author: MORRISON, Judge. DOUGLAS, Judge

text:
    Frank Munoz GUITIERREZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50761.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1976.
    See, also, Tex.Cr.App., 533 S.W.2d 16.
    Thomas P. Earls, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and John Ovard, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is possession of heroin; the punishment, 35 years.

Jury trial was waived. In his first ground of error appellant challenges the sufficiency of the evidence to show possession. Cf. Flores v. State, Tex.Cr.App., 489 S.W.2d 901.

Police officers, armed with a warrant, went to a Dallas residence, where they arrested several people including the appellant. At the time of his arrest, appellant was awake in the living room talking to another man. He did not have on a shirt, and needle marks were visible on his arm. However, the officers could not say if the marks were recent. Appellant’s wife was sitting on a bed in the middle bedroom of the apartment and his father was asleep in the front bedroom. On the medicine cabinet of the bathroom located off a hall between the kitchen and middle bedroom, the officers discovered a bent spoon. In a closet adjacent to this bathroom, they discovered a raincoat with 25 tin foil packets of heroin in the pocket.

In order to sustain a conviction, the State must prove: (1) that the accused exercised actual care, control and management over the narcotic or dangerous drug, and (2) that he knew the object he possessed was contraband. Higgins v. State, Tex.Cr.App., 515 S.W.2d 268; Floyd v. State, Tex.Cr.App., 494 S.W.2d 828. Where an accused is not in exclusive possession of the premises, it cannot be concluded that he had knowledge of the narcotic and control over it, unless there are additional independent facts and circumstances which link the accused to the narcotic. Smith v. State, Tex.Cr.App., 511 S.W.2d 296; Wright v. State, Tex.Cr.App., 500 S.W.2d 170.

There was no showing that the residence was under the control of the appellant or that the raincoat belonged to him. See Williams v. State, Tex.Cr.App., 498 S.W.2d 340. As in Higgins, supra, no independent circumstances were shown to connect the appellant with the heroin.

The allegation in the affidavit for the search warrant that the house in question was the appellant’s residence was not self-proving. The trial court in sustaining appellant’s objection to whether the person described in the warrant was the appellant specifically stated that the affidavit and warrant would only be considered for the validity of the search. The only mention in the record that the residence was appellant’s is contained in the testimony of the officer who obtained and served the warrant. He named the house as “Prank Guitier-rez’ residence”, without indicating whether he was referring to appellant, Frank Guitierrez, Jr., or his father, Frank Guitierrez, Sr. No utility bills, rent receipts, personal letters or other material was introduced to show that appellant lived in or had control over the premises. Cf. Wright, supra; Williams, supra; Haynes v. State, Tex.Cr.App., 475 S.W.2d 739.

There were several other persons on the premises in addition to appellant, his wife and father, all of whom had access to the closet and bathroom. It was a rainy night and there was no showing that the raincoat was not brought in by another person. Appellant made no furtive gestures, did not attempt to flee, and the needle marks were not shown to be recent. Hernandez v. State, Tex.Cr.App., 517 S.W.2d 782.

In the case relied upon by the dissent, Curtis v. State, Tex.Cr.App., 519 S.W.2d 883, there was testimony from the landlord that Curtis had rented the apartment and she was present when he moved in. Letters addressed to Curtis were found in the bedroom which was the only room containing significant furniture. Marihuana was found in a coat inside the closet in that bedroom. At the time of his arrest, Curtis and four others were seated in a circle with marihuana and a marihuana cigarette butt near the center of the circle. These independent facts and circumstances were sufficient to link Curtis with the contraband found in the closet.

Even when construed in the light most favorable to the State, the evidence in the case at bar is insufficient to show possession. It is therefore unnecessary for us to discuss appellant’s remaining ground of error.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge

(dissenting).

In addition to the evidence cited in the majority opinion, the record shows that the house searched was appellant’s residence. After obtaining a search warrant, officers set up a surveillance on the house and waited to be sure that appellant was there before executing the warrant. While there, they saw several known narcotic users entering and leaving the apartment. When the officers entered, they found appellant’s father in one bedroom. In another bedroom they found appellant’s wife in bed. The closet in that room contained men’s clothing. A raincoat which contained heroin was in that closet. Other heroin was found in the bathroom by the bedroom where appellant’s wife was in bed.

Here we have a case where heroin was found in appellant’s residence in the closet of the bedroom where his wife was in bed. Would it not be a logical and legitimate deduction that appellant occupied this bedroom? There was also heroin and narcotics paraphernalia throughout the apartment. Needle marks were on both of his arms.

Apparently from this case all a narcotics dealer has to do to prevent a conviction is to have other people in his home where he keeps narcotics. It follows from the majority opinion that no one in the house could be convicted. The Court does not discuss joint control. Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975), should be followed. In that case Curtis and four others were found seated in a circle in the living room of an apartment. Marihuana was found in a sport jacket in a closet in a bedroom where a woman claimed by Curtis to be his wife was found asleep. An officer testified that the apartment had been under surveillance two days before the execution of the warrant, that several people entered and left shortly before the arrest, and that Curtis was seen entering the apartment some thirty minutes before the officers executed the warrant. This Court held that evidence to be sufficient.

The Court should hold the evidence sufficient in the present case.


source: Caselaw Access Project

author: ROBERTS, Judge. ONION, Presiding Judge

license: Public Domain

text:
    Donald S. WOODS, Appellant, v. The STATE of Texas, Appellee.
    No. 51393.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1976.

      B. J. Edwards, Abilene, for appellant.
    Ed Paynter, Dist. Atty. and Patricia A. Elliott, Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order revoking appellant’s probation and imposing a four-year sentence upon him. On April 24,1975, appellant pleaded guilty to the offense of credit card abuse and received a four-year probated sentence. A motion to revoke appellant’s probation was filed on May 20, 1975. At the June 13, 1975 hearing thereon, the motion charged appellant with violating the terms of his probation by being in possession of a usable quantity of marihuana of less than two ounces. After the hearing, the court revoked appellant’s probation upon a finding that the allegations in the motion had been substantiated.

Appellant challenges the sufficiency of the evidence to support the revocation of his probation. On May 17, 1975 Abilene police officers executed a search warrant at 1705 South 3rd, Apt. 214 in Abilene. Inside they found appellant and one John Powell in the living room. A Sherrill Cherry was in the bathroom flushing marihuana down the toilet. Marihuana and various articles of paraphernalia were found all over the apartment.

Some potted marihuana plants were found on top of the refrigerator in the kitchen and in a coffee can on the kitchen bar. Some burned marihuana cigarette remains were found in the trash under the kitchen sink and in a cigarette package found in the southwest bedroom. Marihuana residue was found in the vacuum cleaner in the hall and a cardboard container under the bathroom sink, as well as in two small containers found in the southwest bedroom. This bedroom also yielded a pipe containing marihuana residue and packages of cigarette papers in the dresser and in a white jacket in the closet. Marihuana seeds were found under the cushions of the sofa in the living room and in a small cardboard box on the shelf of a closet in the northwest bedroom. This box also contained a roach clip and two envelopes. One envelope, postmarked eight months prior to the search, was addressed to “Donald S. Woods, Jr.” and the other envelope, of indeterminate date, was addressed to “D. Woods.” Both envelopes were from record clubs. Both envelopes were sent to the same post office box at Dyess Air Force Base, not to the apartment on South 3rd. Officers testified that other “personal papers” of appellant were found in the northwest bedroom, but nonesuch were introduced into evidence. The closet contained no clothes.

No marihuana or paraphernalia was found on the appellant. Nor did he attempt to flee, or make any spontaneous utterances or furtive gestures upon the officers’ arrival. They testified that the apartment contained the odor of burning incense, but not marihuana; there was no evidence that any of the occupants appeared to be under the influence of any drugs. It was not shown to whom the apartment belonged.

