23, 1963, which objection was for lack of evidence establishing the identity of appellant and the Jose Am-erico Heredia named in those instruments.

Evidence had been introduced by documents from the Texas Department of Corrections establishing that Jose Americo He-redia was convicted in cause number S— 62442 in the 175th District Court on September 23, 1963, of forgery. Fingerprint evidence established the identity of appellant and the person whose conviction was so proven. The indictment in the instant case, however, alleged for enhancement purposes that appellant was previously convicted of passing as true a forged instrument, on September 23, 1963, in cause number S-62442 in the 175th District Court. Because of the variance between the prior offense as alleged and the prior offense as proven, to-wit: passing as true a forged instrument and forgery, the State sought to prove the true offense for which appellant had been convicted in cause number S-62442 in the 175th District Court on September 23, 1963, and to prove that the offense as stated in the records of the Texas Department of Corrections constituted a clerical error. To make such proof they called the deputy district clerk assigned to the 175th District Court and by her introduced the documents complained of on appeal.

Identity had been proven previously, and the documents complained of were offered only to establish the true offense and show the clerical errors in the previously introduced documents. Appellant’s objection was without merit and the ground of error is overruled.

In his final ground of error, appellant argues that he is entitled to a new trial because of jury misconduct during the deliberations on punishment.

Appellant asserts, the evidence adduced at the hearing on the motion for new trial shows, and the State in its brief concedes, that during punishment deliberations a statement was made by one of the jurors that a life sentence means only seventeen years.

The State contends that before reversal will be ordered for jury discussion of the parole law it must appear that the juror who makes such a statement must profess to know the law. With this statement we cannot agree, even though in Powell v. State, Tex.Cr.App., 502 S.W.2d 705, 711, we stated, “It must be shown that the statement was a misstatement of the law and that the juror relied upon this misstatement as an asserted fact.”

Through the years various standards have been asserted to be the test for ascertaining whether jury discussions constitute reversible error.

In Montello v. State, 160 Tex.Cr.R. 98, 267 S.W.2d 557 (1954), the conviction was affirmed upon the finding that the statement was not made as a declaration of fact, nor was there any testimony that any juror was influenced or affected by the discussion. It was observed that commutation of time for good conduct and the executive power to grant pardons and paroles were of common knowledge. It was not held that a defendant must show both that the statement was declared as fact and that a juror was influenced or affected by the discussion to demonstrate reversible error. The converse is implied in the holding that, having shown neither, the judgment must be affirmed.

In Roberson v. State, 160 Tex.Cr.R. 381, 271 S.W.2d 663 (1954), and later in Johnson v. State, 165 Tex.Cr.R. 237, 305 S.W.2d 606 (1957) and Napier v. State, 166 Tex.Cr.R. 361, 314 S.W.2d 102 (1958), it was stated that the proper question on appeal “is to determine whether or not the information which was received by the jury was untrue or was harmful to appellant.” (Emphasis added.) The two tests were thus stated to be alternative, not cumulative.

De La Rosa v. State, 167 Tex.Cr.R. 28, 317 S.W.2d 544 (1958), affirmed the conviction on facts which showed:

“1. That the jurors voted guilty unanimously.
“2. Thereafter some of the jurors questioned the length of time that defendant would be in the penitentiary if sentenced to a number of years and the note was sent to the judge.
“3. None of the jurors professed to know the provisions of the law, but knew that it was common practice for prisoners to be released from the penitentiary prior to the expiration of the full calendar time which the jury assessed.
“4. After being instructed by the court in answer to their inquiry, the matter was not further discussed.”

It will be seen that under such facts neither of the alternative elements stated in Mon-tello, supra, was shown, and, likewise, neither of the alternative elements stated in Roberson, supra, was shown. On Motion for Rehearing, however, it was asserted that “only where such discussion is an incorrect statement of the law” will reversal be ordered, citing Jackson v. State, 157 Tex.Cr.R. 323, 248 S.W.2d 748 (1952). Jackson, however, reversed the conviction because the affidavit in support of the motion for new trial was held sufficient to support the allegations of jury misconduct. Although the affidavit therein alleged a misstatement of law asserted as fact believed by the juror, the court did not hold that all such elements must be shown to demonstrate jury misconduct requiring reversal. The elements were held sufficient to show such misconduct, but were not held necessary for such a showing.

