author: STEAKLEY, Justice. PER CURIAM.

text:
    ATLAS CHEMICAL INDUSTRIES, INC., Petitioner, v. M. P. ANDERSON, Respondent.
    No. B-4834.
    Supreme Court of Texas.
    April 9, 1975.
    June 12, 1975.
    Rehearing Denied July 9, 1975.

      Strasburger, Price, Kelton, Martin & Unis, Royal H. Brin, Jr., Dallas, Joe Bailey Allen, Kilgore, for petitioner.
    Sharp, Ward & Ross, Earl Sharp, Long-view, Paul W. Anderson, Marshall, L. F. Burke, Longview, Clark, Thomas, Winters & Shapiro, Mary Joe Carroll, Austin, for respondent.
   STEAKLEY, Justice.

A jury awarded M. P. Anderson compensatory and exemplary damages for pollution to his land caused by the industrial discharge of Atlas Chemical Industries, Inc. The Court of Civil Appeals reduced the amount of compensatory damages and affirmed. 514 S.W.2d 309. We affirm the reduced award of compensatory damages but reverse and render with respect to the award of exemplary damages.

M. P. Anderson instituted this suit in June of 1968. He initially alleged that Atlas intentionally and continuously polluted Darco, Coldwater and Potter’s Creeks causing damages to his land; and that such acts of Atlas were willful and called for an award of exemplary damages. In 1970, Anderson amended his petition to seek damages for pollution occurring within the two years prior to institution of the suit. At the conclusion of the evidence, the court allowed Anderson a trial amendment seeking recovery on the basis of allegations of negligence.

The principal problem as the case reaches us is the application of the two year Statute of Limitations, Art. 5526, § l. In resolving this, as well as the other questions presented in the appeal under established precedents, we do not reach, and express no opinion on, other considerations upon which the Court of Civil Appeals wrote at some length-.

In answers to Special Issues, the jury found that Atlas discharged excessive quantities of polluted effluent into Darco and Potter’s Creeks after July 1, 1966; that said discharge was the producing cause of the damage to Anderson’s land; that Atlas was negligent in so doing which was proximate cause of the damage; that Atlas failed to provide proper purification equipment or construct settling basins after July 1, 1966, which was negligence and proximate cause; that the damage to Anderson’s property was temporary in nature; that sixty acres of Anderson’s land had decreased $10,500 in market value; that the restoration cost of the land was $45,000; that the loss of the use of the land between 1964 and 1966 was $1,500, and between 1966 and 1968 was $2,500; that Atlas acted “willfully” in polluting Anderson’s land for which he is entitled to exemplary damages in the amount of $25,000.

The trial court judgment for Anderson was in the sum of $61,375. The Court of Civil Appeals reformed this judgment so as to award Anderson actual damages in the sum of $10,500 and exemplary damages in the sum of $25,000.

As indicated, the point of error of major concern urged by Atlas is that the lower court erred in holding that the cause of action asserted by Anderson was not barred by Article 5526 that prescribes a limitations period of two years for the commencement and prosecution of an accrued cause of action for injury done to the property of another. The facts as to this will be briefly stated.

In 1922, Atlas commenced the operation of a plant in Marshall, Texas, for the purpose of manufacturing activated carbon, a purifying agent used extensively in industry. The around-the-clock process consisted of heating lignite, a species of bituminous coal, in rotary kilns and washing it down with a hydrochloric and sulphuric acid solution. The resulting dark washwa-ter of acid, fly ash, carbon and lignite particles was discharged as waste into Darco Creek, a tributary of Coldwater Creek which in turn runs into Potter’s Creek. The three streams converge on a tract of 185 acres acquired by Anderson in 1964 by gift from his father, Paul W. Anderson. The resulting deposit of the carbon wash-water on sixty acres of the tract represents the damage claim of Anderson.

Since 1961, Atlas has been under the jurisdiction of the Texas Water Quality Control Board and was issued an industrial discharge permit in May 1963, setting out the maximum water pollution allowable. In conjunction with and as a condition of the 1963 permit, Atlas began a process whereby the acidity of the washwater would be reduced and the suspended solids — fly ash, carbon and lignite — would be eliminated. Neutralization of the acid was to be of top priority and to that end calcium hydroxide, lime, was added to the washwater sometime in 1964 or 1965. Although this procedure had a neutralizing effect on the acid content, it blackened the washwater even more and increased the amount of suspended solids. As a result of the failure or inability of Atlas to meet the permit requirements, Atlas and the Texas Water Quality Board had several meetings in 1966 and 1967 that resulted in an increase in efforts to reduce the acidic content of the effluent. This had not been entirely successful by the time of trial in 1970.

Prior to submission of the case to the jury, and over the objection of Atlas, Anderson was permitted to file a trial amendment alleging negligence and recovery on the basis of these allegations was embodied in the issues submitted to the jury. We overrule the contention of Atlas that the trial court abused its discretion in allowing the trial amendment. There was substantial testimony offered without objection pertaining to the duty of Atlas to minimize the pollution in the washwater and its failure to do so. Further, Atlas offered detailed testimony concerning the complexities involved in purifying the effluent, the difficulty of the problems with which it was confronted, together with its diligence in seeking a solution. In our view, Atlas was not prejudiced in maintaining its defense upon the merits of the case by the action of the trial court in allowing the trial amendment. Cf. Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967). Texas Employers’ Ins. Ass’n v. Dillingham, 262 S.W.2d 748 (Tex.Civ.App.1953, writ ref’d, n. r. e.) cited by Altas is not in point; there the party asserting prejudice had objected during trial to the evidence in question as without basis in the pleadings.

So we reach the question of whether Anderson’s asserted cause of action in negligence was barred by the two year Statute of Limitations, and this is determined by whether the injury for which he sought damages was permanent or temporary.

The question of the temporary or permanent character of injury to land was initially conceived as an aspect of damages. At common law, a plaintiff suing for a continuing invasion of his land could recover for only those damages accrued by the time' of trial. Uline v. New York Cent. & H. R. R. Co., 101 N.Y. 98, 4 N.E. 536 (1886). To relieve the burden placed upon an aggrieved landowner to bring successive suits, the courts developed the concept of permanent injury to permit the recovery of past and future damages. Town of Troy v. Cheshire R. Co., 23 N.H. 83, 55 Am.Dec. 177 (1851); McCormick on Damages § 127, at 505. Coactive with the advantage of a future damage award was the disadvantage of bringing the action within the limitation period as measured from the first injury; i. e., the cause of action accrued for limitations purposes at the time of the first actionable injury. As Professor McCormick stated, “the plaintiff, who ought certainly to be given a continuing possibility of redress against a continuing wrong, finds himself blocked by a plea of limitations based on the claim that the only cause- of action arose when the nuisance was first established.” McCormick on Damages, § 127, at 513. See Prosser, Handbook on the Law of Torts, § 13 at 75 (4th Ed. 1971). Missouri-Pacific Ry. Co. v. Davis, 186 Ark. 401, 53 S.W.2d 851 (1932); Schlosser v. Sanitary Dist. of Chicago, 299 Ill. 77, 132 N.E. 291 (1921); McDaniel v. City of Cherryvale, 91 Kan. 40, 136 P. 899 (1913); 21 Ill.L.Rev. 629 (1927); 27 Ill.L.Rev. 953 (1933); 21 Minn.L.Rev. 334 (1936).

In Texas, it is settled that an action for permanent damages to land accrues for limitations purposes upon the first actionable injury. Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336 (1954); City of Athens v. Evans, 63 S.W.2d 379 (Tex.Com.App.1933, holding approved). Permanent damages result from an activity which is “of such a character and existing under such circumstances that it will be presumed to continue indefinitely”; “the injury must be constant and continuous, not occasional, intermittent or recurrent.” 58 Am.Jur.2d, Nuisance § 117 at 683. In Tennessee Gas Transmission Co. v. Fromme, supra, we held that the damage resulting from a continuous flow of polluted water on the plaintiff’s land for four years was permanent, as a matter of law, and that the cause of action for damages therefrom arose at its beginning. Likewise, in Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561 (1936), the court stated the facts as showing conclusively that water in a polluted condition had been continually discharged since a septic tank had been placed in operation many years before; that the polluted water had found its way upon the land in question; and that the damage caused thereby was permanent.

Temporary damages, however, have been found where the injury is not continuous but is sporadic and contingent upon some irregular force such as rain, Baker v. City of Fort Worth, 146 Tex. 600, 210 S.W.2d 564 (1948); Austin & N. W. Ry. Co. v. Anderson, 79 Tex. 427, 15 S.W. 484 (1891), and wind, Youngblood’s Inc. v. Goebel, 404 S.W.2d 617 (Tex.Civ.App.1966, writ ref’d, n. r. e.). An explication of the type of circumstance that gives rise to a finding of temporary damage, and the result of such a finding on the limitations defense, was written in Austin & N. W. Ry. Co. v. Anderson, supra:

. . . We conclude from the authorities that, where a nuisance is permanent and continuing, the damages resulting from it should all be estimated in one suit, but where it is not permanent, but depends on accidents and contingencies so that it is of a transient character, successive actions may be brought for injury as it occurs ; and that an action for such injury would not be barred by the statute of limitations, unless the full period of the statute had run against the special injury before suit. (Emphasis added.)

