author: GUPTON, Judge.

text:
    Kenneth GRANVIEL, Appellant, v. The STATE of Texas, Appellee.
    No. 52732.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1976.
    Certiorari Denied May 23, 1977.
    See 97 S.Ct. 2642.

      Charles Dickens and Frank W. Sullivan, III, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

The offense is capital murder under V.T. C.A., Penal Code, Sec. 19.03(a)(2); the punishment, death.

Appellant was charged with the killing of Natasha McClendon while in the course of committing rape on another person. The sufficiency of the evidence to support the jury’s verdict of guilty is not challenged. The record reflects that on October 7,1974, appellant left work at 8:00 p. m. and drove to his apartment, where he watched the first half of a televised football game with his roommate. Appellant then decided to “go riding” because he wasn’t enjoying the game. He drove through his apartment complex to the McClendon apartment, which was located in the same complex. While driving around the block, appellant “got this urge to have sex” with Laura McClendon, although they had never had intercourse previously. Appellant testified he had known the McClendon girls for approximately three years. , He parked his car in front of the McClendon apartment and remained seated in it for several minutes. Through the open window of the apartment, he was able to see Laura inside.

At approximately 10 p. m. appellant walked up to the apartment and found the front door open. Appellant knocked and Laura invited him in. After some conversation, appellant asked for a drink of water. At that point, he was only interested in finishing the water and leaving. However, he returned the glass to the kitchen where Laura was cleaning the stove and her small son [Steven] was playing. Appellant then walked up behind Laura and placed a knife, which he had brought with him, to her throat. Appellant assumed Laura thought he was kidding. He told her to place her arms around him and smile so that Steven wouldn’t be nervous.

Appellant, Laura and Steven walked toward Laura’s bedroom with appellant locking the front door and closing the curtains on the way. Laura then told appellant that he “didn’t have to take it” at which time he put the knife in his back pocket. Appellant had Laura tie her son with a telephone cord appellant had ripped from the wall when Steven started crying. Next appellant tore a bedsheet in strips and bound and gagged both Steven and Laura. Appellant then laid Laura and Steven “face down” on the bed, at which time Martha and her two year old daughter Natasha entered the apartment with her cousin Linda.

After calling, “Where is Laura?” Martha entered the bathroom. Natasha entered Laura’s bedroom, saw appellant and ran to join her mother in the bathroom. At that time appellant covered Laura and Steven with a bedspread and Linda entered the room. Appellant showed her the knife and instructed her to lie down beside Laura on the bed.

Meanwhile, Martha left the bathroom and went into the livingroom. Appellant walked up behind her and grabbed her, throwing her on her head. Appellant then took Martha to her bedroom and bound her. He returned her to Laura’s bedroom where he bound and gagged the remaining members of the McClendon family. Appellant then left the apartment and moved his car.

Upon reentering the apartment, appellant took Laura to the back [Martha’s] bedroom and began removing her clothes. At this point he cut Laura on the inner thigh with his knife. Steven began crying and appellant placed him on a trunk in a closet of Laura’s room. Laura told appellant that Steven needed his asthma medication which appellant then gave him. Appellant raped Laura, after which they sat and talked for about an hour.

Steven began crying so appellant stabbed him several times, thereby breaking his knife. While appellant was stabbing Steven, someone knocked on the front door. Appellant went to the kitchen for another knife and threw the handle of the broken knife into the trash can and the blade into the sink.

Following a second conversation with Laura, appellant brought Martha to the back bedroom, where he cut her on both arms and raped her. Appellant returned to Laura’s bedroom for Linda; she wasn’t breathing at that time. Appellant then stabbed Linda several times. Natasha began “hollering” so appellant stabbed her several times as she lay on the floor between the bed and the dresser. He then “threw her on the bed” and stabbed her again.

Appellant returned to the back bedroom and talked with Laura before he began stabbing Martha and then Laura. Appellant then went through the women’s purses and removed their money. He left the apartment, leaving the second knife in the back bedroom. Laura, Linda, Martha, Natasha and Steven McClendon died as the result of these injuries.

Approximately four months later [February 8,1975] appellant spent the day playing cards with friends. Not long after he returned to his apartment, Betty Williams knocked on his front door and asked to use the telephone. Afterwards, she asked appellant if he had smoked someone else’s cigarettes that afternoon by mistake. Appellant threw her half a pack, but as she opened the door and started to leave he “had an urge”. Appellant suggested she take a full pack and told her it was in the bedroom. As Betty looked for the cigarettes, appellant walked up behind her, grabbed her, and “turned her upside down on her head.” She appeared dazed and appellant began removing her clothes.