Jackson, supra, in turn, cited Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168 (1947), as an instance where reversal was ordered because one juror gave an incorrect version of the indeterminate sentence law to other jurors. The opinion in Price, supra, however, stated that the comment of the juror had the effect of bringing about a greater punishment, and concluded that under the facts the defendant was deprived of a fair trial. Then on Motion for Rehearing it was added, as if to emphasize the wrong, that not only had a juror advised the others as to the applicability of the indeterminate sentence law, but he had done so incorrectly. It was also pointed out that the State was not permitted to argue the effect of such law to the jury, and that therefore certainly a member of the jury could not do so. The opinion on rehearing, however, did not suggest that these points made to emphasize the error were essential elements to show reversible error. In fact, the statement “We remain convinced of the correctness of our original conclusion” can only mean that the defendant therein was deprived of a fair trial because the comment of the juror had the effect of bringing about a greater punishment, and this regardless of whether it was a misstatement of the law or not.

De La Rosa, supra, was cited in Johnson v. State, Tex.Cr.App., 418 S.W.2d 834 (1967) for the proposition that reversal will be ordered only where the discussion involves an incorrect statement of the law. Finding no such misstatement, the judgment was affirmed.

Edwards v. State, Tex.Cr.App., 427 S.W.2d 629 (1968), in turn affirmed the judgment upon finding that there was neither a misstatement of the law nor did anyone profess to know the law, but without stating whether both such elements must be shown or whether either alone will require reversal. Jones v. State, Tex.Cr.App., 462 S.W.2d 578 (1971), however, reasserted the De La Rosa on Motion for Rehearing test in no uncertain terms: even if it be shown that one or more jurors changed their votes as a result of discussion of the parole law, such discussion will not be reversible error “unless it be shown that the statement was a misstatement of the law.”

Demolli v. State, Tex.Cr.App., 478 S.W.2d 554 (1972), added to the Jones requirement: not only must there be a misstatement of the law, but the speaker must profess to know the law. This two-prong assertion was repeated in Daniel v. State, Tex.Cr. App., 486 S.W.2d 944 (1972), and in Brewer v. State, Tex.Cr.App., 500 S.W.2d 509 (1973). In Powell v. State, Tex.Cr.App., 502 S.W.2d 705 (1974), a variation was announced: there must be a misstatement of the law and the misstatement must be relied upon as true by some other juror. Whether the speaker actually asserted it as true or professed to know the law was not mentioned as an element.

Turning now to some of the cases where reversal was ordered on a contention such as that under discussion, in Spriggs v. State, 160 Tex.Cr.R. 188, 268 S.W.2d 191 (1954), the statement was held to constitute “the giving of testimony to the jury — testimony which was clearly wrong,” and reversal was ordered upon the authority of Price v. State, discussed above.

Mays v. State, 167 Tex.Cr.R. 339, 320 S.W.2d 13 (1959), and later Moore v. State, 171 Tex.Cr.R. 182, 346 S.W.2d 349 (1961), both citing Roberson, supra, stated the issue to be whether the other testimony received after retirement was untrue or harmful to the defendant, implying that, even if true, testimony received after retirement, if harmful, will require reversal. In Mays it was specifically stated if the statements are untrue, the mere making of them would constitute misconduct warranting reversal.

In Scaling v. State, Tex.Cr.App., 499 S.W.2d 318 (1973), reversal was ordered on facts that showed a misstatement of law had the effect of increasing punishment.

The cases discussed establish that there has been an inconsistency of standards. Authority may be cited for a standard requiring a showing that (1) a misstatement of the law (2) asserted as fact (3) by one professing to know the law (4) which is relied upon by other jurors (5) who for that reason change their vote to a harsher punishment, before reversible error is shown; but likewise authority may be cited which would require only a showing that a statement on the parole law was made and it was either untrue or it was harmful. Much distance lies between these extremes.

In determining the law on this matter, we turn to the statutory foundation upon which the issue ultimately rests. Article 40.03, Y.A.C.C.P., provides in part:

“New trials, in cases of felony, shall be granted for the following causes, and for no other:
“7. Where the jury, after having retired to deliberate upon a case, has received other testimony; .
“8. Where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial. . . .”