Accordingly, limitations commences in such instances at the time the special injury became actionable.

In the case at bar, the jury found that Atlas discharged excessive quantities of polluted effluent into the creek waters after 1966, and that the property damage in question was temporary in nature. Atlas attacks these findings as without any support in the evidence; it urges that there has been continuous pollution and consequent damage to Anderson’s land from the inception of plant operations in 1922; that the damage was permanent, as a matter of law; and that the cause of action arose at the first injury long years ago. Atlas cites as in point Tennessee Gas Transmission Co. v. Fromme, supra, in which it was stated:

A careful reading of respondent’s pleadings and the evidence introduced in the case conclusively reveals that respondent’s legal rights were invaded the moment water from the petitioner’s plant began to flow upon her land. Water was wrongfully discharged from petitioner’s plant onto respondent’s land as early as February, 1948, and continuously flowed thereon until it was diverted by acts of petitioner some time in September, 1950. Respondent’s cause of action accrued at the time petitioner began wrongfully discharging the water on the land, and not on the date when the extent of the damages to the land were fully ascertainable.

In invoking the Fromme rationale, Atlas argues that the only change in the discharge in the recent past occurred when lime was added to the effluent to neutralize the acid in 1964 and that even if this change could be the basis of a new cause of action, it arose four years prior to the suit and is barred.

We disagree and hold there was evidence to support the findings of temporary damage. Paul Anderson, M. P. Anderson’s father, testified in effect that prior to 1967 damage to the sixty acres in question had not been constant and that at the most only a four-acre area around the creek could be said to have been continuously affected by the polluted effluent.

We recognize that this and the other evidence is not very satisfactory with respect to the times and nature of unusual flooding conditions;' but viewing the evidence as a whole, it can be said that the flooding from a normal rain would not overflow and cover the sixty acres in question, whereas a three or four inch rainfall would; that the winter rains are generally the cause of the flooding; that the creeks did overflow and cover the sixty acres in 1968, as they had at times in the past; that an abnormally dense accumulation of the black lignite sediment, at some points ten inches in depth, occurred in the winter of 1967 and 1968, prior to which time the damage was principally to the creek and creekbed; and that the damaging deposits were greater and different from prior years.

In addition, testimony was elicited from Mr. Van Reenen and Mr. Briggs, the plant managers at Atlas for the relevant time periods, that Atlas began using lime to neutralize the acid in 1964 and 1965; that the lime increased the solid content of the effluent; and that in 1966 they intensified their neutralization in order to bring the acidic content of the effluent under control. Mr. Whittington, acting director of Field Operations Division of the Texas Water Quality Board testified that the maximum amount of suspended solids as set by the Board was 30 parts per million, that in August 1966, tests showed the effluent had 8410 parts per million, that in March of 1968, there were 1445 parts per million and that in September 1969, there were 449 parts per million.

These are circumstances that call for application of the rule stated by this Court in Rosenthal v. Taylor, 79 Tex. 325, 15 S.W. 268 (1891), under which it is doubtful, at the least, that Anderson could have recovered for his whole and future damage had he sought to do so. This Court there said:

. The controlling rule in actions for injuries resulting from similar nuisances would seem to be to adopt in each case that measure of damages which is calculated to ascertain in the most certain and satisfactory manner the compensation to which the plaintiff is entitled. When the injury is liable to occur only at long intervals, or when the nui-sanee is likely to be removed by any agency, the damages which have accrued only up to the time of the action will be allowed; but if the nuisance is permanent, and the injury constantly and regularly recurs, then the whole damage may be recovered at once.

This crucial element of permanence and continuity in the classification of damages for which a cause of action arises at inception, see also Austin & N. W. Ry. Co. v. Anderson, supra, distinguishes Fromme, supra, where it was expressly stated that the cause of the injury there, i. e., the water discharge from the plant, “continuously flowed” onto the land in question.

The trial court awarded Anderson total damages, actual and exemplary, in the sum of $61,375 for the period of two years prior to the filing of suit. The Court of Civil Appeals reformed this judgment so as to reduce the award of actual damages to the sum of $10,500. The actual damage award of $10,500 was held to represent the correct measure in the case, i. e., the diminution in the fair market value of the land found by the jury to be $175 per acre for sixty acres. The jury found the value of the sixty acres before July 1, 1966 to be $225 per acre and that its value was $50 per acre on or about December 1, 1969.

Atlas does not here attack the measure of the actual damages as improper; its point of error is that there is no evidence of probative force to establish the value of the damaged land at $225 per acre immediately before July 1, 1966. It is argued as to this that the appraisal witness presented by Anderson testified that the highest value of the entire tract, of which the sixty acres is a part, was $200 per acre. However, there was appraisal evidence that the sixty acres claimed to be specially damaged by the deposits left after intermittent floodings was more valuable as bottom land and had a value of from $250 to $300 an acre in an undamaged condition. The jury finding in question related to this sixty acres and, as previously indicated, the testimony of Anderson, Sr., was that the pre-1966 pollution was “in the stream, the creek, but not on the land.” There was factual basis for the jury finding in question that the sixty acres found by the jury to have been damaged by deposits of lignite and waste after July 1, 1966 had a cash market value of $225 prior to such time.

We agree with Atlas, however, in its points of error attacking the award of exemplary damages in the sum of $25,000 that was affirmed by the Court of Civil Appeals. The jury was asked to find if Atlas acted willfully toward Anderson by the pollution of the creek waters subsequent to July 1, 1966. The jury was instructed that the fact that an act is unlawful is not of itself ground for an award of exemplary damages, but it must be of a willful nature; and that by the term “willfully” is meant the intentional and purposeful disregard of the known rights of another.

Negligence or the want of ordinary care will not expose the actor to exemplary damages. Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709 (1943); Missouri Pac. Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408 (1888). Nor does a mere unlawful act suffice. Ogle v. Craig, 464 S.W.2d 95 (Tex.1971); Dennis v. Dial Finance & Thrift Co., 401 S.W.2d 803 (Tex.1966); Ware v. Paxton, 359 S.W.2d 897 (Tex. 1962) ; Jones v. Ross, 141 Tex. 415, 173 S. W.2d 1022 (1943). Instead, it is settled that there must be a showing of “gross negligence” in order to obtain exemplary damages in a negligence case. Sheffield Division, Armco Steel Corp. v. Jones, 376 S.W.2d 825 (Tex.1964). Gross negligence as defined in Shuford, supra, has been frequently cited:

Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it. (Emphasis added.)

We will assume, without approving, that the definition of “willfully” in the charge to the jury as an intentional and purposeful disregard of the known rights of others comports in effect with the gross negligence requirement of Shuford, supra, that Atlas acted with such an entire want of care as to constitute a conscious indifference to the rights of Anderson. We agree with Atlas, however, that there is no support in the evidence for the findings of the jury to such effect. The activities of Atlas were of course intentional as a part of its manufacture of industrial carbon. But there were efforts on its part to reduce the harmful quality of the effluents by accepted control devices, and to reduce and eventually eliminate the suspended solids. Atlas was under the jurisdiction of the Texas Water Quality Control Board during the period in question and had altered its procedures to neutralize the harmful acid as required under its permit. As before stated, it was also shown that from August 1966 until September 1969, Atlas had reduced the amount of suspended solids from 8410 parts per million to 449 parts per million. The fact that Atlas was not immediately successful in eliminating the harmful elements in the washwater, or that it could have done more than it did under the circumstances, does not constitute gross negligence as required for the assessment of punitive damages.

The judgment of the Court of Civil Appeals reforming the judgment of the trial court so as to award M. P. Anderson the sum of $10,500 for actual damages is affirmed; but its judgment awarding Anderson the further sum of $25,000 for exemplary damages is reversed and judgment is here rendered that Anderson take nothing as to this. Costs will be assessed one-half to each of the parties.

ON MOTION FOR REHEARING

PER CURIAM.

On rehearing and reconsideration of the record, we have determined that there is evidence to support the jury finding of willful, i. e., intentional and purposeful, disregard of the rights of others and to support the award of exemplary damages.

Atlas, through its responsible agents, knew that the plant was discharging large quantities of black sediment into Potter’s Creek. It chose to operate the plant and continue that discharge. At some point and under all the circumstances, the failure to make any correction to save downstream property owners from damage finally warrants a decision by the trier of fact that the managerial decision for this operation was made wholly without regard, and with conscious indifference, to the rights of the property owners.

In 1963 Atlas obtained a permit from the Texas Water Quality Board to discharge waste. The Board held a hearing in August of 1966 to consider the failure of Atlas to comply with the limits of suspended solids allowable in its permit. In January of 1967 the permit was amended and Atlas was given one year in which to comply with the Board’s requirements. When this case was tried in 1970 Board requirements had never been met. Instead, there is evidence that the discharge of black lignite sediment was greater in 1967 and 1968 than at any time.

In 1968 an Atlas engineer reported to the Board on operations and plans with regard to permit compliance, and the Director of Central Operations for the Board wrote a letter in response which included this paragraph:

We appreciate the fact that you have difficult problems to solve. However, we note from past reports that these problems were recognized in 1958 and by 1960, designs were being drawn up and submitted with similar reports. Over this period of years (1960-1968) there have been no apparent additional facilities for waste treatment at the Marshall plant. We are concerned that the results obtained to date are not commensurate with the eminence of your research staff.