In order to prove possession, the State is required to show that the appellant exercised actual care, control and management over the contraband and that he had knowledge that the same was contraband. Guitierrez v. State, Tex.Cr.App., 533 S.W.2d 14 (this day decided); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975); Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974). Possession of contraband need not be exclusive and evidence which shows that the accused jointly possessed the contraband with another is sufficient. Long v. State, Tex.Cr.App., 532 S.W.2d 591 (delivered Dec. 10, 1975); Abercrombie and Dean v. State, 528 S.W.2d 578 (Tex.Cr.App.1975); Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975). But mere presence at a place where contraband is found, even in close proximity if not in plain view, does not, in itself, justify a finding of joint possession. Hernandez v. State, 517 S.W.2d 782 (Tex.Cr.App.1975); Curtis v. State, supra; Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972). There was no marihuana in plain view in the living room where appellant was found.

Where an accused is not in exclusive possession of the premises, it cannot be concluded that he had knowledge of the contraband and control over it unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Higgins v. State, supra; Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975); Long v. State, supra; Hineline v. State, 502 S.W.2d 703 (Tex.Cr.App.1973); Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.1974); Williams v. State, 498 S.W.2d 340 (Tex.Cr.App.1973). The only evidence besides appellant’s mere presence which would tend to link him to the marihuana found in this case was the two envelopes found in the closet of the northwest bedroom.

In both Williams v. State, 521 S.W.2d 275 (Tex.Cr.App.1975) and Williams v. State, 498 S.W.2d 340 (Tex.Cr.App.1973) the defendants paid the utility bills at the premises where the contraband was discovered. In the later Williams case, the defendant was not present at the time of the search, but the woman who was present claimed to be his wife. In the earlier Williams case, the defendant was present but not in the bedroom in which the contraband was discovered. No letters, clothing or other articles belonging to the defendants were found on the premises. The evidence of possession was held to be insufficient in both cases.

In Higgins v. State, supra, LSD was found in the refrigerator in the kitchen and two letters addressed to the defendant at that house were found in the adjoining dining room. The letters, however, were postmarked 5½ months before the search, and even though Higgins was present at the time of the search the evidence was held insufficient to link him to the contraband. And in Reid v. State, 474 S.W.2d 702 (Tex.Cr.App.1972), defendant’s driver’s license was found in a box containing marihuana in a house shown to be rented to two others. Reid was not present when the search began, although she arrived fifteen minutes later. The evidence of possession was held to be insufficient, partly because there was no showing that the address on the driver’s license was the same as the premises searched or whether the license was still valid or expired.

On the other hand, evidence of possession was sufficiently linked to the defendant in Hineline v. State, supra, where a homestead affidavit in his name was found on top of a dresser in which marihuana was found and marihuana residue was found on paper in a box addressed to him at the premises searched. And in Curtis v. State, supra, letters addressed to Curtis and a co-defendant at an address in another city were found in the bedroom in which the contraband was also found. But the additional testimony supplied by the apartment manager that the defendant had rented the premises searched and had been observed moving in was sufficient to sustain a conviction for possession.

Closely on point is the case of Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971) in which a letter addressed to the defendant and found in the same box as the marihuana was held to be sufficient to link him to the substance. In contrast to this case, however, the letter was addressed to the premises searched and there was no showing that it was not postmarked near the time of the search.

Despite the similarities to Haynes, this case has too many of the characteristics of Reid and Higgins for us to say that possession has been proven beyond a reasonable doubt. This case, however, involves a probation revocation. The standard of proof that the State must meet is not proof beyond a reasonable doubt, but rather proof by a preponderance of the evidence. Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1975). We hold that the presence of the appellant at the premises searched, along with the two envelopes apparently addressed to him and found with the contraband, was sufficient to meet this lower standard of proof. The trial court therefore did not abuse his discretion in finding that appellant possessed the contraband as alleged.

Appellant also challenges the adequacy of the search warrant affidavit to establish probable cause under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Specifically, he contends that the allegations of the informant’s reliability and credibility are insufficient.

The affidavit recites the necessary specifics about appellant’s possession of contraband as related by a named informer. The only allegation of the informant’s reliability is that she had ho criminal record. But the fact that she allowed her name to be used goes a long way toward establishing her credibility. As was stated in Frazier v. State, 480 S.W.2d 375 (Tex.Cr.App.1972):

“The reasons for detailing the basis for an officer’s belief in information gained from an undisclosed informant simply do not apply where a private citizen, whose only contact with the police or criminal activity is a result of having witnessed a single criminal act committed by another, furnishes law enforcement officials with information and vouches for such information by allowing the officers to use his name. Recently the United States Court of Appeals for the Fifth Circuit stated in United States v. Bell, 457 F.2d 1231:
“ ‘The rationale behind requiring a showing of credibility and reliability is to prevent searches based upon an unknown informant’s tip that may not reflect anything more than idle rumor or irresponsible conjecture. Thus, without the establishment of the probability of reliability, a “neutral and detached magistrate” could not adequately assess the probative value of the tip in exercising his judgment as to the existence of probable cause. Many informants are intimately involved with the persons informed upon and with the illegal conduct at hand, and this circumstance could also affect their credibility. None of these considerations is present in tl\e eyewitness situation such as was present here. Such observers are seldom involved with the miscreants or the crime. Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it. A “neutral and detached magistrate” could adequately assess the probative value of an eyewitness’s information because, if it is reasonable and accepted as true, the magistrate must believe that it is based upon firsthand knowledge.’
“We hold that the requirements of Aguilar v. Texas, supra, are met when the hearsay information in an affidavit is derived from named persons who supply detailed information suggesting direct knowledge of the information which they have given.” (Citations omitted.)

There being no error or abuse of discretion, the judgment of revocation is affirmed.

ONION, Presiding Judge

(dissenting).

I remained convinced that the proper burden of proof in revocation of probation proceedings is “beyond a reasonable doubt” for the reasons stated in my dissenting opinion in Kelly v. State, 483 S.W.2d 467, 473 (Tex.Cr.App.1972). See also dissenting opinion in Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Cr.App.1975). Since, as the majority agrees, the evidence does not show the commission of the offense charged “beyond a reasonable doubt,” I dissent to this affirmance.


author: DALLY, Commissioner.

text:
    Cruz MARTINEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50925.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1976.

      Norman Arnett, Rotan, for appellant.
    Frank Ginzel, Dist. Atty., Colorado City, Jim D. Vollers, State’s Atty., 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 murder; the punishment is imprisonment for 11 years.

In several grounds of error the appellant asserts that reversal of the judgment is required because: (1) the evidence is insufficient to sustain his conviction; (2) the court erred in refusing to admit a statement made by Faustino Chapa before his death; (3) there was jury misconduct.

The appellant argues that peritonitis resulting from improper medical care was a concurring and intervening cause of the deceased’s death; therefore, the evidence is insufficient to show beyond a reasonable doubt that the deceased’s death was caused by a knife wound inflicted by the appellant.

The jury was instructed that:

“A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor was clearly insufficient.” See V.T. C.A. Penal Code, Sec. 6.04(a).

Further, this instruction was applied to the facts of this ease. A part of that instruction was that:

. . and that conduct, if any, of Cruz Martinez, Jr. in cutting and stabbing the said Faustino Chapa with a knife, if he did, was clearly insufficient to produce the death of Faustino Chapa, or if you have a reasonable doubt thereof, then you should find the defendant not guilty of the offense of murder . .”

As evidenced by its verdict, the jury failed to find support in the evidence that peritonitis resulting from improper medical care was clearly the cause of the deceased’s death and that the knife wound inflicted by the appellant was clearly insufficient to cause the deceased’s death. We are unable to say that the jury’s verdict is not supported by that evidence.

The evidence shows that Faustina Chapa was stabbed by the appellant at about 11:45 p. m. on Saturday, February 9,1974; Chapa was taken to a hospital, and he died four days later.