Does jury discussion of the parole law requiring reversal constitute receiving other testimony after retiring to deliberate or misconduct that has deprived the defendant of a fair and impartial trial? Some decisions ordering reversal have indicated one ground, some the other. In Mays v. State, supra, the court concluded:

“Under the record we are of the opinion that the incorrect statement made by the unidentified juror and the discussion by the jury constituted such misconduct that appellant has not received a fair and impartial trial.” (Emphasis added.) 320 S.W.2d, at 15. (Compare with language of the statute.)

On the other hand, in Spriggs v. State, supra, the court stated:

“Also the contention is raised that a new trial should have been granted under Section 7 of Article 753, C.C.P. [of 1925, now Art. 40.03, Sec. 7, V.A.C.C.P.]. ******
“The statement of the unidentified jur- or constituted the giving of testimony to the jury . . .” 268 S.W.2d, at 192.

And in Montello v. State, supra, the conviction was affirmed after finding neither prohibition violated:

“We find no such receipt of new evidence or misconduct of the jury in regard to the discussion of the newspaper article as to call for reversal.” (Emphasis added.) 267 S.W.2d, at 559.

We hold that either principle may apply, depending upon the facts of the case. We adhere to those pronouncements in pri- or decisions that it is common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole. E. g., Taylor v. State, Tex.Cr.App., 420 S.W.2d 601. Consequently, the mere mention of this common knowledge would not constitute the receipt of other evidence, nor would a further discussion of it constitute receiving new evidence any more than discussion of any other matter of common knowledge by the jury. On the other hand, information may be given to the jury, by a juror or someone else, which would constitute receiving other evidence. Information which would constitute other evidence would include, for example, a jur- or relating his personal knowledge of some particular case from which the jury might then try to “figure out” what the parole law is. Also, a misstatement of the law, by being incorrect, would constitute other evidence, since by being false it certainly could not be classified as “common knowledge.” See e. g., Moore v. State, 171 Tex.Cr.R. 182, 346 S.W.2d 349. The receipt of such other evidence, even if nothing further be shown' such as would constitute misconduct requiring a new trial under Section 8, on a proper set of facts could require reversal under Section 7.

Distinct from the receipt of new evidence, discussion of the parole law, although common knowledge, would in every case constitute jury misconduct since the parole law is not for the jury’s consideration. But not all such misconduct necessarily denies the defendant a fair and impartial trial, and it is that standard which determines whether a new trial is required for misconduct under Section 8 of Article 40.03, supra. For example, the mere mention of the parole law would not be such misconduct as would require a new trial. Likewise, a discussion of the parole law, followed by instructions that it should not be discussed, coming from the court in response to a message from the jury or coming from a juror, after which it is not further discussed, would not be such misconduct as to require a new trial. See e. g., facts in De La Rosa v. State, supra, quoted above. What does constitute such degree of misconduct as to deny the defendant a fair and impartial trial must be determined upon the facts of the individual case.

We now examine the facts in this case to determine whether appellant is entitled to a new trial under either of the statutory grounds stated above. The record of the hearing on the motion for new trial shows that after the complained of statement the jury foreman promptly instructed the jurors that it would not be proper for them to consider the extraneous information communicated to them. It further reflects that thereafter the matter was not discussed.

If the statement be considered “other testimony” under Article 40.03(7), V.A.C.C.P., in view of the prompt instruction by the foreman and the fact that it was not thereafter discussed, we conclude that it cannot be construed as having been “detrimental to appellant.” Marquez v. State, 172 Tex.Cr.R. 363, 356 S.W.2d 797; Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816. We likewise conclude, from the same considerations, that the statement complained of did not constitute misconduct depriving appellant of “a fair and impartial trial” under Article 40.03(8), supra. E. g., De La Rosa v. State, supra.

The ground of error is overruled.

The judgment is affirmed.

MORRISON, J., concurs in the affirmance of this conviction.

DOUGLAS, J., not participating.

      . Despite that dictum, we are still of the opinion that Powell, supra, was properly decided, the factual issue of what actually occurred in the jury room having been decided adversely to the defendant’s contention.

      . However, such further discussion may well constitute jury misconduct requiring reversal, as is further discussed below.

      . Not every showing of such receipt of other evidence would require reversal. See e. g., Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816, 822, on motion for rehearing; Marquez v. State, 172 Tex.Cr.R. 363, 356 S.W.2d 797.