At that point, Vera Hill, the woman with whom appellant lived, began to unlock the apartment door. Appellant took a knife from the kitchen and stabbed Vera until she fell. He returned to the bedroom and was attempting to rape Betty when he heard a knock on the door. He choked Betty to quiet her and then told his friend at the door to return later, because he [appellant] and Vera were fighting. Appellant moved Vera’s body to the kitchen so it could not be visible from the front door. Another knock on the front door went unanswered and appellant returned to the bedroom and raped Betty. In order to keep Betty quiet, appellant “tried to wrap her chin and neck around the bed post.” He then stabbed her and struck her head with a hammer. Vera Hill and Betty Williams both died from the injuries they received.

Appellant left his apartment after attempting to eat a sandwich and drove in his car for a while, ending at Wanda Hanson’s apartment. Wanda was not home, so appellant asked her mother, Lizzie Phillips, if he could use her phone. Mrs. Phillips allowed appellant into the apartment, following which he bound Mrs. Phillips and her two grandchildren. Appellant placed the small boy in a closet and was in the process of raping Mrs. Phillips when Wanda’s sister knocked on the front door. Appellant found a gun under Mrs. Phillips’ mattress and held it to the head of the entering woman. He directed her to the bathroom and allowed her to keep her son and daughter with her. Appellant also brought the baby its bottle.

Appellant took Mrs. Phillips to the living-room and raped her. He then went to the door and motioned for the daughter’s husband to come inside. The man was led to a closet and Mrs. Phillips was again taken to her bedroom and raped.

In the course of the third rape of Mrs. Phillips, Wanda and her boyfriend entered the apartment. Appellant announced that he and Wanda were going for a ride and ordered her family not to call the police for 12 hours because by that time he would have turned himself in.

After going to his apartment, appellant and Wanda drove to Rev. R. L. Spearman’s home and the three of them proceeded to the police station where appellant gave statements concerning both incidents.

In three grounds of error appellant asserts (1) V.T.C.A., Penal Code, Sec. 19.03 is unconstitutional because the punishment of death is not the least restrictive means to protect any compelling state interest, (2) the death penalty sanctions the arbitrary imposition of death as punishment in violation of the Eighth and Fourteenth Amendments to the U. S. Constitution, and (3) the death penalty constitutes cruel and unusual punishment. These contentions have been answered adversely to appellant in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929, and in Jurek v. State, Tex.Cr. App., 522 S.W.2d 934. See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913. Grounds of error one, fifteen and sixteen are overruled.

In his second ground of error appellant alleges the trial court erred in excluding five venirepersons for cause in violation of the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Donald L. Harrison stated that, “No, I could not” ever vote to inflict the death penalty and that this was a definite prejudice or feeling he would not change. Upon the State’s challenge for cause, appellant’s counsel stated, “We do not have any questions”, in response to the court’s inquiry if he had any objections to the exclusion of this person. The record shows that no questions were asked whatsoever. No error is shown. Boulware v. State, Tex.Cr.App., 542 S.W.2d 677 (1976).

Homer L. Lipscomb stated:

“Q [PROSECUTOR] You don’t think you could imagine any sort of case in which you feel the death penalty to be justified, then?
A No.”

He stated he didn’t believe in that form of punishment, and that no matter how terrible the crime might be, he wouldn’t want that on his mind and that this was a firm conviction that he wouldn’t let anyone talk him out of. Upon State’s challenge for cause, the appellant’s counsel made no objection, nor did he question this person. No error is shown. Boulware, supra.

Inez Wallace advised the trial judge before any questions were asked her that she was suffering with hypertension, her feet were swollen, she had physical problems and she felt she would be incapacitated for jury service. The trial judge ruled that she be questioned and “see how it goes”. She stated she believed in the Bible and that no one should kill anyone. She first stated she could give consideration to the death penalty, but then stated she didn’t think she could personally make decisions which might result in the death of another human being. Thereafter, she stated she had a deep-seated feeling that would prevent her from taking part in rendering the death penalty and that she just didn’t believe in it and this was a firm conviction nobody could talk her out of. The State then challenged her for cause. Then the following questions were propounded by the trial court:

“Q THE COURT: Mrs. Wallace, I am sure you do feel deep about this. Its brought tears to your eyes; is that right?
A Yes.
Q THE COURT: All right. I know it’s not an easy thing for you to go through here. The challenge for cause is sustained. Do you understand, Mrs. Wallace, nobody is unhappy with you. You have been excused, Mrs. Wallace. (Whereupon Juror Number thirty-six excused.)”

The trial court then excused this person. The appellant’s counsel made no objection to her exclusion from the panel, nor did he question this person. No error is shown. Boulware, supra.

Mrs. Ray F. Cox stated that she could not consider the death penalty under any facts or circumstances. The State then challenged her for cause. The court sustained the challenge and then excused her from the jury panel. Appellant’s counsel made no objection to her exclusion, nor did he question her. No error is shown. Boulware, supra.