Dr. C. M. Callan testified that the cause of the deceased’s death was “. acute peritonitis, and shock, from infection, as a result of a stab wound that penetrated the bowel.”

Dr. Callan also testified:

“Q. Then as I understand it, sir, and your testimony there appeared to be a knife wound in the colon, and that ultimately caused his death?
“A. Right.”

Dr. Bill G. Brooks, a forensic pathologist, testified he performed an autopsy on the body of the deceased to ascertain the cause of death. He further testified:

“Q. All right. Thank you, Doctor. Doctor, can you tell us, and the jury here, the cause of death of Mr. Faustino Chapa, in sequence?
“A. . . . Now, we had a healthy man to start with. And he received stab wounds, one of which was inflicted in the right lower quadrant of the abdomen which penetrated the bowel. The patient then received medical care, and was operated upon. And, apparently, complications therefrom were fairly extensive. Now you have to appreciate the fact that once the bowel is penetrated, that the bacteria and the inconsequential organisms, provided they are obtained inside the bowel, escape into the abdominal cavity, and the result is called peritonitis— or irritation of the abdominal cavity, which can kill, and does. And it would appear to me that is what happened in this case: That the patient had a penetration of the bowel, this was treated unsuccessfully medically, and the patient died of peritonitis.
“Q. Doctor, would this be — this peritonitis, under these conditions — would this be a natural consequence of such a stab wound as you found here?
“A. Yes, sir.”

We find that the jury’s verdict is supported by sufficient evidence.

We next consider the appellant’s contention that the testimony of Hortencia Yanez was erroneously excluded from evidence.

The witness Yanez visited Chapa in his hospital room between 6:00 and 7:00 p. m. on Sunday. Her testimony was: he was under medical treatment — he had tubes in him — Chapa was not delirious — he recognized me — he looked bad — said he felt bad and was thirsty — he didn’t talk about pain — -I asked him who had cut him — he told me it was Anasticio Campos and not Martinez. Yanez again visited Chapa in the hospital on Tuesday between 5:30 and 6:00 p. m. There was blood all over the linen, the pillow, and his gown; his feet were hanging off the bed. Chapa died between 1:00 and 1:30 a. m. on Wednesday.

The appellant argues that Yanez’s testimony that Chapa told her he had been cut by Campos and not Martinez was admissible as an exception to the hearsay rule because it was either a dying declaration or a res gestae statement. We disagree.

The requirements for the admission of a dying declaration are statutory. Article 38.20, Y.A.C.C.P. This statement does not qualify as a dying declaration under the provisions of the statute because the evidence does not show that at the time the alleged statement was made Chapa was conscious of approaching death and believed there was no hope for recovery. Cf. Munoz v. State, 524 S.W.2d 710 (Tex.Cr.App.1975).

Declarations relating to the circumstances of a violent crime, made by the victim shortly after its occurrence, are sometimes admitted in evidence as exceptions to the hearsay rule, upon the theory that the shock of the injury and the excitement of the moment have produced an utterance that is spontaneous and sincere as distinguished from one engendered by deliberation and design. Such statements may be admissible even when made in response to an inquiry or after an appreciable time has elapsed between the infliction of the injury and the making of the statement. The decisive factor is that the circumstances reasonably justify the conclusion that the remarks were not made under the impetus of reflection. Whether this conclusion is justified depends upon the facts of each case and must be determined by the trial court in the exercise of sound judicial discretion. United States v. Glenn, 154 U.S.App.D.C. 61, 473 F.2d 191 (1972).

It has been said that three factors are necessary to bring a statement within this exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to contrive, misrepresent or fabricate; and (3) the statement must be related to the circumstances of the occurrence. See 6 Wigmore, Evidence, 3rd ed., Sec. 1750; People v. Poland, 22 Ill.2d 175, 174 N.E.2d 804 (1961); State v. Urbauer, 109 Ariz. 584, 514 P.2d 717 (1973); People v. Tocco, 60 Mich.App. 130, 230 N.W.2d 341 (1975).

Approximately eighteen hours elapsed between the startling event and the witness’ conversation with Chapa. The evidence shows that Chapa had an opportunity to talk with and did talk with other persons during this time. In the circumstances here presented the spontaneity of the statement and the absence of time to contrive, misrepresent and fabricate have not been sufficiently shown that we would feel justified in overruling the trial judge who refused to admit the testimony. See Allen v. State, 488 S.W.2d 460 (Tex.Cr.App.1973) and cf. Ricondo v. State, 475 S.W.2d 793 (Tex.Cr.App.1971).

The last contention for our consideration is that of alleged jury misconduct. It is urged that the jury “went outside the evidence in violation of Article 40.03(7), V.A.C.C.P.” in deliberating on the punishment which would be assessed.

This contention is based upon the affidavit of juror Bredemeyer which was attached to the motion for new trial and admitted in evidence on the hearing of that motion. The affidavit, in pertinent part, stated:

“When we, the jury, retired to consider the punishment of the Defendant, several of the jurors said that if we gave him less than ten years, then it would be left up to the Court to decide whether or not he would be placed on probation. I personally did not want him placed on probation but would not have assessed his punishment at more than eight years in the penitentiary. I felt that I had to vote for an eleven year sentence, otherwise the Court might have placed him on probation. One of the other jurors wanted to assess his punishment at only five years in the penitentiary, but voted for the eleven year term.”

The affidavit does not show that the jury considered evidence not admitted; it does show that the jury may have been correctly informed that if it assessed a punishment of ten years or less the court could grant probation. Since this statement which was alleged to have been made was not a misstatement of the law no reversible error is shown. See Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975); Howard v. State, 505 S.W.2d 306 (Tex.Cr.App.1974); Johnson v. State, 418 S.W.2d 834 (Tex.Cr.App.1967).

It was juror Bredemeyer’s prerogative as a juror to vote to assess a punishment which would prevent the appellant from receiving probation. He may not now impeach that verdict. Frias v. State, 169 Tex.Cr.R. 549, 335 S.W.2d 765 (1960). The affidavit does not show why the other unnamed juror decided to change his vote for imprisonment from five to eleven years. No jury misconduct has been shown.

The judgment is affirmed.

Opinion approved by the Court.


author: ODOM, Judge.

text:
    Willie McGILVERY, Appellant, v. The STATE of Texas, Appellee.
    No. 50221.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.
    Michael Greenberg, Irving, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler and Gerald Banks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This prosecution arose out of the rape, murder, and robbery of a seventy-nine year old woman who lived alone in her Dallas home. Appellant was convicted of murder and a jury assessed his punishment at confinement for life.

Three grounds of error are urged. They are: (1) Appellant’s post-arrest in custody statements should not have been admitted; (2) the evidence was insufficient to support the verdict; and (3) the court erred in failing to charge the jury on the law of circumstantial evidence.

The offense occurred on September 19, 1973. In the afternoon of October 1, appellant and three companions, Carl Hall, Lydia Dilworth, and Brenda Adams, were stopped by police officers and arrested because they were riding in a stolen vehicle. Appellant at that time was wearing two rings that later were identified as the only property known to have been stolen from the deceased. He deposited one behind the back seat of the police car that transported him to jail. He divested himself of the other by kissing Dilworth as they parted in the jail, passing the ring from his mouth to hers in the process.

About 6:00 p. m. a police matron discovered the ring in the possession of Dilworth, who explained how the appellant had given it to her. Further investigation quickly revealed that it had been stolen from the deceased. The ring appellant had deposited in the police car was discovered and identified a few hours later.