      . The trial court properly charged: “.
      you should not in deliberating as to punishment discuss how long this Defendant would be required to serve in order to satisfy the sentence imposed.” The determination to grant parole, if and when made, rests upon many facts and events not known to the jury, not proper for consideration by the jury, and not having occurred at the time of trial. Article 42.12, Sec. 12 et seq., V.A.C. C.P. The decision to parole, if and when made, is beyond the province of the courts (except, of course, complaints of denial of constitutional or statutory rights in consideration for parole may be raised by petition to the courts, e. g., by habeas corpus) and therefore of the jury, and is exclusively a matter within the province of the executive branch of government, under proper regulation by the legislative branch. Article IV, Section 11, Texas Constitution.


author: MORRISON, Judge.

text:
    Bobby FINLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 50403.
    Court of Criminal Appeals of Texas.
    Oct. 29, 1975.
    Weldon Holcomb, Tyler, for appellant.
    Curtis L. Owen, Dist. Atty., Howard W. Britain, Asst. Dist. Atty., Tyler, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is delivery of marihuana; the punishment, two years.

The indictment, omitting I the formal parts, alleges that appellant on or about October 19, 1973, did “. . . then and there knowingly and intentionally deliver to Oscar Salazar a controlled substance, to-wit: Marihuana . . . ” Consequently, such indictment was drawn under the provisions of Section 4.05, Texas Controlled Substances Act (Article 4476-15, V.A.C.S.). The indictment is fundamentally defective in that it fails to allege the amount of marihuana delivered or that the marihuana was delivered for remuneration, so as to reflect what punishment is involved, whether the offense is a misdemeanor or felony, or whether the district court has jurisdiction. Saunders v. State, Tex.Cr.App., 528 S.W.2d 843 (delivered October 22, 1975); Tribble v. State, Tex.Cr.App., 525 S.W.2d 29; Medrano v. State, Tex.Cr.App., 524 S.W.2d 719; Wirges v. State, Tex.Cr.App., 521 S.W.2d 251; Mears v. State, Tex.Cr.App., 520 S.W.2d 380; Wilson v. State, Tex.Cr.App., 520 S.W.2d 377.

The judgment is reversed, and the prosecution is ordered dismissed.

DOUGLAS, J., not participating.


author: CADENA, Justice.

text:
    O. R. MITCHELL MOTORS, INC., Appellant, v. Charles R. BELL, Appellee.
    No. 15288.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 13, 1974.
    Rehearing Denied Oct. 8, 1975.
    Second Motion for Rehearing Denied Oct. 29, 1975.

      A. W. Worthy, Gresham, Davis, Gregory, Worthy & Moore, San Antonio, for appellant.
    Morriss & Morriss, San Antonio, for ap-pellee.
   CADENA, Justice.

Plaintiff, Charles R. Bell, filed this suit to recover from defendant, O. R. Mitchell Motors, Inc., the statutory penalties of double the time price differential on a retail installment contract for the sale of an automobile to plaintiff by defendant. Following a nonjury trial and based on findings that defendant had violated Article 5069-7.-02 of the Consumer Credit Code (Articles 5069-1.01 et seq., Tex.Rev.Civ.Stat.Ann.) in three respects, the trial court rendered judgment that plaintiff recover the sum of $675.02, representing an amount equal to double the time price differential provided for in the contract, and the further sum of $700.00 as attorneys’ fees. This is the judgment from which defendant appeals and plaintiff, by way of cross-point, asserts that the trial court erred in not awarding the statutory penalty for each violation.

The term, “Consumer Credit Code,” is generally applied to Title 79 of the Revised Civil Statutes of this State. We are here primarily concerned with Chapters 7 and 8 of Subtitle 2 of Title 79. Chapter 7 of Subtitle 2 (Articles 5069 — 7.01 through 5069-7.10) applies to motor vehicle installment sales, while Chapter 8 (Articles 5069-8.01 through 5069-8.05) primarily deals with penalties applicable to violations of Subtitle 2.

In this opinion, when reference is made to pertinent provisions of the Code, the number “5069” will be omitted. Thus a reference to “Article 7.02(2)” shall be understood as a reference to Article 5069-7.02(2).