Mrs. Mattie D. Vernon stated at first that she did not know whether or not she could ever vote to inflict the death penalty. She then stated, “I don’t guess I could because I mean a life is a life.” She then stated again that she did not know. Thereafter she stated she would have religious or conscientious scruples against the death penalty, and again stated that she didn’t know. Finally, she responded as follows:

“Q [PROSECUTOR] Well, as I say, Mrs. Vernon, I am sorry to have to push you, but we need to know and if you could not do that, why now is the time to tell us and there is nothing wrong with it whatsoever.
A No, I couldn’t.
Q You could not?
A No, sir.
Q And that is — I appreciate your telling us and do you tell us no matter what kind of case it was if you were the juror you couldn’t vote to give the death penalty?
A No.
Q Okay.
I take it, Mrs. Vernon, and that is an affirmative opinion that you have?
A Yes.
Q All right.
[PROSECUTOR]: We challenge, Your Honor.
THE COURT: All right.
The challenge is allowed and granted on the basis of Witherspoon versus Illinois. Mrs. Vernon, you are excused from jury service. (Whereupon, Juror number sixty-five excused.)”

Then after the challenge was sustained and after the juror was excused, defense counsel excepted to the court’s ruling because she never did say “she would automatically vote against the death penalty” in every case. Appellant’s counsel did not ask any questions of this person, and did not timely object to the court’s ruling excluding her from jury service. His objection was made after she had been excused and retired from the venire panel. The trial judge was present to hear the tone of voice and observe the demeanor of the person; he certainly interpreted this answer to mean (as the context shows it to mean), “No, I couldn’t.” Her responses were tantamount to an admission that her personal beliefs about the imposition of the death penalty would prevent her from being an impartial juror. We find Mrs. Vernon was not excused in violation of the standards of Witherspoon. See White v. State, Tex.Cr.App., 543 S.W.2d 104 (1976); Tezeno v. State, Tex.Cr.App., 484 S.W.2d 374. Appellant’s second ground of error is overruled.

Appellant’s third ground of error alleges the indictment is fundamentally defective for failure to allege the elements of aggravated rape and the name of the victim.

Omitting the formal parts, the indictment alleges appellant on or about October 7, 1974, “did then and there intentionally and knowingly cause the death of an individual, NATASHA McClendon, by cutting the said NATASHA McCLENDON with a knife, and that the said • Kenneth Granviel was then and there in the course of committing and attempting to commit aggravated rape.”

Appellant’s motion to quash the indictment which set forth the same defects now urged on appeal was filed the 12th day of the trial and was overruled by the trial court.

In Vaughn v. State, 530 S.W.2d 558, this Court held an indictment alleging burglary of a habitation with intent to commit injury to a child could not be challenged on appeal for failure to name the child absent a written motion to quash. Appellant’s motion to quash, filed eleven days after commencement of the trial, was not timely. Bond v. State, 171 Tex.Cr.R. 119, 345 S.W.2d 520. Appellant may not now complain of the failure to name in the indictment the victim of the aggravated rape.

In Smith v. State, 540 S.W.2d 693, we held that an indictment for capital murder under Art. 1257, V.A.P.C. was not fundamentally defective because it did not set out the elements of robbery in an indictment charging murder during the commission or attempted commission of robbery.

Appellant contends the cases relied on in Smith, supra, are distinguishable because “the actual commission of the offense of aggravated rape is a prerequisite to the commission of capital murder based on aggravated rape” and “the ‘aggravated rape’ in a capital murder case must be a completed act.” Appellant’s argument is without merit. V.T.C.A., Penal Code, Sec. 19.-03(a)(2) defines capital murder as murder committed “in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated rape or arson.” Appellant was indicted for capital murder in the course of committing or attempting to commit aggravated rape. Thus the actual commission of aggravated rape is not prerequisite to the commission of capital murder under Sec. 19.03(a)(2), supra. See and compare Livingston v. State, Tex.Cr.App., 542 S.W.2d 655 (1976).

Appellant contends that the attorney-client privilege was violated by the State’s subpoenaing and calling to the witness stand psychiatrist John T. Holbrook, who was appointed to examine appellant at the request of appellant’s court appointed' counsel. Appellant contends that Dr. Hol-brook was an agent of appellant’s trial counsel because he was employed to assist them in the preparation of the defense in the trial. The appellant’s only defense is that he was insane at the time of the commission of the offense.