At 4:30 a. m. on October 2, appellant and Hall were booked into the county jail and placed together in the “bull ring,” a large common cell, for a few minutes before their removal to separate cells. At that time appellant allegedly made several statements to Carl Hall:

“Q. [by prosecutor]: I will direct your attention to the last part of that [statement] and ask you to tell the Judge what the defendant, Willie McGilvery, said to you while you all were in the bull ring waiting to go up in the tank.
“A. [by Carl Hall]: Well, he said that he didn’t know that the other dude was going to kill this lady.
“Q. What else did he tell you?
“A. That he had got the rings and the dude had got the money.
“Q. Tell you what he intended to do with the rings?
A. Have them broke down after he got out of jail.
“Q. Did he tell you anything about the ring that he had given to Lydia Dil-worth?
“A. Yes. He said that he thought Lydia, you know, was sharp enough not to let the matron find the ring.
“Q. This is what the Defendant, McGilvery, told you up there in the bull ring the early morning hours of October the 2nd, 1973 before you all went to the tank, is that right?
“A. Yes.”

Hall recounted these statements to Officer Walter Potts on the morning of October 3. Potts was surprised to hear appellant’s comments about another “dude” because his theory of the murder upon the basis of the investigation to that point was that only one actor had been involved. Accordingly, the police laboratory was instructed to perform further research to attempt to verify that more than one actor was involved in the rape, murder, or robbery. On October 5, the lab tentatively verified that at least two men had raped the deceased. On October 11, Dr. Ruth Guy was able to confirm the fact on the basis of previously unperformed secretor analysis of the seminal fluid found within the deceased’s vagina.

Article 38.22, V.A.C.C.P., upon which appellant grounds his attack upon the admissibility of the above statements, provides in part as follows:

“1. The oral or written confession of a defendant made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible if:
“(e) It be made orally and the defendant makes a statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”

The general rule is that oral confessions by defendants in police custody are not admissible at trial. Smith v. State, Tex.Cr.App., 514 S.W.2d 749, 752; Pierson v. State, 145 Tex.Cr.R. 388, 168 S.W.2d 256, 258-259. The above quoted statute provides an exception to the general rule. When a defendant’s in-custody statement of facts or circumstances which conduce to establish his guilt is found to be true, the statute permits introduction of the statement at trial. The facts or circumstances stated must be shown to conduce to establish guilt by showing that the statement led to the discovery of items or information not previously discovered by the State, and must be incriminating. Chase v. State, Tex.Cr.App., 508 S.W.2d 605, cert. denied, 419 U.S. 840, 95 S.Ct. 71, 42 L.Ed.2d 68 (1974); Ashley v. State, Tex.Cr.App., 362 S.W.2d 847, cert. denied, 372 U.S. 956, 83 S.Ct. 955, 10 L.Ed.2d 10 (1963); cf. Smith v. State, Tex.Cr.App., 514 S.W.2d 749.

The State in its brief properly concedes that none of appellant’s statements about the rings render his oral confession admissible. By the time Hall talked to police officers and reported the statements on October 3, the police had already discovered both rings, knew that they had been stolen from the deceased, and knew that appellant had been in possession of both of them. The statements pertaining to the rings, therefore, led to no new evidence of guilt. Smith v. State, supra; Easley v. State, Tex.Cr.App., 493 S.W.2d 199.

The issue of admissibility turns up whether the statement “I didn’t know the other dude was going to kill the lady” led to the discovery of items or information previously unknown to the State, and upon whether the facts found to be true are incriminating.

The record is clear that the statement led the State to new information previously unknown to it. New laboratory tests were performed that showed a second man was involved in the crimes. Dr. Guy’s secretor analysis did not reveal whether appellant had intercourse with the deceased, but did reveal that in any event another male, whether alone or in addition to appellant, had had sexual intercourse with her shortly before or at her death.

We also conclude that the facts found to be true were incriminating. While it is true that the test results did not prove whether appellant had intercourse with the deceased, and only established that someone else had, it nevertheless was an incriminating part of the State’s theory that appellant was guilty as a principal in the crimes. In conjunction with the other evidence, which showed, inter alia, that his car was parked outside the deceased’s house the day of the offense, that he himself was in the vicinity of the house the day of the offense, and that pubic hairs not inconsistent with his were found on the deceased’s body, it was established that appellant may have been guilty as a principal. The State argued the law of principals to the jury, the trial court submitted a charge on the law of principals, and the jury may well have found appellant guilty on that very theory. We find that the incriminating character has been demonstrated. This rendered the entire oral confession admissible at trial. Hayes v. State, Tex.Cr.App., 502 S.W.2d 158; McClure v. State, 100 Tex.Cr.R. 545, 272 S.W. 157.

Next, as to the sufficiency of the evidence, we are of the opinion that the evidence, most of which has already been recounted, was sufficient to support a conviction for murder. Appellant’s car was seen parked outside the deceased’s house the afternoon of the murder and the composition of foreign pubic hairs found on the body of the deceased was of the same composition as the hairs taken from appellant’s genital area. On the day of the murder appellant used a credit card to buy gasoline at a service station a short distance from the scene of the murder. Appellant possessed the rings stolen during the murder. Finally, appellant’s statements to Carl Hall were evidence of his guilt.

A written requested charge on circumstantial evidence appears in the record; however, there is no showing that such charge was ever brought to the attention of the trial court and the record does not reflect that any objection was made to the court’s charge before it was read to the jury. Therefore, compliance with Arts. 36.-14, 36.15, V.A.C.C.P., has not been shown. Nothing is presented for. review.

There being no reversible error, the judgment is affirmed.

      . This was not custodial interrogation by an officer; therefore, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) warnings do not come into play. However, the record reflects that both Hall and the appellant were given Miranda warnings prior to the time of these statements.

      . Appellant does not contest the finding that the statement of facts or circumstances made by him was true.


author: MORRISON, Judge.

text:
    Paul HATLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 50944.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.

      Phil Burleson and Robert T. Baskett, Dallas, for appellant.
    Henry Wade, Dist. Atty., Edgar A. Mason, Kelly W. Loving and Norman Kinne, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder with malice; the punishment, 25 years.

We find that the fatal shooting climaxed a continuing half hour disagreement between the deceased and appellant concerning a motorbike. Appellant had called the police to complain about the noise from a motorbike being ridden by deceased’s son. The deceased and appellant were neighbors. An officer was dispatched at 5:05 p. m. to the appellant’s home. After arriving, the officer, appellant and his wife met with the deceased and his wife. The deceased stated to appellant, “Come on out in the alley and let’s settle it out here.” Appellant and his wife went into their home and deceased and his wife left for the alley to watch their son riding in a vacant lot. The officer explained to appellant that he could not stop the boy from riding the bike. He then pulled his car around to the alley and called for additional help.

Shortly thereafter at 5:46 p. m. another officer arrived. While discussing the situation, they heard shots and saw appellant coming out of his driveway firing a gun at the deceased, who was walking down the alley with a glass of tea in one hand and a cigarette in the other. The fourth shot fired from a distance of three feet was apparently the fatal shot. Appellant contended that deceased had come into his driveway and said, “I’m going to kill you, boy.” Appellant then went inside, got a gun from a mantle and went back out into his driveway where he told deceased, “Get out of here.” Appellant claimed the deceased lunged at him, and he began firing.

Appellant’s first ground of error contends the trial court erred in permitting the State to present testimony of the deceased’s reputation for being a kind and inoffensive person.

When the State presented the reputation testimony, the appellant, in addition to objecting, presented a motion to withdraw reputation testimony.

In overruling appellant’s motion to withdraw the reputation testimony, the trial court entered the following conclusions: (1) the conversation 30 minutes before the shooting raised the issue of threats and made admissible evidence of deceased’s reputation, and (2) the attack and threats at the time of the shooting were separate and apart from and not a mere continuation of the conversation 30 minutes earlier.

The trial court found that threats were shown by appellant’s counsel’s cross examination of a State’s witness and direct examination of a defense witness. The trial court further found appellant’s testimony concerning the conversation 30 minutes before the shooting “amounted to proof by appellant that the deceased was a person of violent and dangerous character.”