The trial court found that the contract documents in this case did not meet the requirements of the Code in that the printed portion of the retail installment contract was not in a size equal to at least eight-point type, as required by Article 7.02(2); the acknowledgment by the buyer of receipt of a copy of the contract did not appear “directly above” the buyer’s signature as required by Article 7.02(4); and the contract did not specifically set out the “aggregate amount” included for insurance, as required by Article 7.02(6)(d).

The judgment below is based on Article 8.01 of the Code, which provides as follows:

“Any person who violates this Subtitle by contracting for, charging or receiving interest, time price differential or other charges which are greater than the amount authorized by this Subtitle, or by failing to perform any duty specifically imposed on him by any provision of this Subtitle, shall forfeit to the obligor twice the amount of interest or time price differential and default and deferment charges contracted for, charged or received, and reasonable attorneys’ fees fixed by the court, provided that there shall be no penalty for a violation which results from an accidental and bona fide error.” (Emphasis added.)

Defendant first asserts that, even if it be assumed that the contract documents fail to comply with the Code requirements in the three particulars found by the trial court, there is no basis for imposing liability on it. This argument is based on the language of Article 7.02 and Article 8.01. The statutory provisions relating to the contents and forms of the retail installment contract which are pertinent here provide:

1. “The printed portion of the . contract, . . . shall be in size equal to at least eight-point type.” Article 7.02(2).

2. “The seller shall deliver to the buyer, or mail to him at his address shown on the . contract, a copy of such contract as accepted by the seller. Until the seller does so, a buyer who has not received delivery of the motor vehicle shall have the right to rescind his contract . . . . Any acknowledgment by the buyer of delivery of a copy of the . . . contract shall be in a size equal to at least ten-point bold type and shall appear directly above the buyer’s signature.” Article 7.02(4). (Emphasis added to indicate the requirement found by the court to have been violated in this case.)

3. “The . contract shall specifically set out the following items: . (d) The aggregate amount, if any, included for insurance if a separate identified charge is made therefor, specifying the type or types and the term of coverage; . . . .” Article 7.02(6)(d).

Defendant contends that the portions of the code here applicable merely provide that the written instrument shall meet certain requirements and contain no language imposing on the seller the duty to assure that the contract conforms to the statutory specifications. Since Article 8.01, defendant’s argument continues, imposes a penalty only on a person who fails “to perform” a “duty specifically imposed on him by any provision of” Subtitle 2, no penalty can be imposed on it in this case, since the pertinent provisions of Article 7.02 do not “specifically” impose a duty on the seller.

Defendant’s argument is insufficient to persuade us to construe the legislative scheme, which was intended to prevent “abusive and deceptive practices in the conduct of their businesses” by “lenders and vendors” (Acts 1967, 60th Leg. p. 608, § 1) as consisting of no more than a series of precatory incantations.

Defendant urges that a retail credit seller, or, at least, defendant in this case, does not ordinarily prepare the contractual documents which contain the terms and conditions of the credit transaction, but, instead, uses documents prepared by a lending or financing institution which acquires the obligation by assignment from the seller, and that, for this reason, the legislature chose not to impose “specifically” on sellers of automobiles on credit the “duty” to prepare and complete the contractual documents, or to take any precaution to see to it that the contractual documents conformed to the statutory requirements. It may be that the legislature realized that credit vendors of motor vehicles do not, in fact, prepare the documents which embody the terms and conditions of the credit transaction but, instead, rely on the person to whom they regularly assign such documents. But it is at least as likely that the legislature knew that the buyer, the person whose interests were intended to be protected, did not furnish the necessary documents, and that in all such transactions the buyer merely signed instruments handed to him by the seller, who completed the instruments and handed them to the buyer, in purportedly complete form, with the request that the buyer “sign here.” Much lip-service, of course, has been given to the canon that a statute which imposes a penalty should be “strictly” construed. Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895 (Tex.1962). But this canon is simply a guide to be used when resort to it furthers the legislative purpose. The cardinal rule of construction which, significantly, has been expressly adopted by the legislature, is that “the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.” Tex.Rev.Civ.Stat.Ann. Article 10(6) (1969). None of the legislative mandates concerning statutory construction which are embodied in Article 10 speak of “strict construction,” with the exception of Paragraph 8, which contains the express command, often ignored by our courts, that the rule of the common law that statutes “in derogation thereof” shall be strictly construed “shall have no application” and further commands that the statutes “shall be liberally construed with a view to effect their objects. . . .” A similar legislative distaste for a “strict construction” canon first found expression, with respect to criminal statutes, in 1856, and, despite judicial reluctance to accept the legislative pronouncement, has been carried forward into the provisions of our present Penal Code in the forthright statement to the effect that the common law rule “that a penal statute is to be strictly construed does not apply to this code.” Tex.Penal Code Ann. § 1.05(a) (1974) and accompanying Practice Commentary.