Another hearing was held by the Board on this matter in November of 1969, at which time the Board Chairman told the Atlas people: “We don’t want any more shilly-shallying.”

Conceivably the pollution of Potter’s Creek could have continued despite efforts to correct it which, though not meeting the standard of reasonableness, would have demonstrated that Atlas acted with at least some concern for the consequences to downstream property owners. If efforts were made, this record is silent about them. For years Atlas was in violation of its state permit and doing harm to the public waters and the property of others. Atlas shows no explanation or justification and apparently did nothing of any significance to meet the problem. The jury was entitled to conclude that Atlas made the business decision to continue the discharge of its waste and did so with conscious indifference to the rights of others. Therefore we have a proper basis for an award to this plaintiff of exemplary damages.

The motion for rehearing of M. P. Anderson is granted; the motion for rehearing of Atlas Chemical Industries, Inc. is overruled. The judgment of this Court of April 9, 1975, is set aside. The judgment of the Court of Civil Appeals is affirmed.

STEAKLEY and DENTON, Associate Justices, note their dissent.

      . The reference is to Vernon’s Tex.Rev.Civ. Stat.Ann.

      . The trial court made additional findings in the judgment and reduced the damages as found by the jury.

      . Q. For purposes of the record, it is difficult to introduce this as an. exhibit, can you describe the color of it?
      A. I’d say it’s coal black, such as lignite or coal.
      Q. Is it a solid?
      A. This is a solid.
      Q. And, over what portion of your meadowland did this material cover or is it found?
      A. The entire sixty acres was covered to some degree, but it is in varying degrees, it’s not ten inches all over it, and it’s not one inch all over it, but it is found in sufficient quantities to restrict and in some areas prohibit the growth of grass.
      Q. Now, did that condition exist to any appreciable degree on this sixty-acre tract prior to 1967?
      A. Only as I before stated on about four acres.
      Q. Was there some of that on the four acres?
      A. Not very much.

      Q. All right, Now what do you see in there with reference to the damage to the land?
      A. I see this black carbonaceous, lignite, Darco, whatever it is.
      Q. Did that condition exist on that land prior to 1966?
      A. No. It was in the stream, the creek, but not on the land.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    John Will NITCHOLAS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50131, 50132.
    Court of Criminal Appeals of Texas.
    June 25, 1975.

      Kerry P. FitzGerald, Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton and Don Driscoll, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeals are taken from convictions for burglary and felony theft. The two causes were tried together upon the request of appellant. Trial was before the court upon pleas of not guilty, and punishment was assessed in each ease at two years. The record reflects that the offenses occurred on March 9, 1974, and trial was on April 25, 1974.

Appellant contends the conviction should be set aside “as there is a fatal variance between the owner’s name as spelled in the indictments and the owner’s name as proved by the evidence.” The burglary indictment alleged that “Danny Davis” was the owner of the building entered, and the same named person was alleged to be the owner of the property taken in the theft indictment. The transcription of the court reporter’s notes reflects the name of the owner in both causes to be “Denny Davis.” We conclude that the appellant could not have been misled by the eomplained-of variance. No objection was voiced during the trial that the injured party was a person other than the owner named in the indictments. We find the names to be idem sonans. Ross v. State, Tex.Cr.App., 496 S.W.2d 78; Smith v. State, Tex.Cr.App., 468 S.W.2d 824.

Appellant contends the theft conviction should be reversed for failure of the State to prove “by competent evidence that the value of the air-conditioning unit was $586.95, as alleged in the indictment.”

The record reflects that after Davis testified that he was “aware of the market value of the unit,” the following occurred:

“Q. Are you familiar with the value of this unit?
“A. Yes, I am.
“Q. What is that value?
“A. We purchased that unit, this particular unit, for five hundred eighty-six dollars and some odd cents.
“Q. Had that unit ever been used?
“A. No, it hadn’t.”

At this juncture, appellant voiced objections that the answers of the witness were not responsive and were hearsay. Appellant’s objections were overruled.

Appellant’s complaint on appeal is that there was a lack of competent evidence to prove value.

V.T.C.A. Penal Code, Sec. 31.03(d)(4)(A) provides a theft is a felony of the third degree if “the value of the property stolen is $200 or more but less than $10,000

V.T.C.A. Penal Code, Sec. 31.08(a)(1) provides value is the “fair market value of the property or service at the time and place of the offense.”

In Turner v. State, 486 S.W.2d 797, it was urged that there was an absence of proof that the article stolen had a market value of over fifty dollars so as to make it a felony under the old Code. In Turner, there was testimony from the owners that they would not take less than $55 or $60 for the machine, and that they had paid $69.88 for the machine two or three weeks before it was stolen. In Turner, no objection was voiced that there had been a failure to prove the required market value in the trial court, and this Court concluded that while the proof left something to be desired, the evidence was sufficient to sustain the allegation that the property taken was of the value of over fifty dollars. See Thomas v. State, 85 Tex.Cr.R. 246, 211 S.W. 453.

Appellant further argues that if the testimony of the witness as to the value is acceptable, the State has failed to prove the value alleged in the indictment.

The indictment alleged that the property taken was of the value of $586.95. Appellant points to the testimony of the witness that the unit was purchased for “five hundred and .eighty-six dollars and some odd cents.”

In Bergman v. State, Tex.Cr.App., 370 S.W.2d 895, in an appeal from a conviction for theft under the old Code, it was stated:

“The fact that the money was alleged to have been worth $52.96, and [was] proven to have been worth $50, was immaterial. Proof of value of $50 or over is sufficient.”

In Houston v. State, 98 Tex.Cr.R. 280, 265 S.W. 585, it was contended that there was a variance between the allegation and proof of value. It was alleged that the cotton stolen was worth $131.41, and proven that when it was taken its value was $118. The Court found there was no variance, holding that, “An allegation as to value is not held descriptive further than as it affects the question as to whether the offense be a felony or a misdemeanor.”

In the instant case, we find that there was sufficient proof that the air conditioner unit was of the value of more than $200 and less than $10,000.

The judgments are affirmed.

Opinion approved by the Court.

      . V.T.C.A. Penal Code, Sec. 31.03(d)(5) provides that an offense is “a felony of the second degree if the property stolen is $10,-000 or more.” While we find the pleadings in this cause are sufficient to support a conviction for a third degree felony, it should be noted that if the proof had shown the value of the article taken to be $10,000 or more, the indictment would limit the conviction to a third degree felony.


author: ONION, Presiding Judge. ROBERTS, Judge

text:
    Donald Ray HILLS, Appellant, v. The STATE of Texas, Appellee.
    No. 49617.
    Court of Criminal Appeals of Texas.
    June 25, 1975.
    James H. Kreimeyer, Belton, for appellant.
    Joe Carroll, Dist. Atty., William P. Gibson, Asst. Dist. Atty., Belton, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for theft from a person, wherein the punishment was assessed by the court at four (4) years following a guilty verdict.

In appellant’s sole ground of error he complains the “court erred in allowing the State of Texas to bolster its witness by use of hearsay when the witness had not been impeached. . . . ” The witness involved was Odis Rogers.

Mrs. J. C. Hilliard, 80 years old, testified that on November 5, 1973, a man snatched two bank deposit bags away from her while she was in downtown Temple in front of Zale’s Jewelry Store. She saw only the back of a bushy headed man as he fled. She was unable to make an identification of the appellant.

Odis Rogers testified he was in Zale’s Jewelry Store on the date in question when he saw a man across the street snatch the bags from a lady. He related the man had a “big Afro,” lots of hair on his face, long sideburns and a beard. He stated he knew the man by the name of “Superfly.” When asked if that man was the appellant, he replied it “looked like him.” “kind of favored him really,” but the man crossing the street had “a whole lot of hair on his face.” While it is not altogether clear from the record, it appears the appellant in the courtroom was clean shaven.

Later, he testified that a week or two after the alleged offense he had picked out a “suspect” from pictures shown him at the police station.

Subsequently, he and Officer W. T. Jackson were interrogated in the absence of the jury concerning the photographic identifieation. At the conclusion of such hearing, appellant objected on the ground that the State was attempting to impeach their own witness and also that it was an attempt to bolster the witness. The objections were overruled. No objection on the basis of hearsay was offered.

When the jury returned, Rogers testified that he made a positive identification of a picture at the police station of the man he saw coming across the street. He did not testify that the picture selected was that of the appellant. Officer Jackson was then called and testified he showed six photographs to the witness Rogers and, over the same objections earlier made, testified that Rogers selected photograph # 3 as the man involved in the theft and he (Jackson) knew such photograph to be that of Donald Ray Hills (the appellant), who was seated in the courtroom with his attorney.

First, it is observed that there was no-objection on the basis of hearsay offered at the trial, and second, on examination of Officer Jackson’s testimony in the presence of the jury reflects it was mainly concerned with Rogers’ physical action in “picking out” or “selecting” photograph # 3. It does not appear that appellant’s contention that Rogers’ identification testimony was bolstered by hearsay has merit.

The rule discussed in Lyons v. State, 388 S.W.2d 950 (Tex.Cr.App.1965), is that a witness who has identified the accused at the trial may testify he also identified the accused while in police custody or by photographs; other witnesses may not bolster his unimpeached testimony by corroborating the fact that he did identify the accused. See Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971), and cases there cited.