We cannot find support in the record for the trial court’s findings that the cross examination and direct examination by appellant’s counsel established antecedent threats. Nor can we say that appellant’s recital of the events that afternoon constituted proof of deceased’s reputation. It is not admissible to show deceased’s character by isolated facts. Nelson v. State, Tex.Cr.App., 58 S.W. 107.

We also disagree with the trial court’s conclusion that the offense and conversation 30 minutes earlier were separate and apart. We find the events constituted one continuous transaction.

The rule is well settled that “it is never competent for the State in the first instance to prove that the person slain was peaceable and inoffensive. Such evidence becomes admissible in rebuttal when the opposite has been testified to in behalf of the defense, or when the defendant seeks to justify the homicide on the ground of threats made by the deceased.” Arthur v. State, 170 Tex.Cr.R. 161, 339 S.W.2d 538, at 539.

The State seeks to justify the admission of the reputation testimony under Article 1258, V.A.P.C.

The statement of the deceased concerning going into the alley cannot be considered as an antecedent threat. Nowhere does the defensive testimony raise the issue of antecedent threats or bad reputation of the deceased to put this case within the purview of Article 1258, supra.

In Pollard v. State, 119 Tex.Cr.R. 452, 45 S.W.2d 618, recently cited with approval in Vela v. State, Tex.Cr.App., 516 S.W.2d 176, it was held that threats made by the deceased after the conflict began and during the continuation thereof did not make admissible evidence of deceased’s reputation.

The State contends its cross examination of a defense witness opened the door to proof of reputation of deceased. The State cannot rely on its own questioning as an invitation to rebuttal. Barrett v. State, 86 Tex.Cr.R. 101, 215 S.W.2d 858. Cf. Els v. State, Tex.Cr.App., 525 S.W.2d 11, 14.

In light of our disposition of this ground of error, we find it unnecessary to discuss the remaining grounds of error.

The judgment is reversed and the cause remanded.

      . Although appellant was tried after the effective date of the new Penal Code, the law in effect at the time of the commission of the offense controls. Acts 1973, Chapter 399, Section 6(a). Article 1258 is a substantive, not a procedural, provision and is applicable notwithstanding its repeal at the time of trial. See McCarter v. State, Tex.Cr.App., 527 S.W.2d 296; Pesch v. State, Tex.Cr.App., 524 S.W.2d 299.

      . Although there was evidence of the prior relationship between appellant and deceased, this evidence showed petty non-violent arguments. There was no evidence of antecedent threats prior to the afternoon of the events; nor did the testimony as to the prior relationship constitute evidence of deceased’s general reputation.


author: BROWN, Commissioner.

text:
    Clifford REDMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 50962.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.

      E. Warren Goss, Lubbock, for appellant.
    Joe Smith, Dist. Atty., Seminole, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for sale of marihuana under the former penal code. The jury assessed punishment at seven years in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged.

The record reflects that the Sheriff of Garza County employed Martin Valenzuela, a student at a law enforcement school, to work as an undercover agent in Garza County. The undercover agent testified that on August 11, 1973 he purchased one “lid” of marihuana from the appellant, Clifford Redman.

Appellant in his first ground of error contends that the trial court erred in not striking a hard of hearing venireman from the panel for cause.

It appears from the record of the voir dire that one of the veniremen was hard of hearing and was having difficulty with his hearing aid. The appellant sought tó challenge the venireman for cause. The trial court overruled the challenge.

In order to complain of the trial court’s failure to discharge an objectionable juror for cause the appellant must show that he was forced to accept an objectionable juror as a result. Chappell v. State, 519 S.W.2d 453 (Tex.Cr.App.1975); Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1973). This the appellant has not shown. The record reflects that the appellant did not peremptorily challenge the juror that he had objected to, but that the State did strike the juror from its list. No harm is shown.

Appellant’s first ground of error is overruled.

Appellant in his second ground of error contends that the trial court erred in not finding that the appellant was entrapped as a matter of law.

Martin Valenzuela testified that he purchased a “lid” of marihuana from the appellant on August 11, 1973. He testified that he and the appellant had become friends and that he didn’t think that the appellant was selling marijuana; however, at the request of the Sheriff of Garza County he attempted to make a buy from the appellant.

The appellant testified in his own defense and admitted that he had sold the marihuana to Martin Valenzuela on August 11, 1973. He further admitted that he sold some more marihuana to Valenzuela on September 10, 1973. It was the appellant’s contention that he sold the marihuana to Valenzuela only because of the agent’s repeated requests and because he felt that his friendship depended on supplying Valenzuela with marihuana. Appellant testified that he had not sold marihuana on any other occasions and that he made no profit from the sales that he made to Valenzuela.

The issue of entrapment was raised by the evidence. The trial court instructed the jury on the law of entrapment. The jury resolved the conflict in the testimony against the appellant.

The appellant urges that entrapment was shown as a matter of law. We disagree.

In Jones v. State, 427 S.W.2d 616 (Tex.Cr.App.1968), this Court said:

“It appears to be well established that the factual issue of entrapment is a question for the jury, unless as a matter of law the accused has established beyond a reasonable doubt he was entrapped. See Accardi v. United States (5th Cir.) 257 F.2d 168; Washington v. United States (5th Cir.) 275 F.2d 687; Demos v. United States (5th Cir.) 205 F.2d 596; 17 Baylor Law Review 426, 430. See also Coronado v. United States (5th Cir.) 266 F.2d 719 (‘ * * * entrapment is a jury question unless evidence is so clear and convincing that the matter can be passed on by the court as a matter of law’).”

In Poe v. State, 513 S.W.2d 545 (Tex.Cr.App.1974) this Court held that entrapment was not shown as a matter of law and explained the rule this way.

“ ‘It is the general rule that where the criminal intent originates in the mind of the accused, the fact that the officers furnish the opportunity for or aid the accused in the commission of a crime constitutes no defense to such a prosecution. However, if the criminal design originates in the mind of the officer and he induces a person to commit a crime which he would not otherwise have committed except for such inducement, such is entrapment and, in law, may constitute a defense.’ Haywood v. State [Tex.Cr.App.], 482 S.W.2d 855. See also McKelva v. State [Tex.Cr.App.], 453 S.W.2d 298; Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452.”

The appellant argues, however, that in determining if entrapment is shown as a matter of law this Court must consider not only the predisposition of the accused, but must weigh also the conduct of the law enforcement agents. See, e. g. Guerrero v. State, 487 S.W.2d 729 (Tex.Cr.App.1972) citing Walker v. United States, 285 F.2d 52 (5th Cir.1961).

In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) the United States Supreme Court rejected the defendant’s argument that the defense of entrapment rested on constitutional grounds. The Court then reviewed the defense of entrapment as it has developed in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249 (1932) and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). The majority opinion held that the defense of entrapment was limited. Its purpose is not to allow the courts to dismiss prosecutions because of what the court may feel is “overzealous law enforcement.” The defense of entrapment is available only where the agent of the government “actually implants the criminal design in the mind of the defendant.”

The evidence on the issue of entrapment was in conflict. The issue was submitted to the jury. The jury chose to reject the testimony of the appellant on the issue of entrapment. That was their prerogative. Pope v. State, 505 S.W.2d 556 (Tex.Cr.App.1974); Lombardo v. State, 503 S.W.2d 780 (Tex.Cr.App.1974).

The appellant has simply not established that he was entrapped beyond a reasonable doubt. Appellant’s second ground of error is overruled. This is a conviction under the old code and we do not reach the issue under the present statute. See and compare V.T.C.A., Penal Code, Sec. 8.06.

Appellant in his third ground of error contends that the trial court erred in not allowing him to impeach the testimony of Martin Valenzuela. The appellant attempted to impeach Martin Valenzuela by showing that he had a previous criminal record in the State of California. The witness admitted the conviction outside the presence of the jury.