On the written request of appellant the court appointed Charles Dickens and Frank Sullivan, Esquires, practicing attorneys, to defend him on February 13, 1975. Appellant’s counsel then contacted Dr. Holbrook, a psychiatrist, some time before April 26, 1975, and requested him to examine appellant in the Tarrant County Jail. These examinations were made on April 26 and May 16, 1975. Present at both examinations were the psychiatrist, appellant and counsel. Dr. Holbrook stated that appellant satisfactorily communicated with him and responded to his questions during the examination.

On May 22, 1975, upon counsel’s written motion, the trial court appointed Dr. John T. Holbrook “to examine the defendant in the Tarrant County Jail at any and all times that are convenient both to Dr. John Holbrook and the Sheriff”. On the same date the court upon appellant’s counsel’s written notice appointed Dr. M. Jerold May to administer psychological tests to appellant at his office in Fort Worth, which tests were made at a later date. On August 9, 1975, upon the State’s request the court appointed Dr. Hugh Brown, a psychiatrist, to examine appellant at the Tarrant County Jail. Dr. Brown wrote the court of his inability to examine appellant because appellant refused to talk to him without his counsel being present. Dr. John Methner, a court appointed psychiatrist requested by the State, testified that on April 13, 1975, when he tried to examine the appellant in the presence of his counsel, he was unable to do so because appellant refused to talk to him or cooperate for the examination. Counsel stated that he advised the appellant that he did not have to talk to the psychiatrist (Dr. Methner); however, the psychiatrist did get to observe appellant for a while.

Art. 46.02, Sec. 2(f), V.A.C.C.P., as amended August 30, 1971, and effective at the date of the appointment of Dr. Hol-brook on May 22, 1975, provides:

“(1) The court may, at its discretion appoint disinterested qualified experts to examine the defendant with regard to his present competency to stand trial and as to his sanity, and to testify thereto at any trial or hearing in connection to the accusation against the accused .
******
(4) No statement made by the defendant during examination into his competency shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding no matter under what circumstances such examination takes place.
(5) Any party may introduce other competent testimony regarding the defendant’s competency.”

Under this statute, the trial court’s allowing Dr. Holbrook to testify was proper. “[A]ppoint disinterested qualified experts to examine the defendant . . . ” clearly means that such expert is not appointed by the court as the expert of the State or the defense, but is the court’s disinterested expert. He may appoint such expert at his discretion and without a motion therefore, and either party may subpoena such witness. Therefore, no attorney-client privilege exists as to Dr. Holbrook.

In Stultz v. State, 500 S.W.2d 853, this Court said:

“A psychiatric examination is not an adversary proceeding. Its purpose is not to aid in establishment of facts showing that an accused committed certain acts constituting a crime; rather, its sole purpose is to enable an expert to form an opinion as to an accused’s mental capacity to form a criminal intent.
Because of the intimate, personal and highly subjective nature of a psychiatric examination, the presence of a third party in a legal and non-medical capacity would severely limit the efficacy of the examination ...” (Emphasis added)

Compare Walker v. State, 19 Tex.Crim.R. 176 (1885). See also Gholson v. State, Tex.Cr.App., 542 S.W.2d 395 (1976).

Art. 46.03, Sec. 3, V.A.C.C.P. effective June 19, 1975, provides as follows:

“(a) If notice of intention to raise the insanity defense is filed under Section 2 of this article, the court may, on its own motion or motion by the defendant, his counsel, or the prosecuting attorney, appoint disinterested experts experienced and qualified in mental health or mental retardation to examine the defendant with regard to the insanity defense and to testify thereto at any trial or hearing on this issue, but the court may not order the defendant to a state mental hospital for examination without the consent of the head of the state mental hospital.
* ⅜: * * * ‡
(d) A written report of the examination shall be submitted to the court within 21 days of the order of examination and the court shall furnish copies of the report to the defense counsel and prosecuting attorney. The report shall include a description of the procedures used in the examination and the examiner’s observations and findings pertaining to the insanity defense.
‡ ⅜ ⅝ ⅜ ⅜ ⅜
(g) The experts appointed under this section to examine the defendant with regard to the insanity defense also may be appointed by the court to examine the defendant with regard to his competency to stand trial pursuant to Section 3 of Article 46.02 of this code, provided that separate written reports concerning the defendant’s competency to stand trial and the insanity defense shall be filed with the court.”

Cf. Article 46.02, Sec. 3, V.A.C.C.P. (Incompetency to stand trial).

A procedural statute controls litigation from its effective date. Wilson v. State, Tex.Cr.App., 473 S.W.2d 532. The trial of the instant case was in October 1975, and Article 46.03, Sec. 3, supra, was then effective and controlling. Wilson, supra. Cf. McCarter v. State, 527 S.W.2d 296.