We do not retreat from this rule or modify it. The particular facts show that the witness Rogers testified the appellant “looked like” the man who committed the offense, but he was unable to make a positive identification. He testified further that he had at the police station selected a picture of the man he saw crossing the street, but he did not testify the picture was that of appellant. In this posture of events Officer Jackson was called to identify the picture selected as that of appellant. Under these particular circumstances, the rule in Lyons was not violated.

If, however, the identifying witness Rogers had testified he was shown a photographic spread and that he had selected a picture and that picture was one of the appellant and his testimony was undisputed, then Officer Jackson should not have been permitted to testify. Those, however, were not the facts in the instant case.

For the reasons stated, the judgment is affirmed.

ROBERTS, Judge

(concurring).

I concur in the Court’s opinion which holds that the evidence of photographic identification was admissible over the objection that it bolstered the testimony of the State’s identification witness. However, had the appellant objected to the hearsay nature of the testimony, a different situation might have been presented. See Haughton v. State, 99 Tex.Cr.R. 42, 267 S.W. 715 (1925); and compare State v. Zaragosa, 6 Ariz.App. 80, 430 P.2d 426 (1967).

      . She had already made her deposits and the bags contained only bank books at the time.


author: GREEN, Commissioner.

text:
    Kenneth ADAMI, Appellant, v. The STATE of Texas, Appellee.
    No. 49582.
    Court of Criminal Appeals of Texas.
    June 25, 1975.
    Rehearing Denied July 16, 1975.

      Mann, Cronfel & Person, Nat B. King, Oscar J. Pena, Laredo, for appellant.
    Charles R. Borchers, Dist. Atty., Donato D. Ramos and Stephen A. Whitworth, Asst. Dist. Attys., Laredo, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This appeal is from a conviction of murder with malice. Punishment was assessed at life.

The indictment charges that on or about November 22,1972, in Webb County, Texas, appellant, with malice aforethought, killed Jose Alfredo Avalos by shooting him with a rifle.

Considering the evidence most favorable to the verdict and judgment, the record reflects the following:

On November 23, 1972, officers Young and Escobedo of the U.S. Border Patrol were contacted in Freer by appellant and his companion, Edgar Williams. Appellant told the officers that on the preceding day he had a break-in at his ranch house in Webb County and had shot five men “that appeared to be Mexican aliens” with his .257 Weatherbee Magnum hunting rifle. He delivered the rifle to the officers, and volunteered to go with them to the site of the shooting. While en route he was overheard telling Williams: “That’s kind of cold blooded, but I did it and I am ready to go.”

Investigation by Young and Escobedo and other officers proved that on November 22nd five men, citizens of Mexico, who had illegally crossed the Rio Grande River into Texas several days earlier, were shot and killed while in a small house on the Adami ranch in Webb County. Jose Alfredo Ava-los, the deceased named in the indictment, was one of these men, and the evidence indicated that he was the first one who was shot.

The State’s evidence reflects that these men, seeking shelter from the cold, rainy weather, entered the house some time prior to the shooting, and that at the time they were shot they were in the kitchen eating tortillas and drinking cans of V8 juice which they had brought with them in pack-sacks. At least four of the shots were fired through a window from outside of the house, and four spent .257 magnum shells were found on the ground by the window. Two other shots were fired while the killer was inside the kitchen. Avalos was shot in the back of his head, and the top of his head was blown off. The other four were shot in varying portions of their bodies, all of which were in the posterior or back side of the mid-axillary line of the body. No firearms or other weapons were found in the house by investigating officers.

The house in which the bodies were found was pictured by State’s witnesses as appearing to be an abandoned uninhabited shack, with a large amount of accumulated dirt and animal droppings on the floor and furniture, and with grass and weeds a foot and a half high growing around it, and boards nailed across the windows. A number of photographs of the exterior and interior support the testimony of State’s witnesses.

Appellant testified that the house in question was his residence, and that he kept practically all of his personal belongings there, although he usually slept in a one room building on the ranch generally used as a feed house. He said that he had been deer hunting on the ranch the afternoon of November 22nd, carrying his .257 Weather-bee Magnum rifle with him. He arrived at his residence after dark, and noticed that a light was burning in the kitchen. He also saw that a board had been pried from a window, and realized that there had been a break-in. He approached closer to the window, and saw that the kitchen “seemed to be completely filled with rough looking men who were complete strangers to me.” They appeared to be eating his food and rummaging around among his belongings. He testified that as he was watching them through the window one of the men saw him and threw a “weapon” with all his might at him. He stated that “this sudden attack frightened me to the extent that I leaped backwards and immediately raised my rifle to my shoulder and at the same time, he turned toward the northwest corner of the room where I had left a loaded .22 rifle, and I shot him and he fell to the floor.” According to appellant, after he fired the first shot “there was a wild rush toward the window ... I felt terrified, that I was under attack” and he continued to shoot “until there was no more sign of attack in the room . . . everything was quiet.” He then entered the house, and one of the men “that was in there faking dead” grabbed his rifle, and “I jerked back and fired” and also fired another shot at one man that “attempted to leap on my back.”

The court included in his charge instructions on the law of justifiable homicide inflicted for the purpose of preventing burglary and theft at night, see Article 1222, Vernon’s Ann.P.C., infra, and on the law of self-defense.

In his sixth ground of error appellant argues that the court erred in refusing to grant his motion for an instructed verdict at the close of the evidence. The motion was based on his defense of justifiable homicide under the provisions of Article 1222, V.A.P.C.

Appellant takes the position that the evidence shows as a matter of law that it reasonably appeared to him at the time of the shooting that deceased was committing burglary or theft at night, or was about to do so, and that he shot to prevent the commission of such offense or offenses. We do not agree that the evidence established this as a matter of law. See Lorraine v. State, 163 Tex.Cr.R. 555, 294 S.W.2d 842.

To commit burglary, the entry into the house must be accompanied with the intent to commit theft, or a felony. See Articles 1389, 1390, 1391, V.A.P.C. The intent with which deceased and his companions entered was a contested issue, and was not proved as a matter of law. Likewise, although a fact issue may have been raised, the proof does not conclusively show any intent to commit theft. Likewise, the evidence fails to establish conclusively that deceeased or his companions were committing theft, or that it reasonably appeared to appellant that they were.

Appellant’s defense of justifiable homicide is based on his own testimony about the events surrounding the shooting. His testimony merely raised fact issues, and the court instructed the jury on the law concerning them. See Lorraine v. State, supra.

Furthermore, it has long been the law that Article 1222, V.A.P.C., supra, and its predecessors are not applicable to cases where the killing is upon malice. It is only when the homicide is inflicted for the purpose of preventing one of the offenses mentioned in the statute, and not where the real motive and design is to kill the deceased with malice, that one is justified under the article in taking life. McKinney v. State, 96 Tex.Cr.R. 342, 257 S.W. 258; Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279; Surges v. State, 88 Tex.Cr.R. 288, 225 S.W. 1103 (on rehearing); Laws v. State, 26 Tex.App. 643, 10 S.W. 220; Gilleland v. State, 44 Tex. 356. Also see Davis v. State, Tex.Cr.App., 467 S.W.2d 457.

In Garcia, supra, the Court said:

“If the killing was upon malice, and not to prevent a theft or the consequence of theft, it would not be justified under the statute, although a theft by night was actually being committed by the deceased at the time he was killed.” Citing authorities.

Proof of the intentional shooting of deceased with a deadly weapon is sufficient to authorize a verdict of malice. Hemphill v. State, Tex.Cr.App., 505 S.W.2d 560; Newman v. State, Tex.Cr.App., 501 S.W.2d 94; Taylor v. State, Tex.Cr.App., 470 S.W.2d 693; Mendiola v. State, 158 Tex.Cr.R. 621, 259 S.W.2d 192. The jury found from the evidence that appellant acted with malice in shooting deceased.

The trial court correctly overruled appellant’s motion for an instructed verdict. The sixth ground of error is overruled.

Appellant’s seventh and eighth grounds of error raise the contention that the court’s charge erroneously instructed the jury on justifiable homicide under the provisions of Article 1222, V.A.P.C. enumerated, supra. Appellant states in his brief as to these two grounds of error:

“The evidence with respect to appellant’s defense of justifiable homicide under Art. 1222 P.C. (in effect at the time in question) is undisputed. Thus, the foregoing grounds of error present this question solely with a question of law.”

We have heretofore found that appellant’s evidence is not undisputed, and that issues of fact were raised concerning the application of the statute.

The court’s charge on appellant’s defense that he shot deceased for the purpose of preventing burglary and theft at night properly and sufficiently explained the law as set forth in Article 1222, V.A.P.C., supra, and fully protected appellant’s rights in that respect.

The seventh and eighth grounds of error are overruled.

As stated by appellant in his brief, his ninth, tenth, eleventh, twelfth and thirteenth grounds of error “all turn on appellant’s position that under the undisputed facts as presented in the court below, malice or previously formed intent or plan (1) was not present in this case which conclusively demonstrated justifiable homicide under then Article 1222, P.C., and (2) the State failed to prove malice beyond a reasonable doubt. Thus they are presented together.”