In view of the clear legislative intent to protect buyers by preventing abusive and deceptive practices by sellers, and to achieve this objective by regulating the conduct and activities of sellers, there can be no doubt that the legislature intended to achieve its goal by imposing duties on the persons who, in the legislative judgment, had, under the old law, been guilty of abusive and deceptive practices. Thus, there can be no doubt that the purpose of Article 7.02 was to impose duties on sellers, the persons who, in the ordinary course of business, as did defendant here, present to the buyer a document ready for the buyer’s signature. Regulation presupposes control by imposition of rules and standards to be followed, and it would be nonsensical to hold that the legislature sought to impose rules and standards to be followed by sellers without imposing a duty on the regulated persons to comply with such rules and standards. To attempt to regulate the conduct of a class of persons without imposing duties on the members of the regulated class would be an attempt to regulate by not regulating. It is obvious that, if the legislative attempt to protect the credit buyers of motor vehicles is to be regarded as anything other than an exercise in futility, the legislative pronouncements concerning the form and contents of the retail installment contract must be construed as imposing duties on the seller, since it is the conduct of the seller which the legislature sought to regulate.

Our conclusion that it is the duty of the seller to see to it that the retail installment contract conforms to the statutory specifications finds support in the requirement, in Article 7.02(4), that the seller shall deliver to the buyer a copy of “such contract.” The term “such contract” can only refer to the retail installment contract, and, clearly, the retail installment contract which the legislature had in mind is a contract which conforms to the requirements of the statute. Delivery by the seller to the buyer of a contract which is not in a size at least equal to eight-point type, in which the acknowledgment of receipt of a copy of the contract does not appear directly above the buyer’s signature, and which does not specifically set out the aggregate amount included for insurance is not a delivery of “such contract” as contemplated by the statute.

Defendant’s first point is overruled.

Defendant does not challenge the trial court’s finding that the printed portion of the contract was not in a size equal to at least eight-point type. But, by its second point of error, defendant insists that the failure of the documents to conform to the requirements concerning size of type cannot be made the basis of a judgment against it because the undisputed evidence establishes that the violation was the result of accidental and bona fide error.

Under the plain provisions of Article 8.01, there can be no penalty for a violation “which results from an accidental and bona fide error.” The statute does not define “accidental and bona fide error.”

Defendant is in the business of selling automobiles. The contract documents in this case were prepared by Bankers Investment Company, a limited partnership engaged in the automobile financing business and supplied by it to defendant. The evidence shows that defendant made the entries which it judged necessary for the completion of the contract in the spaces which were left blank in the printed instruments. After execution of the contract by plaintiff and defendant, defendant assigned the contract to Bankers Investment Company, which, at the time of the trial, was the holder of the contract.

The trial court found that defendant relied on Bankers Investment Company to furnish to defendant “forms which complied with the Texas Consumer Credit Code,” and that Nelson Miller, one of the general partners of Bankers Investment Company, had ordered the forms which were subsequently supplied to defendant. According to the trial court’s findings, Miller instructed the printer to use a minimum type size of not less than eight-point type, and that Miller relied on the printer and in good faith believed that the type size conformed to the statutory requirements. The court further found that Miller relied on the advice of counsel that such forms, when properly completed and signed, would comply with the provisions of the Code. The trial court made no findings concerning the bona fides of defendant, except insofar as the- above findings might be relevant to that issue, and expressly refused to find that defendant “believed in good faith” that the forms furnished to it complied with the statutory requirements.

In its brief, defendant asserts that the findings show that the forms were ordered with a minimum type size meeting the statutory requirements and were believed to comply with the statute and with the instructions given the printer. The actual finding was to the effect that the forms were ordered, and the instructions relating to type size given, by Bankers Investment Company, not by defendant. Defendant then asserts that, as far as it is concerned, “the mistaken inclusion by the printer, contrary to the instructions given him, of a smaller, but heavier face type, can only be attributed to an accidental error made in good faith.”