Articles 46.03 and 46.02, supra, negate the contention of appellant that the attorney-client privilege was violated. Both the State and appellant had the right to subpoena the psychiatrist and adduce his testimony at the trial. There is no difference in the result when the examinations were completed before the appointment was made, as in the instant case, and when a psychiatrist is appointed by the court and then makes his examination.

Communications between a physician and his patient are not privileged under Texas Law. Texas has no statute establishing the privilege and the courts invariably deny its recognition. See Bonewald v. State, 157 Tex.Cr.R. 521, 251 S.W.2d 255.

The general rule is that communications between physicians and patients in the absence of statute are not privileged. Dodd v. State, 83 Tex.Cr.R. 160, 201 S.W. 1014, 1015.

Our statute does not exempt a physician and his patient relationship as privileged communications.

Art. 38.10, V.A.C.C.P., effective June 15, 1971, provides:

“All other persons except those enumerated in Articles 38.06, 38.101, and 38.11, whatever may be the relationship between the defendant and witness, are competent to testify, except that an attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which came to the knowledge of such attorney by reason of such relationship.”

There is no affirmative evidence in the instant case showing that Dr. Holbrook revealed any fact or communication between him and appellant showing that appellant committed a crime of any nature. The testimony shows to the contrary that Dr. Holbrook never communicated to anyone in the district attorney’s office any such statements or facts, if any, resulting from the examinations he made of appellant as to his sanity or his competency. Therefore, Article 46.02, Sec. 2(f)(4), supra, and Article 46.03, Sec. 3, supra, have not been violated.

Appellant claims that Dr. Holbrook’s examination was necessary to his defense of insanity and failure to request the examination would have been ineffective assistance of counsel. Appellant contends that by employing Dr. Holbrook he created an involuntary State’s witness who gave testimony adverse to appellant relating to Special Issue No. 2 under Article 37.071(b)(2), V.A.C. C.P. In view of our previous discussion of the status of Dr. Holbrook as a disinterested expert witness under Articles 46.02, Sec. 2(f) and 46.03, Sec. 3, this contention is without merit.

Appellant further contends that the trial court erred when it ordered that the report of Dr. May, a psychologist appointed at appellant’s request, be turned over to the State. This was proper under Article 46.03, Sec. 3(d), supra. Grounds of error four and five are overruled.

Appellant’s sixth, seventh and eighth grounds of error allege denial of due process under Art. 37.071(b)(2), V.A.C.C.P. Appellant contends the phrase “a probability” is vague and overbroad and presents no intelligible standard to guide the jurors in their deliberations.

In Jurek v. State, 622 S.W.2d 934, this Court rejected the contention that Art. 37.-071 was too vague to provide adequate guidance to the jury, notwithstanding the absence in the statute of an exhaustive and precise list of factors. This Court then enumerated viable and readily apparent factors for the jury’s consideration “in determining the likelihood that the defendant would be a continuing threat to society.” Jurek, at page 939. See also Jurek v. Texas, supra, 428 U.S. 262, 96 S.Ct. at 2956; Gholson v. State, supra.

Art. 3.01, V.A.C.C.P. provides that words and phrases not specifically defined “are to be taken and understood in their usual acceptance in common language.” Words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence have been held not to be vague and indefinite. See McMorris v. State, Tex.Cr.App., 516 S.W.2d 927; Page v. State, Tex.Cr.App., 492 S.W.2d 573.

We hold the phrase “a probability” as that term appears in Art. 37.071(b)(2), supra, is not so vague that men of common intelligence must guess as to its meaning and differ as to its application. See also Art. 37.071(c), V.A.C.C.P., which provides that the probability that the defendant would commit criminal acts of violence must be proved beyond a reasonable doubt. Appellant’s sixth ground of error is overruled.

Appellant also contends the punishment of death for future conduct authorized by Art. 37.071(b)(2), supra, is unconstitutional. The Supreme Court of the United States in Jurek v. Texas, supra, was confronted with the argument that it is impossible to predict future behavior and that Art. 37.071(b)(2), supra, is so vague as to be meaningless. The Supreme Court wrote:

"It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system.
# # * # * #
The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.” 96 S.Ct. at pages 2957-2958.

Appellant’s seventh ground of error is overruled.

Appellant asserts Art. 37.071(b)(2), supra, has a chilling effect on the defense of insanity. Appellant claims he is in the position of not using an expert witness on the issue of insanity or running the risk of having his own expert testify on cross examination to matters relating to punishment.

In support of this contention appellant points to the following question asked of Dr. May during cross examination at the guilt stage of the trial:

“Q [BY PROSECUTOR]: He is, is he not, a dangerous individual, is he not?
A Definitely.
[DEFENSE ATTORNEY]: I am going to object. That is not relevant at this point. It is not relevant in this part of the trial.
THE COURT: Overruled.
[DEFENSE ATTORNEY]: Note my exception.”