As we have previously stated, the defense of justifiable homicide was injected into the case by the testimony of appellant. The jury, as the triers of the facts, had the option of believing all of appellant’s testimony, none of it, or any portion of it. Pope v. State, Tex.Cr.App., 505 S.W.2d 556.

The State’s evidence presents a case of an unprovoked killing of five unarmed men by shooting them in the back portion of their heads or bodies with a high powered hunting rifle at close range. Thereafter, the appellant made the remark, “That’s kind of cold blooded, but I did it, and I am ready to go.” As heretofore stated, the evidence raised the issue of intent and malice, and the court did not err in charging on murder with malice. Article 45, V.A.P.C.; Hartman v. State, Tex.Cr.App., 507 S.W.2d 553; Hemphill v. State, Tex.Cr.App., 505 S.W.2d 560; Machado v. State, Tex.Cr.App., 494 S.W.2d 859.

The ninth, tenth, eleventh, twelfth and thirteenth grounds of error are overruled.

Appellant, in his fourteenth ground of error contends that the court erred in admitting in evidence his statements that (1) he had shot five men who appeared to be Mexican aliens, and (2) that it was kind of cold-blooded, but he had done it and was ready to go. He claims that he was at that time under arrest, and that he reasonably considered himself in custody and deprived of his freedom, and that he had not been advised of his Miranda and Article 38.22, V.A.C.C.P., rights.

A hearing was had in the absence of the jury to determine the admissibility of these statements. The record reflects that appellant was not under arrest or in custody and did not reasonably consider himself to be deprived of his freedom of movement at the time the statements were made. As we stated in Tilley v. State, Tex.Cr.App., 462 S.W.2d 594, “We hold that at this stage of the investigation the record reveals that there was not a shift from the investigatory to the accusatory or custodial stage.” See also Steele v. State, Tex.Cr.App., 496 S.W.2d 66; Brown v. State, Tex.Cr.App., 475 S.W.2d 938, 950-957; Jones v. State, Tex.Cr.App., 442 S.W.2d 698; Taylor v. State, Tex.Cr.App., 420 S.W.2d 601. Cf. Ancira v. State, Tex.Cr.App., 516 S.W.2d 924.

The record shows that the remarks of appellant were volunteered by appellant while he was not in custody or under arrest, and while he did not reasonably so consider himself. The court did not err in finding the statements were made voluntarily, and in ruling them admissible.

The fourteenth ground of error is overruled.

In his fifteenth ground, appellant complains of the failure to define the term “occupant” in the charge. “Occupant” appears in the charge only once, where, in defining the term “burglary” in connection with appellant’s defensive issue that he shot to prevent burglary, the charge read:

“By the term ‘entry into a house’ is meant every kind of entry but one made with the free consent of the occupant

“Occupant” is a word of everyday usage and its meaning is a matter of common knowledge. Cf. Ramirez v. State, Tex.Cr.App., 518 S.W.2d 546; Wells v. State, Tex.Cr.App., 516 S.W.2d 663. The court did not err in declining to define it.

Appellant also contends that the court erred in failing to instruct the jury that it is not necessary to actually take property in order to constitute burglary. The court’s definition of burglary together with its explanatory remarks concerning “breaking,” “entry into a house,” “intent to commit theft” and “burglarious intent” make it clear that property need not be taken in order to constitute burglary.

The fifteenth ground of error is overruled.

In his sixteenth ground, appellant contends that the court committed reversible error in overruling his challenges for cause to jurors Roberson and Woodal. He asserts that, as a result, he was forced to accept these two objectionable jurors, since he used all of his peremptory challenges on other members of the panel.

The panel members were examined separately, and the jury was selected after the required number had qualified. Appellant peremptorily struck ten members of the panel, but did not strike Roberson or Woo-dal, and both served on the trial jury.

As to Roberson, appellant contends she became subject to challenge for cause when she stated, in answer to a question by defense counsel, that she had doubts as to whether or not she could follow the court’s instructions on appellant’s defensive theory of justifiable homicide. When she made this answer, an unreported conference was had at the bench, but the record does not show any challenge at that time. After the conference at the bench, the court stated that he didn’t think she understood the question, and after explaining to her that he would instruct the jury as to the law applicable to the evidence, she stated that she would follow the court’s instructions as given in the charge, whether she liked it or not, and be governed by such instructions. Appellant’s challenge for cause, first made in the record at this time, was overruled. Although opportunity was given appellant to continue to examine Roberson, he did not do so. No error is shown.

Juror Woodal, on voir dire, stated he had formed an opinion from what he had heard and read concerning appellant’s guilt or innocence, and at first equivocated some as to whether it would influence his verdict. However, he stated definitely upon examination by the court that he would not, as a juror, be influenced by anything he had heard or read about the case, and in answer to a question by defense counsel, answered as follows:

“Q I gather then that you feel that even though you have had previous exposure that you can overcome that and try to render a fair and impartial verdict, based on what you hear here in the courtroom, and not what you heard previously?
“A I think I can, I know I can.
“Q You know you can?
“A Yes.”

The testimony of Woodal on voir dire, when taken as a whole, does not reflect that he was disqualified from serving on the jury. Scott v. State, Tex.Cr.App., 490 S.W.2d 578.

Furthermore, as to appellant’s contentions concerning jurors Roberson and Woodal, the record does not reflect that appellant requested additional peremptory challenges to use on these jurors, or that the court would not have given additional challenges if request had been made. In Sifford v. State, Tex.Cr.App., 505 S.W.2d 866, the Court stated:

“Assuming the record shows that the prospective juror was subject to challenge for cause, it does not reflect that the appellant requested an additional challenge after he had exhausted all of his peremptory challenges, or that he was forced to take an objectionable juror. No error is shown. See Williams v. State, 481 S.W.2d 119 (Tex.Cr.App.1972); Bayless v. State, 166 Tex.Cr.R. 479, 316 S.W.2d 743 (1958).”

See, also, Chappell v. State, Tex.Cr.App., 519 S.W.2d 453; Ward v. State, Tex.Cr.App., 505 S.W.2d 832; Hollis v. State, Tex.Cr.App., 509 S.W.2d 372; Story v. State, Tex.Cr.App., 502 S.W.2d 764.

The sixteenth ground of error is overruled.

In five grounds of error, appellant contends that the court erred in overruling his motion for a change of venue.

In his said motion, supported by affidavits of two compurgators, appellant alleged (1) that there existed in Webb County so great a prejudice against him that it was improbable he could obtain a fair and impartial trial, and (2) due process of law and appellant’s constitutional guarantee of trial by a fair and impartial jury would be denied if he were put to trial to a jury in Webb County because there was a reasonable likelihood of prejudice both against the appellant personally and against his case.

A hearing was had on appellant’s motion to change the venue, and the State’s reply thereto, on April 5, 1973, four and a half months after the commission of the offense and three months eleven days before the trial began on July 16, 1973. At the hearing, it was stipulated that the population of Webb County in 1971 was 72,500, with 70,-000 being residents of Laredo, and in 1972, the same ratio existed as to Laredo and the county, with the population of Laredo being between 70,000 and 75,000. The district clerk of Webb County testified that in 1972 approximately 23,000 names of prospective jurors were placed in the jury wheel. The evidence reflects that approximately 85% of the population of Webb County had surnames of Latin-American origin.

Appellant called as witnesses a number of people in the news media, including representatives of The Laredo Times, the local television station, and the local radio station. Copies of articles concerning the killing from the November 24 to 29th, inclusive, editions of The Laredo Times, with photographs, were placed in evidence. The paper had a circulation of about 12,500 in Webb County. Bill Baker, publisher of The Times, testified that he did not consider that the articles were of such a nature as to prevent appellant from securing a fair and impartial trial in Webb County. We find, from a review of these articles, that although they reflect a very serious and tragic occurrence of great news interest to the public, they appear to present a fair, noninflammatory account published for the purpose of informing the public of current events, and that the articles gave publicity to appellant’s contention that he shot to prevent theft and burglary, as well as to the State’s claim of murder.

James Cathey, general manager of the local television station, identified copies of broadcasts of November 23, 24, 25, 26, 27 and 28 concerning the offense. Although he had talked to many local citizens about the occurrence and found sentiment to be strongly against appellant, he had not talked to anyone who was on the witness list, and felt that he could render a fair and impartial verdict as a juror, and stated: “I certainly think an Anglo man who shoots a Mexican can get a fair trial in Webb County.” Cathey said that the television broadcasts were strictly factual, and were not distorted or inflammatory. We agree.

On the other hand, L. H. Guerra, newscaster for the station, who had talked to about eighty people, mostly in 1972, about the case, thought that there was racial prejudice against appellant, and that it was not probable that he could get a fair trial in the county.

Dave Gearheart, news director of the KVOZ radio station in Laredo, identified transcripts of radio broadcasts of November 23-29, inclusive, concerning the killing, which were introduced in evidence. He did not consider the newscasts to be inflammatory. We have reviewed them, and find that they, like The Times’ accounts, also appear to present a fair, noninflammatory account of the case.

John Smally, news director of KLAR radio station in Laredo, identified the transcripts of the newscasts of that station on November 23 to 29, inclusive, concerning this case. We reach the same conclusions of these as we do to the newscasts of KVOZ.