Art. 38.29, V.A.C.C.P., provides in part: “The fact that a . witness in a criminal case, is or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, or the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted ... or such person has been placed on probation and the period of probation has not expired.” (emphasis added)

The record indicates that the witness Martin Valenzuela was arrested and charged with the offense of lewd and lascivious conduct involving a child, a felony under California law. He plead guilty to the charge of child molesting, a misdemean- or under California law. The witness was placed on two years’ probation at the end of which his plea of guilty was withdrawn and the charge dismissed, as provided by California law.

The appellant argues that this Court could follow California law and allow the prior conviction to be used to impeach the witness’s testimony. This we decline to do.

Art. 38.29, supra, provides by its own terms that it is applicable to convictions obtained in other States and that if the probationary period has been served the conviction may not be used to impeach the testimony of the witness.

Appellant’s third ground of error is overruled.

Appellant in his fourth ground of error contends that the trial court erred in not finding that Martin Valenzuela was an accomplice witness whose testimony required corroboration.

Carr v. State, 495 S.W.2d 936 (Tex.Cr.App.1973) is directly in point. This Court stated:

“We hold that in the present case, since the appellant admitted the act, a charge on accomplice testimony was not required. If there are any cases where entrapment or accommodation agency is raised as a defense which may be construed to hold that, where an accused takes the stand and admits all the acts which constitute a crime, a charge on accomplice testimony is required, they are overruled.”

See also Gonzales v. State, 505 S.W.2d 267 (Tex.Cr.App.1974).

Appellant’s fourth ground of error is overruled.

Appellant’s fifth ground of error contends that the trial court “erred in submitting a faulty charge to the jury.” Appellant contends that the charge did not properly define entrapment, commented on the weight of the evidence in two different paragraphs, failed to find Martin Valenzuela an accomplice witness as a matter of law, failed to instruct the jury to find each and every element of the offense charged, and failed to define all of the elements of the offense. The appellant then concludes that “[t]he Charge to the jury on a whole then was fatally defective.”

We have examined the charge of the trial court and while it is no model to follow in the future there is no reversible error.

Appellant’s fifth ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Wiley F. EATON, Appellant, v. The STATE of Texas, Appellee.
    No. 51027.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.

      James H. Kreimeyer, Belton, for appellant.
    Joe Carroll, Jr., Dist. Atty., Al W. Sehorre, Jr., Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for arson. Punishment was assessed at sixteen years.

In his sole ground of error, appellant contends “That there is a fatal variance between the allegation as to the ownership of the building in the indictment and the proof offered at trial.”

Appellant was the manager of a service station. The true owner of the property was a petroleum corporation. The indictment alleged ownership in Charles Minyard, a regional supervisor for the corporation.

Reading the ground of error in conjunction with the argument in support thereof, we construe his complaint as two-fold:

(1) An indictment for arson charging ownership in the supervisor of the property will not support a conviction if the evidence shows a corporation to be the true owner of the property.

(2) The evidence at trial was insufficient to show the supervisor was an owner of the property within the meaning of V.T.C.A. Penal Code Secs. 28.02 and 1.07(a)(24).

We will discuss each contention separately. Regarding the variance complaint, Art. 21.08, V.A.C.C.P., provides in part:

“Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them.

We have frequently said that this statute is applicable to property owned by a corporation. Roberts v. State, Tex.Cr.App., 513 S.W.2d 870; Walling v. State, Tex.Cr.App., 437 S.W.2d 563; Porter v. State, 172 Tex.Cr.R. 366, 357 S.W.2d 401. When the property referred to in an indictment belongs to a corporation, it is not only permissible but also the better pleading practice to allege ownership in a natural person acting for the corporation. Castillo v. State, Tex.Cr.App., 469 S.W.2d 572; Walling v. State, supra.

The State properly alleged ownership in the regional supervisor of the corporation. That the proof at trial showed the true owner to be the corporation presents no variance and appellant’s complaint is without merit insofar as it contends otherwise.

Next we must consider whether the evidence was sufficient to show that Min-yard was an owner of the property within the meaning of the arson statute. V.T.C.A. Penal Code See. 28.02 provides in pertinent part:

“A person commits an offense if he starts a fire or causes an explosion:
“(1) without the effective consent of the owner and with intent to destroy or damage the owner’s building or habitation.”

Further, Y.T.C.A. Penal Code Secs. 1.07(a)(24) and (28) provide:

“ ‘Owner’ means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.
“ ‘Possession’ means actual care, custody, control or management.”

Thus, three separate means are provided by statute in which the State might fulfill its burden of showing Minyard was the owner of the property: that he had (1) title, (2) possession, or (3) a right to possession superior to that of appellant. Title to the property was in his employer, the petroleum corporation. With regard to Minyard’s possession or right to possession, however, he testified as follows:

“Q. [by the prosecutor]: All right, sir. And specifically what are your duties?
“A. [by Minyard]: As a supervisor, to control the establishments of Billups’ Western Petroleum Company and audit their books.
“Q. So this would be like each individual service station in your area that you check on?
“A. Right.”

Thus, the evidence was sufficient to show that Minyard had the duty of controlling, auditing, and overseeing the operation of the property. This evidence showed he was in possession of the property (Sec. 1.07(a)(28), supra), which in turn made him an owner within the terms of Sec. 1.07(a)(24), supra.

With regard to appellant’s claim that there is no evidence “that Mr. Minyard maintained any more right to possession of the property than appellant,” we observe that V.T.C.A. Penal Code Sec. 28.05 provides:

“It is no defense to prosecution under this chapter that the actor has an interest in the property damaged or destroyed if another person also has an interest that the actor is not entitled to infringe.”

We therefore hold that when the State in a prosecution for arson shows that the person alleged as owner is an owner because he was in possession of the property, the State need not show that the alleged owner had a greater right to possession than the accused. See Practice Commentaries to Secs. 28.02 and 28.05, supra.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Arthur N. REED, Appellant, v. The STATE of Texas, Appellee.
    No. 51408.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.

      Don B. Mauro and John M. Barron, Jr., Bryan, for appellant.
    W. T. McDonald, Jr., Dist. Atty., J. Bradley Smith, Asst. Dist. Atty., Bryan, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

Appellant entered a plea of guilty to the offense of attempting to pass a forged instrument on August 9, 1974. Punishment was assessed at five years probated.

On February 7, 1975, the State filed a motion to revoke appellant’s probation alleging that appellant had violated a condition of his probation in that appellant on or about January 24, 1975

“did then and there unlawfully with intent to defraud and harm another, pass to Walter Willis a writing that had been made so that it purported to be the act of another who did not authorize the act, and which said writing is to the tenor following: . . .” (A copy of the check in question and the endorsement thereon are attached to the State’s motion.)

The record reflects that after a hearing on May 20, 1975, the court entered an order revoking appellant’s probation finding that appellant had violated the terms and conditions of his probation in that he had committed the offense of passing a forged instrument, said finding tracking the offense as same was alleged in the motion to revoke.

Appellant contends that the court abused its discretion in revoking his probation in that “no proof was offered that the checks in question were forged, which is a necessary element of the crime of forgery.”

Walter Willis, an employee at Harrington Package Store located north of Navasota, testified that on the occasion in question appellant made a purchase of liquor in the store and gave him a check dated January 24, 1975 in the amount of $172.72, drawn on Raywell Enterprises, Dry Cleaning Account, signed by “Ray Criswell,” and made payable to the order of “James Hunt.” Willis stated that appellant endorsed the name of the payee on the check and Willis gave him the difference “between the liquor and the amount of the check” in cash.