Appellant’s objection was not timely because this information was already before the jury. Prior to the testimony quoted above, the following occurred:

“Q [BY PROSECUTOR]: Doctor, [Dr. May] do you not think this man is a dangerous individual?
A I certainly do.”

This testimony was received without objection. Appellant waived any objection to the testimony now complained of. Sherbert v. State, Tex.Cr.App., 531 S.W.2d 636; Guzman v. State, Tex.Cr.App., 521 S.W.2d 267.

Appellant also directs our attention to the following testimony on cross examination at the guilt stage of the trial:

“Q [BY PROSECUTOR]: Dr. May, do you have an opinion based upon your experience and your examination of Kenneth Granviel, as to whether or not there is a probability that he would commit criminal acts of violence in the future so as to constitute a continuing threat to society?
[DEFENSE ATTORNEY]: I’m going to object. That is not relevant at this stage of the hearing and besides, this is our own witness and we are heading up with 37.071(b)(2) again, which we have got motions in the record and it’s immaterial at this point in the testimony.
THE COURT: Sustain the objection.
[DEFENSE ATTORNEY]: I will ask the court to instruct the jury to disregard counsel’s question.
THE COURT: Ladies and gentlemen, disregard the last question.
[DEFENSE ATTORNEY]: At this point, the Court has done all within its power to eradicate the prejudicial question of the prosecutor and I would ask for a mistrial.
THE COURT: Motion is overruled.”

Although the question was not relevant at the guilt or innocence phase of the trial, the question was not answered. The trial court’s action in instructing the jury to disregard the improper question removed any prejudicial effect. Smith, supra; Carey v. State, Tex.Cr.App., 537 S.W.2d 757; Ashley v. State, Tex.Cr.App., 527 S.W.2d 302. We cannot agree that Article 37.071(b)(2) itself has a chilling effect on the defense of insanity, because nothing therein authorizes the cross examination of an expert witness for the defense on insanity as to matters relating to punishment which should be developed at the penalty stage of the trial.

Ground of error eight is overruled.

In his ninth ground of error appellant complains of the State’s failure to tender appellant’s 1969 Texas Youth Council Record to the defense before trial in compliance with court-ordered discovery of records pertaining to appellant’s mental condition. Appellant does not complain that he was deprived of the record, only that it was not furnished until two weeks into the trial. The report consists of 52 pages containing personal history, discipline reports, incident reports and medical examinations.

During direct examination, Dr. Grove, a psychiatrist testifying for the State, was given the report in order to refresh his memory. Dr. Grove’s report comprised one page from appellant’s 52 page file. Appellant objected and the trial court instructed the prosecution to furnish a copy of the report to the defense for cross examination purposes. The trial court had the record marked and introduced only for purposes of the record.

The State argues that this case is controlled by Florio v. State, Tex.Cr.App., 532 S.W.2d 614. In Florio the defendant made a motion for discovery of all scientific tests, including blood tests. The defendant then introduced his service revolver into evidence, following which the State called an expert witness who testified that traces of blood had been found on the butt of the gun. The defendant had no knowledge of these test results. He argued that he would not have introduced the gun into evidence if he had known about the traces of blood. This Court held that although fairness required that the State disclose the test results to the defendant, we could not conclude that evidence materially affected the determination of guilt.

Similarly, in the instant case, fairness required that the State turn over a copy of the report when it came into the State’s possession. There is no merit to the argument that it was relieved of this burden because it did not have a copy of the report at the time the court ordered discovery or because appellant failed to show at what time the State obtained possession of the report. The State is under a continuing burden of disclosure. Smith v. State, Tex.Cr.App., 516 S.W.2d 415.

However, on the facts of this case we cannot conclude that the State’s delay in furnishing the report constitutes reversible error. Dr. Grove used the one page report to refresh his memory and testified that appellant was not suffering from mental illness, but had a psychopathic disorder. There were other State psychiatric witnesses with similar testimony. Furthermore, appellant cannot claim surprise, since defense counsel was aware that appellant had been in the Texas Youth Council facilities in Gatesville and it would be reasonable to assume that he had a Texas Youth Council record. Appellant points out there was a notation in the 52 page record requesting that appellant consult with a psychiatrist, “to determine whether or not there are any important psychological problems and to seek assistance in the formulation of plans for the subject.” He argues that this notation is enough to show “that a potential defense witness was concealed by the State’s failure to comply with the court’s orders.” We disagree. We conclude, as we did in Florio, that knowledge by appellant's counsel during the trial of the notation in appellant’s juvenile record that psychological consultation was requested would not have had a material effect on the outcome of the trial. We cannot conclude it was reversible error.