Lezandro Guerra, Jr., who said he had talked to about 80 or 90 people in the county about the killing, three-fourths of the conversations in 1972, was definitely of the opinion that there was race prejudice against appellant, and that he probably would not receive a fair trial from a jury in the county. He stated that the further in time from the date of the offense, the less the talk of the case.

Evan B. Quiros, a rancher and businessman, had heard people talking about the offense frequently right after it happened, but less frequently “lately.” He had talked about the killing with about 80 people altogether, all of their remarks being unfavorable to appellant. His own opinion was unfavorable. He did not consider the publicity given the case by the news media to be prejudicial or inflammatory, but did find that the majority of those he had talked with “had a very strong opinion about it.” He had not talked to any of those called as witnesses in the case, and he did not think that the people with whom he talked had.

Felix Garcia, a banker, another witness, had talked with about 50 people about this • killing. These conversations were frequent in the beginning, but became less frequent, as time passed. Some of the talk was about a prior conviction of appellant on a murder charge. Most of the people with whom he had talked had formed an opinion unfavorable to appellant.

Eloy Garcia, a Laredo businessman, had heard many unfavorable remarks concerning appellant and had discussed his prior conviction of murder. In his opinion, appellant could not receive a fair trial in Webb County. He felt that the people he had talked to were influenced by pictures in the newspapers.

Amber Yeary, also called to testify by appellant, stated that he had heard much discussion of the case, more frequently close to the time of the occurrence, and had discussed with others appellant’s prior conviction. From his talk with customers and friends, he had reached the opinion that “if they are proportionate representation of the county as a whole” it would be very difficult for appellant to have a fair trial in Webb County. He agreed that the fact that he was doing business with a large number of citizens of Mexico had some influence on his opinion.

Webb County is located on the border between Texas and Mexico, and the city of Nuevo Laredo is just across the Rio Grande in Mexico. Admitted in evidence were extracts from the November 25-30, inclusive, edition of El Diario, a newspaper published in Nuevo Laredo in the Spanish language. We have reviewed the translations of these articles and have seen the photographs accompanying them, and find the articles and photographs much more inflammatory and prejudicial against appellant and less newsworthy than the articles from The Times and the transcripts of the television and radio broadcasts. Although El Diario had a circulation of about 2,000 in Webb County, there was little evidence of any influence its articles had on qualified jurors of Webb County.

At noon on April 5, the court announced that it would hear no more evidence at this pre-trial hearing, but said: “I will hear further evidence if you have any to present on April 23rd in connection with your motion for change of venue.” The court also announced that it would wait until after the voir dire of the jury panel before ruling in order to determine the difficulty of securing a fair and impartial jury in Webb County. Appellant requested the court to rule on the evidence then before it, and excepted to his refusal to do so.

On July 16, when the case was called the court announced before the examination of the jury panel that it would hear appellant’s motion. Appellant introduced further record evidence, including a copy of The Laredo Times for November 26 and translations of the copies of El Diario previously introduced. Appellant again asked the court for a ruling on his motion for a change of venue, but the court again stated that he would make his ruling when the voir dire examination of the jury panel was completed.

The record of the voir dire of the jury panel is before us. It reflects that 33 jurors qualified for service on the jury out of a total of 72 veniremen examined. Of these 72, eighteen disqualified because they had formed an opinion of the guilt or innocence of the accused. Five were excused on challenge by the State for answering that the absence of an eyewitness to the killing would cause them to have a reasonable doubt, regardless of other evidence. Three stated they would be prejudiced against the victims who had entered this country illegally. Two were prejudiced against the law of justifiable homicide. Others were excused by the court by agreement of counsel for equitable reasons. Appellant cites only two instances in which members of the panel were ruled qualified to serve over his objection, these being Roberson and Woodal mentioned in his sixteenth ground.

It is appellant’s contention that the undisputed evidence established the truth of his allegations as evidenced by:

(1) widespread and inflammatory coverage by the local news media, to-wit, radio, television and newspapers;

(2) widespread discussion of the facts of the case by and among citizens of the county; and

(3) racial prejudice against appellant.

Appellant also contends that the court erred (2) in “abruptly” terminating the hearing on April 5 before he had introduced all of his evidence; (3) also in refusing to rule on the motion at the close of the hearing; and (4) in denying the motion to change venue at the close of the voir dire of the jury panel.

Although the State did not place any witnesses on the stand it did vigorously cross-examine appellant’s witnesses. As a result, as demonstrated in the above summary, the evidence does not establish beyond dispute that appellant would not be likely to obtain a fair and impartial trial before a Webb County jury. The trial court did not commit error in holding its ruling on a change of venue in abeyance pending the examination of the jury panel and stating that it would change the venue on its own motion if it found from the pre-trial evidence and the voir dire of the panel that a fair and impartial trial could not be had in Webb County. See Garcia v. State, Tex.Cr.App., 513 S.W.2d 82; Bridges v. State, Tex.Cr.App., 471 S.W.2d 827; Clemons v. State, Tex.Cr.App., 398 S.W.2d 563, cert. den., 384 U.S. 1015, 86 S.Ct. 1974, 16 L.Ed.2d 1037, reh. den., 385 U.S. 894, 87 S.Ct. 25, 17 L.Ed.2d 128; Hagans v. State, Tex.Cr.App., 372 S.W.2d 946; Phillips v. State, 168 Tex.Cr.R. 463, 328 S.W.2d 873.

We recognize that the question of a change of venue is one of constitutional dimension and the test to be applied by the court is no longer whether prejudice found its way into the jury box at the trial. See Bridges v. State, supra. In Morris v. State, 488 S.W.2d 768 (Tex.Cr.App.1973), the Court quoted from Pamplin v. Mason, 364 F.2d 1 (5th Cir.) as follows:

“ ‘As we read the Supreme Court cases, the test is: Where outside influences affecting the community’s climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue, to assure a fair and impartial trial. As the Supreme Court stated in Sheppard v. Maxwell [384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600]:
‘ “Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused, * * * [W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. * * * If publicity during the proceeding threatens the fairness of the trial, a new trial should be ordered.” 384 U.S. at 362, 86 S.Ct. at 1522, 16 L.Ed.2d at 620.”’ (Emphasis added).

The opinion in Morris continues:

“In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, Justice Clark, speaking for the Court, wrote that it is not required that jurors be totally ignorant of the facts and issues involved in this day of widespread and diverse methods of communication. He also noted that an important criminal case can be expected to arouse interest of the public in the vicinity and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.
⅝ ⅝ ⅝: ⅜: ⅝: ⅜
“Our courts cannot and do not operate in a vacuum. Courts deal with people and crimes which are newsworthy. To require a trial of jurors who had never heard of a highly publicized crime would be impractical if not impossible. Certainly, it was never intended that jurors were to be selected from those who did not read newspapers or keep up with current events through other media. Jurors selected from such a group, if there are enough to be called a group, would not be representative. To hold otherwise would be to hold that the perpetrator of a very highly publicized crime such as the assassination of a president, a governor or any widely known person could never be tried.”

See, also Garcia v. State, supra; Creel v. State, Tex.Cr.App., 493 S.W.2d 814; Taylor v. State, Tex.Cr.App., 420 S.W.2d 601.

It is significant in view of the emphasized portion of the above quote that the witnesses at the pre-trial hearing stressed the fact that most of the publicity and talk of the instant case occurred at the time or shortly after the offense occurred, and decreased later. The hearing was held four and a half months after the killing and over three months before the trial. Thus, almost all of the publicity and most of the discussion proved at the hearing occurred between seven and eight months prior to the trial. This was also noted by the Court in Clifford v. State, Tex.Cr.App., 424 S.W.2d 233, when it said:

“We also note that the jury was not selected until some 4 months after the hearing on the motion for change of venue, 5 months after the trial in Denton County, and some 10 months after the killing and assault.”

As to appellant’s contention that the publicity that he had theretofore been convicted of another murder prejudiced his case, evidence of such conviction was admitted at the guilt stage of the trial without objection, and the trial jurors had this fact before them in their deliberations.

We have considered all of the contentions made by appellant in these five grounds of error and find that reversible error has not been shown. Having considered the evidence introduced at the pre-trial hearing, examined the contents of the newspapers, television and radio coverage in evidence, and read the voir dire of the jury panel and noticed the lack of difficulty in securing a qualified jury, we conclude that when the test set forth in the cases heretofore cited is applied the court did not abuse its discretion in overruling appellant’s motion for a change of venue either at the end of the pre-trial hearing or at the close of the voir dire examination.

The judgment is affirmed.

Opinion approved by the Court.

      . The pathologist who performed the autopsies testified that the mid-axillary line divides the body in halves, from armpit to armpit.

      . However, he testified that “they evidently carried a few tortillas, from experience I have had with other ones.”

      . Appellant on cross-examination identified this “weapon” as being a 14 inch long file with a pointed end that he used in chopping arrowheads.