The evidence does not establish as a matter of law that the defect in the document as to the type of size was the result of an accidental or bona fide error on the part of defendant. In its brief, as pointed out, defendant speaks of a mistake on the part of the printer. There is no evidence to indicate that the use of a smaller type by the printer was the result of a mistake on his part. In any event, the mistake of the printer cannot be treated as the mistake of defendant and, assuming that the printer did, in fact, make a mistake, and that such mistake was made by the printer in good faith, we find no basis for imputing the good faith of the printer to defendant, any more than we would impute the bad faith of the printer, who had no connection with defendant, to defendant.

It may be, too, that the evidence establishes the existence of an accidental and bona fide error on the part of Bankers Investment Company and of its officer, Miller. But neither Bankers Investment Company nor Miller, who had no connection with defendant, are named as defendants, and when we consider the liability of defendant, our sole concern must be with the good faith of defendant, and not of some third party. The testimony in this case is not lengthy, and a reading of the record discloses no evidence indicating that defendant, or any of its employees, actually believed that the type was at least eight-point type. This explains the refusal of the trial court to find that defendant believed in good faith that the printed forms complied with the Code. Evidence to the effect that X gave certain instructions to Y and that X in good faith believed that Y had followed such instructions is not evidence that Z acted in good faith.

Defendant’s second point is without merit.

We agree with defendant that the contract in question complies with the requirement that the buyer’s acknowledgment of receipt of a copy of the contract appears “directly above” the buyer’s signature and that, therefore, the trial court erred in finding a violation of Article 7.02(4).

The pertinent portion of the printed form is as follows:

“Buyer acknowledges he (she) has read and received a completed copy of this agreement including the conditions on the reverse side.

Salesman_ Buyer

Signs_ Co-buyer

Signs_ Approved By

⅛_"

In this case, on the blank line designating “Salesman” appears a signature, apparently that of the salesman. On the line immediately below this appears the signature of plaintiff, the buyer, and on the line immediately below this there appears the signature of plaintiff’s mother. Another signature appears on the next and last line.

It is true, as plaintiff points out, that between the signature of the buyer and the acknowledgment of receipt of delivery of a receipt of a copy of the contract there appears the signature of the salesman. But, even if we accept plaintiff’s definition of “directly” as “without anything intervening,” we conclude that the receipt of acknowledgment in this case does appear directly above the buyer’s signature. A reasonable interpretation of the statutory language, bearing in mind the legislative purpose and the evil was the concern of the lawmakers, compels the conclusion that it was intended that the acknowledgment of receipt of a copy of the contract not be “buried” among other provisions of the contract. Here, no contractual provision, term, condition or recital intervenes between the acknowledgment and the buyer’s signature. Except for the word “salesman,” there is no printing between the buyer’s signature and the acknowledgment. We find no basis for holding that the intervening line for the signature of the salesman had the effect of diverting the buyer’s attention from the last paragraph of the contract itself which contains the acknowledgment.

Finally, defendant urges that the trial court erred in concluding that the contract violated Article 7.02(6)(d) because it did not specifically set out “the aggregate amount, . included for insurance. . . . ”

Under the heading, “Credit Sale Disclosure Statement,” there appear 20 statements. The first four set out the cost of the vehicle ($1,295.00), state and local taxes ($51.80), license and “titles” fees ($1.25), and installation and/or make ready charge ($10.00). The total of these amounts is entered on the fifth line with the designation, “cash price” ($1,358.05). The next five entries disclose total amount of down payment ($300.00), and the eleventh disclosure shows the unpaid balance of the cash price as being $1,058.05.

Line 12 sets out the amount of $328.00 for physical damage insurance for 12 months, and line 13 shows a subtotal of $1,386.05, representing the unpaid balance of the cash price plus the cost of physical damage insurance. Lines 14 and 15 show credit life insurance ($24.64) and health and accident insurance ($42.68), with the statement that both types of insurance are required for the term of the contract. Line 16 shows the “amount financed” as being $1,453.37, which is the total of the unpaid balance of the cash price ($1,058.05), the cost of physical damage insurance ($328.00), and the cost of credit life insurance ($24.64) and health and accident insurance ($42.68).