John Miller of the College Station Police Department testified that he took a voluntary written statement from appellant on January 25, 1975, after advising appellant of his constitutional rights and reading him “his rights on the voluntary statement.” The statement, admitted into evidence, omitting the warning and formal parts, recites in pertinent part:

“On or about 1-24-75 I Arthur Neal Reed saw Cliff Martian at the Happy Hour Club. We played a couple games of pool. I asked him to take me to Navaso-ta, Texas. I had on me (6) six checks however Cliff Martian, James Freeman & Felton didn’t have any knowledge what so ever about the checks or didn’t receive any money — they knew nothing! The check were pink in color on Ray Well enterprises, cleaner account. I cashed one at the liquor store in Navasota also I tried to cash one at a grocery store there we were stopped shortly afterwards by the police there in town. I must say again that the above people had no knowledge of a crime in process & no one threaten me or promise any deal. The liquor store where I cashed the check were last liquor store on the right before you cross the river bridge on Highway six south [Navasota River].”

V.T.C.A. Penal Code, Section 32.21, defines forge as follows:

“(a) For the purpose of this section:
(1) ‘Forge’ means:
(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
(i) to be the act of another who did not authorize that act;
(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
(iii) to be a copy of an original when no such original existed;
(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; . . . .”

In construing the definition of “forge” set forth in Sec. 32.21, supra, this Court in Young v. State, Tex.Cr.App., 529 S.W.2d 542 said:

“From this definition it appears to be readily apparent that the act in question, in addition to being with the intent to defraud, must purport to be the act of another who did not authorize the act.”

No evidence was offered that appellant did not have the authority to endorse the name of the payee on the check, nor does the record contain any evidence that “James Hunt” was the name of a fictitious person or that “James Hunt” was a different person from Arthur Reed (appellant). See Colburn v. State, Tex.Cr.App., 501 S.W.2d 680; Golden v. State, Tex.Cr.App., 475 S.W.2d 273. In a prosecution for forgery, the burden is on the prosecution to prove every essential element of the offense charged. 25 Tex.Jur.2d, Forgery, Sec. 53 (1960). The fact that this Court has held that the standard of proof that the State must meet in proving offenses upon which the State relies in revocation of probation proceedings is by a preponderance of the evidence rather than beyond a reasonable doubt1 does not relieve the State of the burden of proving every element of the offense. The statement in appellant’s confession relative to his companions having “no knowledge of a crime in process,” while an incriminating circumstance, does not serve to prove that the check in question was forged.

We conclude that the evidence does not support the court’s finding that the appellant committed the offense of passing a forged instrument. Thus, the court abused its discretion in revoking appellant’s probation.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . Scamardo v. State, Tex.Cr.App., 517 S.W.2d 293; Kelly v. State, Tex.Cr.App., 483 S.W.2d 467; Woods v. State, Tex.Cr.App., 533 S.W.2d 16 (1976).


author: WALTER, Justice.

text:
    In the Matter of the ESTATE of M. L. WOODS, Deceased.
    No. 4829.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 14, 1975.
    Rehearing Denied Feb. 5, 1976.
    Dewey C. Cox, Jr., Ranger, C. 0. McMillan, Stephenville, for appellant.
    Bill B. Hart, Eastland, for appellee.
   WALTER, Justice.

This is a will contest case. M. L. Woods died May 8, 1973. He was ninety-one or ninety-two at the time of his death. His will dated August 7,1964, with codicil dated May 16, 1972, was admitted to probate. Thereafter, Orville Lucille Woods Brown filed suit to set it aside which was denied. On appeal to the District Court, judgment was rendered setting aside and cancelling the judgment of the probate court which admitted Mr. Woods’ will to probate.

Fred McCright, independent executor of the Estate of M. L. Woods, Deceased, Owen E. Rose, Robert Stephenson, Carolyn L. Braddoek, Neita Faye Rose Melton, Johnnie Owen Rose, and Shirley Ann Rose, hereinafter referred to as proponents, have appealed.

The jury found at the time Woods executed his will and codicil he was acting under undue influence and at the time of executing the codicil of May 16, 1972, he was not of sound mind.

The proponents contend there is no evidence to support the jury’s answers. They also contend the court erred in admitting the testimony of Mrs. Euna Woods and Maureen Bratton.

To determine the question of whether there is any evidence of probative force to support the jury’s findings we must follow the principle of law announced in Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974), wherein the court said:

“When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Langlotz v. Citizens Fidelity Insurance Company, 505 S.W.2d 249 (Tex.1974). It would be our duty to affirm the judgment of the Court of Civil Appeals if the evidence offered to show negligence were proven to be no more than a scintilla of proof. Thus if the evidence created nothing more than a mere surmise or suspicion of the existence of negligence, such evidence would be, in legal effect, no evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). But if negligence may be reasonably inferred from direct evidence, then there is more than a scintilla of evidence. Calvert, ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error, 38 Texas Law Review 361, 363 (I960).”

In Pearce v. Cross, 414 S.W.2d 457 (Tex.1966), at page 458 our Supreme Court sets forth the elements of undue influence as follows:

“ . . . The correct rule with respect to declarations of the testator in undue influence cases is succinctly summarized in McCormick & Ray, Texas Law of Evidence, § 894 (2d ed. 1956), as follows:
Undue influence as an invalidating fact consists of two elements: first, the external, the words or acts of third persons which bring the pressure to bea.r; second, the internal, the collapse of the testator’s own will, produced by such external conduct. It is held that declarations of the testator, of whatever type, are no evidence of the former but only of the latter elements.
We reaffirmed the rule as recently as 1964. Bee Lindley v. Lindley, 384 S.W.2d 676, 682 (Tex.Sup.1964).”

Every case of undue influence must be decided on its own peculiar facts. Rothermel v. Duncan, 369 S.W.2d 917 (Tex.1963). Undue influence may be established by circumstantial as well as direct evidence. “Undue influence is usually a subtle thing, and by its very nature it usually involves an extended course of dealings and circumstances.” Rothermel v. Duncan, supra.

The evidence shows Mr. Woods was old, hard of hearing, could not see well and had a back injury. This evidence may be considered as establishing Mr. Woods’ physical incapacity to resist or the susceptibility of his mind to an influence exerted. Rothermel v. Duncan, supra.

By his will dated March 21, 1962, Morris L. Woods appointed W. H. Cooper his independent executor and left all his property to Orville Lucille Woods Brown and Susie M. Bratton.

Thereafter on August 7, 1964, he executed another will revoking the 1962 will. In his 1964 will, he devised to Owen E. Rose and Beatrice L. Rose the surface only to approximately 300 acres of land subject to a life estate which he devised to Robert Stephenson.

He devised the surface to other land which he owned to Carolyn L. Braddock, Neita Faye Rose, Johnnie Owen Rose, Shirley Ann Rose and Susie Maureen Bratton. The rest and residue of his estate was left to Owen E. Rose, Beatrice L. Rose, Carolyn L. Braddock, Neita Faye Rose, Johnnie Owen Rose, Shirley Ann Rose, and Susie Maureen Bratton, share and share alike.

On May 16, 1972, Mr. Woods executed a codicil excluding Susie Maureen Bratton from his will and leaving her one dollar.

Maureen Bratton testified substantially as follows:

I have known Morris Woods since I was nineteen years of age and I am fifty-two now. So I guess I have known him for about thirty-three years. I worked for him for about sixteen years beginning in 1956. His wife was living when I started working for him but she died in 1962. After Mrs. Woods passed away, Morris asked me if I would move down to his place. I had my grandchildren with me then and he built a room for them. Owen Rose is my brother. He asked me if I would get him a job with Mr. Woods. This was about 1963. He wasn’t living here in 1956 when I started working for Mr. Woods. He was living in Lufkin and he did not know Mr. Woods until after I talked to Morris about hiring him to go to work. I had been helping Morris doctor cattle and brand them so after he hired my brother, Owen, that was the job he started doing. He started to work for Mr. Woods and worked for him up until Mr. Woods’ death. I continued to work except for the last year before Mr. Woods’ death because:
“Owen Rose and his family moved my furniture out down there, moved it into a store room, and I didn’t have a place to stay.”
I continued to work for Morris until January or February of 1972. Morris came down to my house in 1962 and told me that he had made a will and had named Lucille Brown and me his beneficiaries. This is the will dated in 1962. He told me that W. H. Cooper was his executor. He and Mr. Cooper had been friends for many years. Later on Morris talked to me about another will. He asked me to find out about a will or some papers that he had signed and he wasn’t sure which it was or what the contents were.