      . Article 1222, V.A.P.C., as it read at the time of the offense and trial, read, in part:
      “Homicide is justifiable when inflicted for the purpose of preventing burglary and theft at night when the killing takes place under the following circumstances:
      “1. It must reasonably appear by the acts or by words coupled with the acts of the person killed that it was the purpose and intent of such person to commit one of the offenses above named.
      “2. The killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense.
      “3. It must take place before the offense committed by the party killed is actually completed, except that in case of rape the ravisher may be killed at any time before he has escaped from the presence of his victim, and except also in the cases hereinafter enumerated.
      * * * * * *
      “8. In cases of burglary and theft by night, the homicide is justifiable at any time while the offender is in the building or at the place where the theft is committed, or is within reach of gunshot from such place or building.”

      . The trial was originally set for April 23rd. However, after this hearing, on motion of appellant it was continued, and reset for July 16th.

      . In both Garcia v. State and Clifford v. State the Court took note of the fact that the defendant was satisfied enough with the jury to elect to have it assess the punishment.


text:
    David Glenn WILLIAMS, Appellant, v. The STATE of Texas, Appellee. Donna Sonka WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50090, 50091.
    Court of Criminal Appeals of Texas.
    June 25, 1975.
    Rehearing Denied July 16, 1975.

      Paul W. Leech, Grand Prairie, for appellants.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr. and Jay Ethington, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeals are taken from convictions for possession of marihuana. The record reflects that the offenses in question occurred on May 30, 1973. Appellants, man and wife, were tried jointly before the court on April 19, 1974. Appellants elected to be punished under the Controlled Substances Act and each was assessed punishment of ten days in jail and a fine of $250.00.

At the outset, appellants contend that the court erred in admitting statements made by appellants while under arrest.

Officers, armed with a search warrant, searched a residence at 2006 Baliaway in Grand Prairie at approximately “2:00 or 2:30” on the afternoon of May 30, 1973. The officers observed marihuana plants growing in the back yard. No one was at the residence at this time and the officers, after gaining entrance to the house, found “marijuana seeds in a small Bufferin bottle . a water pipe used to smoke marijuana ... a marijuana pipe.” In addition, marihuana seeds were found “in the middle of the table” in the living room. About “4:25, 4:30” the same afternoon, officers returned with warrants of arrest. Mrs. Williams responded to the officers’ knock on the door. After the officers identified themselves and gained entrance, the officers asked the appellants who they were. Officer Mezzell testified that he then asked appellants if they lived there, and they responded that they did. Mezzell stated that appellants were not placed under arrest until after they stated that they lived at the address in question. Immediately after appellants were placed under arrest, Williams volunteered, “You don’t have to arrest my wife. Those plants belong to me. I planted them and grew them.”

Appellants’ contention is directed solely to the statement that appellants made in response to the officer’s question whether they lived in the house in question.

There is nothing in the record to suggest that the officer knew the identity of appellants or who lived in the house. The officer’s testimony reflects that he asked the appellants who they were and if they lived at the residence where the marihuana was found. It was not until after appellants had responded to these questions that they were placed under arrest. Thus, the complained-of statement of appellants was elicited during the investigatory process and prior to arrest. We find that such statements were not made as the result of custodial interrogation, and that the statements of appellants were admissible in evidence against them. Graham v. State, Tex.Cr.App., 486 S.W.2d 92; Sutton v. State, Tex.Cr.App., 419 S.W.2d 857; Miller v. State, Tex.Cr.App., 396 S.W.2d 128; Davis v. State, 168 Tex.Cr.R. 588, 330 S.W.2d 443; Nixon v. State, 406 S.W.2d 445.

Appellants contend the evidence was insufficient to support the convictions in that “the alleged drugs and these defendants were never at the same time in the same place.”

Possession of narcotics need not be exclusive and evidence which shows that the accused jointly possessed the narcotic with another is sufficient. Curtis v. State, Tex.Cr.App., 519 S.W.2d 883; Simpson v. State, Tex.Cr.App., 486 S.W.2d 807; Valdez v. State, Tex.Cr.App., 481 S.W.2d 904; Shortnacy v. State, Tex.Cr.App., 474 S.W.2d 713; Ochoa v. State, Tex.Cr.App., 444 S.W.2d 763. Mere presence at a place where narcotics or dangerous drugs are possessed does not in itself justify a finding of joint possession. Curtis v. State, supra; Valdez v. State, supra. The evidence must affirmatively link the accused to the contraband in such a manner that a reasonable inference arises that the accused knew of its existence and whereabouts. Curtis v. State, supra; Hineline v. State, Tex.Cr.App., 502 S.W.2d 703; Williams v. State, Tex.Cr.App., 498 S.W.2d 340.

In the instant case, the evidence reflects that appellants lived at the residence in question. The record is devoid of evidence that anyone else occupied or had access to the house. Marihuana seeds were found in the middle of a table in the living room, narcotic paraphernalia was in the house, and a bottle containing marihuana seeds was seized in a search of the residence. The marihuana plants in the back yard had been “hoed and cultivated pretty good.” Some of the plants were “approximately four foot tall and there was some down to a foot and a half tall.” Mezzell stated that the plants were in plain view.

We conclude that the evidence affirmatively links appellants to the marihuana and find that the evidence is sufficient to support the convictions. See Curtis v. State, supra; Valdez v. State, supra.

Appellants contend that the State’s proof fails to show “that the evidence was Cannabis sativa L.”

A stipulation was entered into between the prosecutor, attorney for appellants, and the two appellants that the chemist who performed the analysis on the substances in • question would testify that he

“does not know or have knowledge of the methods for determining the difference between the, either subspecies or subgen-us of different types of marijuana and that he is familiar with the term canabus setiva (sic) and canabus endecia (sic), but in his opinion marijuana is all one class and that the evidence seized out here and turned over to him, the evidence in this case that was seized at the Williams’ residence and turned over to him was, in fact, marijuana, and he would not say definitely that this evidence here is cana-bus setiva L (sic).”

While the conduct prosecuted herein occurred before the effective date of the Controlled Substances Act on August 27, 1973, trial was not until April, 1974. Under old code Art. 725b(14), cannabis was listed as a narcotic drug.

Under the Controlled Substances Act, Sec. 1.02(17), marihuana “means the plant Cannabis sativa L.” While appellants have not developed any argument under this ground of error, it would appear to be their position that Section 6.01(b) of the Controlled Substances Act, Vernon’s Ann.Civ. St., Art. 4476-15, is applicable, which reads:

“Conduct constituting an offense under existing law that is no longer an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that does not constitute an offense under this Act, the action is dismissed of the effective date of this Act.”

Thus, it would appear to be appellants’ position that in any prosecution after the effective date of the Controlled Substances Act for possession of marihuana, it is incumbent upon the State to show not only that the substance is marihuana but further that it is Cannabis sativa L. Assuming, arguendo, that appellants’ premise that the State’s evidence must meet the burden of proof set forth in the new Act, we examine the question presented.

21 U.S.C. Sec. 802(15), provides in part, “The term ‘marihuana’ means all parts of the plant Cannabis sativa L.” A review of the definition of marihuana under the federal code and under the new Controlled Substances Act reflects they are virtually identical.

In United States v. Gaines, 489 F.2d 690 (1974 — 5th Cir.), it was stated:

“Gaines further urges that it was error for the trial court to refuse to instruct the jury as to the statutory definition of marihuana. We disagree and affirm.
“Noting that the federal statutory definition of marihuana refers only to Cannabis sativa L., Gaines calls our attention to the fact that while the Government’s expert chemist agreed that there are three species of marihuana, i. e., Cannabis sativa L., Cannabis indica, and Cannabis ruder-alis, the chemist was unable to differentiate between the three. Building upon the premise that Cannabis sativa L. is the only species of marihuana expressly prohibited by statute, Gaines argues that the court’s refusal to give the jury an instruction containing the statutory definition of marihuana deprived the jury of considering whether the Government’s expert was sufficiently trained and whether he sufficiently tested the substance to prove beyond a reasonable doubt that in fact the substance examined was Cannabis sa-tiva L. and not Cannabis indica.
“The Third Circuit recently considered the issue raised by Gaines and concluded that Cannabis indica is included within the statutory definition of marihuana. United States v. Moore, 8 Cir. 1971, 446 F.2d 448. Similarly, the Second Circuit, while recognizing the possibility that there may be some botanical opinion that Cannabis is polytypal, found that ‘there is no question but that the lawmakers, the general public and overwhelming scientific opinion considered that there was only one species of marihuana Whether this is scientifically exact or not, the statute provided at the time of the offense a sufficient description of what was intended to be prohibited to give notice to all of the illegality of appellant’s actions.’ United States v. Rothberg, 2 Cir. 1973, 480 F.2d 534, 536.
“We are in full agreement with what has been said by our sister Circuits, and thus find no error in the district court’s refusal to instruct the jury with respect to the statutory definition of marihuana.”