In his tenth ground of error appellant asserts the selection of prospective jurors in Tarrant County from the lists of registered voters deprived appellant of his constitutional right to be tried by a jury representing a cross section of the community.

In Nolan v. U. S., 395 F.2d 283 (5th Cir.1968), the Fifth Circuit Court of Appeals said:

“The fact that the list was compiled primarily from a list of registered voters does not show that the list did not reflect a fair cross section of the community.” Id. at page 286.

In Shelby v. State, Tex.Cr.App., 479 S.W.2d 31, the defendant contended that selection of prospective jurors in Lubbock County from voter registration lists resulted in juries which did not reflect a cross section of the population of the county. In upholding this manner of filling the jury wheel, this Court said:

“We simply cannot conclude on the basis of the record before us or as a matter of judicial notice that the use of the voter registration list as the sole source for prospective jurors deprived this appellant of due process and equal protection of the laws, nor are we prepared to announce in light of presently available information, a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.” Id. at page 40.

Appellant contends he has now supplied the information necessary to show that jurors selected from the lists of registered voters does not represent a cross section of the community. Appellant offered the testimony of witness Stacy, an expert witness in the field of demography. Stacy testified that based on the 1972 Bureau of Census Publication compiled from the 1970 census, there were 423,000 people in Tarrant County over the age of 18 and there were 298,-000 voters.

Appellant introduced as defense exhibit one a profile of the economic, social demographic characteristics of Tarrant County. Witness Stacy testified as to the racial composition of the county; the employment status, occupation classification, educational level, and marital status for all races; the percentage of races by sex; the proportion of owner occupied and renter occupied housing according to race; and the mean and median income of each race for families and for unrelated individuals.

In response to a hypothetical question, Stacy stated twelve jurors with the same characteristics as the twelve jurors in the instant case were not representative of a cross section of the community, because they were older, more educated, earned a higher average income, were unbalanced sexually and racially, and proportionately more of the jurors were married and owned their own homes. In response to the court’s inquiry, Stacy stated any jury in Tarrant County selected in the same manner as the hypothetical jury (i. e., from voter registration lists) would be very similar in economic, social and demographic characteristics to the hypothetical jury.

Appellant does not contend a particular race has been systematically excluded from the jury selection process. See Rodriguez v. State, Tex.Cr.App., 513 S.W.2d 22. Nor does appellant suggest that petit juries should be racially proportionate. See Partida v. State, Tex.Cr.App., 506 S.W.2d 209. Appellant’s contention, if we understand the same, is the method of selecting prospective jurors from voter registration lists is patently unconstitutional because it results in jurors of above average income, education and age, and in jury panels which are unbalanced sexually and racially. In U. S. v. Dangler, 422 F.2d 344, 345 (5th Cir. 1970) the Fifth Circuit said:

“We have approved the use of voter registration lists as the sole source of names for jury duty unless it results in the systematic exclusion of ‘a cognizable group or class of qualified citizens.’ Camp v. U. S., 5th Cir. 1969, 413 F.2d 419. And we have held that those who do not choose to register cannot be considered a cognizable group. Grimes v. U. S., 5th Cir. 1968, 391 F.2d 709, cert. denied, 393 U.S. 825, 89 S.Ct. 87, 21 L.Ed.2d 96.”

Appellant has not established a prima facie case of discrimination or systematic exclusion of a cognizable group or class of qualified citizens. This ground of error is overruled.

Appellant complains that the trial court erred by admitting into evidence 18 pages of medical records from John Peter Smith Hospital about appellant’s sanity in 1967 on the grounds that these records were a written report which was hearsay and inadmissible.

The trial court allowed appellant to reopen this case after closing of the guilt-innocence stage. Appellant then testified about this alleged crime and examinations by psychiatrists, medical doctors and other matters including the 1967 stay in the hospital. After the conclusion of appellant’s testimony, the State introduced the medical records for the purpose of rebuttal of appellant’s testimony. These records were introduced under the Business Records Act, Art. 3737e, Sec. 5, V.A.C.S., which provides:

“Any record or set of records or photographically reproduced copies of such records, which would be admissible pursuant to the provisions of Sections 1 through 4 shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Sections 1 through 4 above, that such records attached to such affidavit were in fact so kept as required by Sections 1 through 4 above, provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen (14) days prior to the day upon which trial of said cause commences, . . . ”

The required affidavit was properly executed by Dorothy Copus, Custodian of the Medical Records of the hospital, attached to the medical records and was sworn and subscribed to before a Tarrant County Notary Public on September 26, 1975. This affidavit complies with the recommended form in Art. 3737e, Sec. 7, V.A.C.S. See Moton v. State, Tex.Cr.App., 540 S.W.2d 715.