She was asked the following questions and she gave the following answers:

“Q All right, did you attempt to find out what it was?
A Yes sir, he told me, he said, T either signed a will or some papers’, and he said, ‘Maureen, I don’t know what was in them’, and he said, ‘I want you to go and find out for me’, and so I asked him where they were at, and he said . Owen Rose had them at his home, and I went up there and asked my brother and my sister-in-law, she was there, and I asked him about it, and he said, ‘aw, hell, Mr. Woods is sick, and I’m not going to fool with that damn thing, he might as well hush.’
Q Who said that?
A Mr. Rose told me that.
Q Owen Rose?
A Yes.”
I went back to the house and told Morris that my brother wouldn’t let me have the will. I would say this was along in 1964 or 1965, around that date.

She was asked the following questions and she gave the following answers:

“Q All right, and what did he ask you to do?
A Well, he asked me to go to my brother’s and ask him if I could get the will and bring it back down there and read it to him, that he wanted to know what was in it. But my brother failed to let me have it, and like I say, he kind of give me a cussing and just almost ordered me out of the house, and told me, said, ‘hell, Mr. Woods is sick and you’re damn sure not getting this will.’
Q And Mr. Rose that that will, as far as you know, in his possession?
A Yes sir.”
“Q All right, did you hear their conversation between Morris Woods and Owen Rose?
A Yes, I sure did.
Q All right, what did you hear?
A I heard my brother say, ‘Now, Morris, I’m not going to have a damn thing to do with that anymore, anything else to do with it, with the will’. He said, ‘my kids will be mad at me’, and he said, ‘By God, I’ll just quit.’ ”
Mrs. Euna Woods testified substantially as follows:
I am Mrs. H. 0. Woods, Sr. Morris L. Woods was my husband’s brother and he married my aunt. Morris’ wife died several years ago and Morris had no children. I believe Morris was ninety-one or ninety-two years old when he died. I don’t know what was wrong with him but he had been sick for a good long time. He died at his home about three weeks after he left the hospital. I tried to visit him several times in the hospital but the Rose family never would let us go in and talk with him without some of the family in the room with us. One time while I was in the hospital the Rose family was called out of the room and Morris called me to his bed and said he wanted to talk to me.
Morris Woods came to me two or three times and asked me to let him talk to me about something and he said, “you are the only one in the family that I can talk to and discuss anything and get a little bit of sense out of it”. He made that statement to me several times. I had an occasion to be around Morris in 1963 and 1964. We ran a grocery store and he traded with us and he was up there two or three times a week. I talked to him quite often. During 1963 and 1964 my husband and I would drive to his ranch on Saturday and Sunday afternoon and talk to him. Sometimes he would know us and sometimes we would have to tell him who we were. He couldn’t see unless you were right up close to him, and he couldn’t read nor write but he was able to print his name. I have talked to Morris after he wrote the 1962 will and before he wrote the 1964 will. He came to our grocery store and asked me if he could talk to me. He said, “Well, I don’t know if you know about it or not but I had a will drawn up yesterday.” Morris said he left one-half of his property to Lucille (Lucille is Mrs. H. 0. Woods’ daughter) and one-half to Maureen Bratton. He said Maureen had worked for him a long time and she took good care of him and she helped take care of Mrs. Woods while she was sick. He said I want to tell you that as long as I’ve got my sound mind there’ll never be a change made in that will. He said if anybody ever comes up with another will, I want you to fight it as long as you have any breath. I asked him what I could do about it and he said, “Well, I always thought you were a fighter.” He said he wanted Lucille to get the 160 acre home place because that’s the land his father gave him before he died. I want Lucille to have that and I’m going to have it fixed to where she can never sell it and if anything happens to her, her daughter Elizabeth will get it and if anything happens to her, her little girl will get it and that goes on down as far as Lucille’s family goes. It will stay in the Woods name as long as one of them are still living. Another reason I want the property to stay in the Woods family is because of Orville. He said Orville (Orville is the witness’ husband) and I have always been real close. He comes down and fishes and hunts on my place and I want to keep it that way so he and the boys can always feel free to come down here and make their home here hunting and fishing. Sometime Orville and me and Lucille would drive down to his place on Saturday and Sunday afternoon and if we had cooked a pie or cake, we would take it to him.
About three weeks prior to Morris’ death, I had a conversation with him at the hospital.
And the witness gave the following answer:
“A Well, he just told me, he said, ‘they tell me I signed some papers, and I tried to get them to bring them and let somebody read them to me, so I’d know what I’d signed, and they would not do it’, he said, T never did know what I signed’. He said, T couldn’t read, and I just signed what they told me to’. He said, T never did know what I signed.’ ” After Morris got sick, we didn’t get to
visit with him much. Mr. and Mrs. Rose and Mrs. Norton stayed with him. Orville and me offered to stay with him and the Rose family said there’s plenty of us and we don’t need anybody to help us.

From the date of the 1962 will until Mr. Woods’ death on May 8, 1973, there had been no change in the relationship between Mr. Woods and Orville Lucille Woods Brown and Maureen Bratton, the beneficiaries in the 1962 will. The 1962 will was prepared by his regular attorney at Ranger, Texas. There is evidence that the attorney who drew the 1964 will and the 1972 codicil had never done any legal work for him before and he was from Eastland, Texas.

We cannot say the jury was unauthorized reasonably to infer that Mr. Rose exercised undue influence on Morris Woods which caused him to execute the 1964 will in which he and his family were the principal beneficiaries. This inference could reasonably have been reached from direct evidence of Mr. Woods’ deep affection for Orville Lucille Brown and Maureen Bratton which continued until his death. An inference could reasonably have been reached from direct evidence that Owen Rose refused to permit his sister to read the will and telling her, “hell, Mr. Woods is sick and you’re damn sure not getting this will”.

Another inference could reasonably have been reached from direct evidence that Owen Rose did not know Morris Woods until his sister talked to Mr. Woods about hiring him to work on the ranch in 1963.

We hold the above testimony and other facts and circumstances in evidence constitutes some evidence of probative value and support the verdict of the jury. Pearce v. Cross, 414 S.W.2d 457 (Tex.1966).

Appellants contend the Court erred in admitting some of the testimony of the witnesses, Mrs. Euna Woods and Maureen Bratton, concerning declarations which M. L. Woods made to them. These declarations of the deceased that the witnesses testified about were offered not for the purpose of proving the truth of the statements but only to show the testator’s state of mind, after the undue influence had been established by other competent circumstantial evidence. The court did not err in admitting this testimony.

We have considered all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.

ON MOTION FOR REHEARING

Appellants contend in their motion for rehearing we erred in overruling their fifth point of error, “The evidence is insufficient to support the verdict of the jury.”

They assert this point is germane to assignments of error numbers one and three in their motion for a new trial. Assignment of error number one asserts there is no evidence that Woods acted under undue influence at the time he executed the will and the codicils and no evidence he was of unsound mind. Assignment number three contends the Court erred in overruling their motion for a directed verdict. Appellants now contend their fifth point of error presents a point on the factual sufficiency of the evidence. These assignments do not raise questions as to the factual sufficiency of the evidence. They present only “no evidence” contentions. A factually insufficient point cannot be predicated on these assignments. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

The motion for rehearing is overruled.