Line 17 shows a “finance charge” of $337.51, while line 18 designates the “total amount of payments” ($1,790.88). Line 20 discloses the “deferred payment price,” which is the sum of the down payment ($300.00) and the “total amount of payments” ($1,790.88), or $2,090.88. The final disclosure shows the annual percentage rate to be 22.36%.

It is plaintiff’s contention that the requirement that the contract specifically set out the “aggregate amount, if any, included for insurance” means, in this case, that the agreement disclose the sum of the charges made for each type of insurance; that is, there should have been included a separate entry showing the amount $395.32, representing the combined cost of physical damage insurance ($328.00), credit life insurance ($24.64) and health and accident insurance ($42.68).

We agree with defendant that the contract here complies with the requirements of Article 7.02(6)(d). It cannot be persuasively argued that the instrument is deceptive in any way insofar as the charges for insurance are concerned. There is a specific identification of each element of the additional cost of buying on credit instead of paying cash. There is a full disclosure of the type or types of insurance and of the terms and coverage of such insurance. Stated differently, we hold that the Code requirement concerning the cost of insurance is satisfied if the instrument discloses the aggregate cost of each type of insurance.

Since we have concluded that the record establishes but one violation of the Code, it is unnecessary to consider plaintiff’s contention that, in cases involving multiple violations, plaintiff is entitled to recover the statutory penalty for each violation.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

In its motion for rehearing, appellant insists, among other things, that the evidence establishes that the use of smaller type than that required by the Consumer Credit Code was the result of an accidental and bona fide error. As in the original opinion, we shall refer to appellant as “defendant.”

Our discussion of the defense of accidental and bona fide error will be based on the assumption that Bankers Investment Company, which furnished the form used by defendant, acted in good faith, and that the failure of the instrument to meet the statutory requirements relating to type size was the result of an accidental and bona fide error by Bankers. We need not concern ourselves with the conduct or state of mind of the printer, since there is no evidence indicating that the printer did not intentionally and deliberately use the smaller type size and, therefore, there is no evidence of accidental and bona fide error on the part of the printer.

We specifically hold that defendant did not discharge its burden of proof by establishing accidental and bona fide error on the part of Bankers. The relevant conduct is the conduct of defendant, and not the conduct of a third party. For example, if defendant established that the violation was the result of an accidental and bona fide error on its part, plaintiff could not circumvent that defense by showing that Bankers acted in a deliberate, intentional and fraudulent manner.

We here concern ourselves with defendant’s contention that the finding that it relied on Bankers to furnish it with forms which complied with the requirements of the Code necessarily establishes that the violation was the result of an accidental and bona fide error by defendant, despite the trial court’s deliberate refusal to make a finding attributing the violation to accidental and bona fide error on the part of defendant.

As defendant points out, the dictionary defines “rely” as “To rest with confidence, as when satisfied of the veracity, integrity or ability of persons, or of the certainty of facts or of evidence; to have confidence; to trust; to depend; . . ..”

Even if it be assumed that defendant was justified in having confidence in Bankers; that defendant was satisfied of the veracity, integrity or ability of Bankers; and that defendant’s trust in, and dependence on, Bankers rested on defendant’s knowledge of Bankers’ methods of doing business and reputation, such reliance would not establish defendant’s good faith belief that Bankers had performed in the anticipated manner. It is one thing to believe that a person will perform in a certain manner. It is another thing to believe that a person has performed in that manner. To establish that defendant acted in good faith, it is necessary to show that, after Bankers had delivered the forms to defendant, defendant believed that the forms were correct and met the statutory requirements. Certainly, it cannot be seriously argued that defendant acted in good faith if, despite its justified confidence in Bankers, defendant knew, after receiving the forms, that they did not meet the Code requirements. Justified reliance does not justify conduct engaged in with knowledge that one’s reliance, however much initially justified, was misplaced.

Since the burden of establishing the defense was on defendant, it was necessary that defendant produce evidence not only that it relied on Bankers to do the right thing, but that defendant’s subsequent action was based on the belief that Bankers had acted in accordance with defendant’s expectations. Stated differently, it was necessary that defendant produce evidence to the effect that it had no knowledge of the fact that, with respect to type size, the forms did not meet the statutory requirements. . In view of the total absence of evidence concerning defendant’s knowledge, it cannot be said that the evidence establishes the defense of accidental and bona fide error as a matter of law.

The motion for rehearing is overruled.