In United States v. Walton, 514 F.2d 201 (1—2375), the U. S. Court of Appeals for the D. C. Circuit rejected an argument that the government had failed to meet its burden of proof under 21 U.S.C. Sec. 802(15) in that it was not shown that the marihuana was Cannabis sativa L. The court rejected this contention, stating: “We think the fact that 21 U.S.C. Section 802(15) defines marihuana as Cannabis sativa L. is not sufficient to support the contention that Congress meant to outlaw the distribution of only one species.” In Walton, it was stated:

“Thus, Walton’s argument is that Congress meant to outlaw the euphoric effects of the sativa L. species but not the euphoric effect of other species. This result seems manifestly unreasonable and furthermore could raise the most serious equal protection problems if it were adopted, i. e. an individual convicted for distribution of sativa L. could state with more than a little justification that no legitimate legislative purpose permits the government to jail persons who obtain a THC ‘high’ from sativa L. but to not prosecute persons who obtain the exact same ‘high’ from another species. Moreover, Walton’s expert concedes that at present there is no reliable biochemical or spectrographic method for distinguishing between the various species of marijuana. Thus, unless the government has access to the growing plant, an unlikely situation, it can not at present prove that a given defendant possesses one kind of marijuana or another. It may be that the government has the capacity to develop a method but since Congress did not have the benefit of any such method when it enacted the statute in issue here, one must certainly pause to consider why Congress would enact a law the violations of which could not [be] proven on the basis of present knowledge. Even if Congress did have such a method, it is apparently conceded that only citizens with expert botanical knowledge could distinguish between the various species of marijuana. This suggests a serious due process question: could the government prosecute an individual for possession of sati-va L. when there are no means whereby the average citizen can distinguish between sativa L. and other species to thus conform his conduct to the requirements of the law? It presses us to extremes to hold that Congress would enact a law the violations of which are not detectable to the group of citizens to whom the law is addressed.”

In Walton, it was further noted that every federal appeals court which had considered this question had reached a similar conclusion, the following cases being cited. “United States v. Honneus, 508 F.2d 566 (1st Cir. 1974); United States v. Kinsey, 505 F.2d 1354 (2d Cir. 1974); United States v. Gaines, 489 F.2d 690 (5th Cir. 1974); United States v. Rothberg, 480 F.2d 534 (2d Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106 (1973), aff’g, 351 F.Supp. 1115 (E.D.N.Y.1972); United States v. Moore, 446 F.2d 448 (3d Cir. 1971), aff’g, 330 F.Supp. 684 (E.D.Pa.1970). See also State v. Romero, 74 N.M. 642, 397 P.2d 26 (1964); People v. Savage, 64 Cal.App.2d 314, 148 P.2d 654 (1944); Martinez v. People, 160 Colo. 333, 417 P.2d 485 (1966); State v. Alley, 263 A.2d 66 (Me.1970); State v. Allison, 466 S.W.2d 712 (Mo.1971); State v. Economy, 61 Nev. 394, 130 P.2d 264 (1942).”

In Walton, it was recognized that the definition of marihuana set forth in 21 U.S.C. Sec. 802(15) was carried forward from the Marihuana Tax Act of 1937 without comment. It is further noted in Walton that there was no suggestion until the late 1960’s that there was a possibility that marihuana had a polytypal status. Walton recognizes that such issue is still very much in doubt. We have been unable to find that the Legislature of Texas had the benefit of any method to distinguish between species of marihuana as defined in the Controlled Substances Act when it passed the statute in question. We cannot conclude that the Legislature of Texas intended to limit offenses relating to marihuana to those cases in which it was shown that the species involved was sativa L. and exempt other species, if indeed there are various species of marihuana. We are persuaded by the soundness of the numerous federal appeals court opinions in rejecting identical arguments advanced under a similar statute.

In the instant ease, the record contains evidence in the form of a stipulation of the testimony of the chemist that the substance in question was marihuana and the opinion testimony of an officer with a number of years’ experience in observing marihuana that the seeds and plants recovered in a search of appellants’ house were marihuana. We find this to be sufficient proof that the substance possessed by appellants was marihuana as that term is defined in the Controlled Substances Act. We reject appellants’ contention that the evidence was insufficient to sustain the conviction in that the marihuana was not shown to be of the Cannabis sativa L. species.

Appellants’ last contention that the evidence is compatible with one of the appellants being guilty but not both has been answered adversely to appellants in their second contention challenging the sufficiency of the evidence to support the conviction.

The judgments are affirmed.

Opinion approved by the Court.

      . Section 1.02(17) of the Controlled Substances Act provides:
      “ ‘Marihuana’ means the plant Cannabis sativa L., whether growing or not; the seeds thereof; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, or its seeds. However, it does not include the resin extracted from any part of such plant or any compound, manufacture, salt, derivative, mixture, or preparation of the resin; nor does it include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.”
      21 U.S.C. Sec. 802(15), provides:
      “The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”


author: DOUGLAS, Judge.

text:
    Roel Garza MUNOZ, Appellant, v. The STATE of Texas, Appellee.
    No. 50077.
    Court of Criminal Appeals of Texas.
    June 25, 1975.

      Cornelius B. Marsh, IV, Edinburg, for appellant.
    Oscar B. Mclnnis, Dist. Atty., and Jerry E. Andress, Asst. Dist. Atty., Edinburg, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder. Punishment was assessed by the court at fifteen years.

Alicia Mata testified that appellant and Ricardo Gonzalez got into an argument at the La Esquina Bar in McAllen on May 15, 1973. A short time later Gonzalez was shot outside the bar. He died a few hours later in the McAllen hospital as a result of gunshot wounds.

The sufficiency of the evidence is not challenged.

Appellant complains of the admission into evidence of a dying declaration and of a purported refusal of the jury foreman to ask that the testimony concerning the dying declaration be read.

Officer Alejandro Longoria testified that he arrived at the emergency room of the McAllen hospital shortly after Ricardo Gonzalez was admitted. Officer Longoria asked Gonzalez, “What had happened.” Gonzalez said, “Role shot me. * * * Role Munoz at LaEsquina Bar. He is the owner. He shot me. Please help me. I’m dying. * * * . . . Because of some marihuana. He thinks I turned him in.”

Article 38.20, Vernon’s Ann.C.C.P., provides:

“The dying declaration of a deceased person may be offered in evidence, either for or against a defendant charged with the homicide of such deceased person, under the restrictions hereinafter provided. To render the declarations of the deceased competent evidence, it must be satisfactorily proved:
“1. That at the time of making such declaration he was conscious of approaching death, and believed there was no hope of recovery;
“2. That such declaration was voluntarily made, and not through the persuasion of any person;
“3. That such declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement; and “4. That he was of sane mind at the time of making the declaration.”

Officer Longoria testified that Gonzalez repeatedly told him that he “was dying.” Longoria also testified that Gonzalez appeared to be “rational.” The declaration was not made in response to leading or suggestive questioning and the record reflects that the statement was voluntary. We conclude that the dying declaration of Ricardo Gonzalez was admissible under Article 38.20, supra. See Whitson v. State, 495 S.W.2d 944 (Tex.Cr.App.1973). The fact that this declaration might have mentioned a possible extraneous offense on the part of appellant does not keep it from being admissible. Dying declarations usually have at least as much reliability as the so-called res gestae statements. In the spontaneous or res gestae statement cases, we have held that the fact that an extraneous offense is mentioned in such a statement does not render the statement inadmissible. See Holcomb v. State, 484 S.W.2d 935, Tex.Cr.App., cert. denied, 410 U.S. 940, 93 S.Ct. 1404, 35 L.Ed.2d 606; Lamberson v. State, 504 S.W.2d 894 (Tex.Cr.App.1974); Calverley v. State, 511 S.W.2d 60 (Tex.Cr.App.1974). Cf. Waffer v. State, 500 S.W.2d 659 (Tex.Cr.App.1973); Arivette v. State, 513 S.W.2d 857 (Tex.Cr.App.1974). The reasoning in these cases should apply to the present' case.

We hold that the entire statement in the present case was admissible to show motive for, and who committed, the homicide.

Next, appellant contends that there was jury misconduct because the jury foreman would not ask that the testimony of Officer Longoria concerning the dying declaration be read to the jury after it had retired.

Juror Alma Flores testified at the hearing on appellant’s motion for new trial that she was “confused” about the dying declaration of Ricardo Gonzalez. The following occurred:

“Q. And you were confused because he testified, you thought he testified that two people shot him, the owner of the bar
“A. Well, I understood the owner, but the rest I guess understood it another way.
“Q. And you wanted either to see the notes or to be exposed to the testimony again?
“A. Yes.”

She also testified that she asked the jury foreman, C. D. Hall, to request the court to read back the testimony of Officer Longo-ria concerning the dying declaration of Ricardo Gonzalez. Flores also testified that Hall and another juror stated that Officer Longoria’s testimony could not be read back.

Assuming that the matter is properly before us, the question will be discussed. There is no allegation or showing that any of Officer Longoria’s testimony was in dispute to require the reading of the testimony under Article 36.28, Vernon’s Ann.C.C.P.

The juror Flores testified that she would not have voted for conviction if Officer Longoria’s testimony had been read back. The testimony to the effect that the juror would not have voted for a guilty verdict had the testimony concerning the dying declaration been read is insufficient grounds for a new trial. To allow such would be to permit a consideration of the mental processes of a juror which cannot be done. See Peak v. State, 522 S.W.2d 907 (1975); Luna v. State, 461 S.W.2d 600 (Tex.Cr.App.1970); Simmons v. State, 493 S.W.2d 937 (Tex.Cr.App.1973); Salazar v. State, 494 S.W.2d 548 (Tex.Cr.App.1973), and Adams v. State, 481 S.W.2d 884 (Tex.Cr.App.1972).

No abuse of discretion of the trial judge is shown in overruling the motion for new trial.

The judgment is affirmed.