Appellant’s objection to the admission of the medical records was “on the grounds of hearsay.” The trial court overruled the objection and admitted the records. At this time the State started to read the affidavit attached to the medical records. Appellant’s counsel requested that he discuss a matter of law. The jury was then retired and a proceeding was held. Appellant’s counsel objected: “I take it at this time the State is trying to reopen its case and I would object to that”. The State replied explaining to the trial court about the medical records and stated, “We offer them for that purpose of rebuttal of his [appellant’s] testimony.” The Court stated: “I am of the opinion they are admissible. Objection overruled.” Appellant’s counsel then stated he had nothing further to offer at that time. The jury was then returned to the jury box.

The State then read the affidavit and from the medical records to the jury. Appellant’s counsel again objected that Dr. Muller’s notations in the medical records “are conclusions — and hearsay”. The trial court overruled the objections. At this time appellant’s counsel requested “the District Attorney or somebody can read the entire evidence to the jury or I assume they can take it back to the jury room and read it themselves. There is [sic] things he left out.” The court replied: “The exhibit is in evidence and should the jury desire to have the evidence, they may have it.” Then the parties closed the case.

Appellant now claims that the medical records are not admissible because Art. 3737e, Sec. 5, supra, was not complied with in that it requires the medical records introduced be on file 14 days before the trial. The only date on the records is September 25, 1975 (the date of the affidavit by the custodian of the hospital medical records) which appellant’s counsel used in his belated contention that 11 days only lapsed before the records were admitted in evidence herein. The record reveals the trial began on October 6, 1975.

This Court held in Coulter v. State, Tex.Cr.App., 494 S.W.2d 876, 883:

“The statute permitting the admission of such records should be liberally construed but not mechanistically applied.”

This act is applicable to criminal cases. Coulter, supra.

The objections on the record of the instant case were too general and untimely without stating the specific grounds and pointing them out to the court. An objection must be made as soon as the ground of objection becomes apparent. Forbes v. State, Tex.Cr.App., 513 S.W.2d 72, 80, and cases cited therein; Williams v. State, Tex.Cr.App., 531 S.W.2d 606. It is not error to overrule an objection that is to general to advise the trial court of that portion of the exhibit to which the objection is directed. Bouchillon v. State, 540 S.W.2d 319. See also Argonaut Southwest Insurance Company v. Morris, 420 S.W.2d 760 (Tex.Civ.App.1967). Admission or exclusion of hospital records is not reversible error in absence of a showing of harm to the complaining party. Argonaut Insurance Company v. Titus, 347 S.W.2d 372 (Tex.Civ.App.1961).

In addition to appellant’s testimony, there is evidence in the records about diagnosis of appellant’s sanity by medical doctors and specialists in the medical profession. Huff v. Insurance Company of North America, 394 S.W.2d 849 (Tex.Civ.App.1965) (n. r. e.), held an unsigned typewritten copy of a doctor’s medical record in a workmen’s compensation case was not offered in compliance with Art. 3737e, supra, and was properly excluded by the court but, in the event its exclusion was improper, any resulting error was harmless and would not require a reversal against claimant.

Appellant contends in his brief that he was denied the opportunity to cross examine Dr. Muller, who did not testify, and that the medical records contain (a) a diagnosis that appellant was “found to be intelligent and no [sic] psychotic” that does not rest on a reasonable medical certainty, and (b) there is no proof that the information upon which Dr. Muller relied was “a memorandum or record of an act, event or condition” made by “an employee or representative” of the hospital “with personal knowledge of such act, event or condition”, as required by Art, 3737e, Sec. 1(a) and (b), supra. There was no objection made on these grounds at the trial and no harm has been shown; therefore the complaint comes too late.

A recorded diagnosis is hearsay evidence in hospital records, but is admissible if the diagnosis is one upon which competent physicians would normally agree. Eubanks v. Winn, 469 S.W.2d 292 (Tex.Civ.App.1971) (ref. n. r. e.)

It would be unusual for a medical doctor to write a legal predicate in the hospital record of his diagnosis of his patient “that my diagnosis is _ and my decision rests on a reasonable medical certainty” (or probability).

Dr. Muller signed his own report in the medical records on March 27, 1967, and relied on his own observation and examinations of the appellant during his six day stay in the John Peter Smith Hospital and in all probability relied on the information from his mother, brother and Juvenile Probation Officers that assisted in subduing appellant and bringing him to the hospital. See and compare Gonzales v. Gilliam, 506 S.W.2d 650 (Tex.Civ.App.1974).

There being an untimely and general objection and no showing of harm, ground of error eleven is overruled.

Appellant’s twelfth ground of error complains of the refusal of the trial court to include in the court’s charge to the jury appellant’s specially requested charge No. 1. Appellant timely filed a written instruction which would have informed the jury of the effect of a finding of not guilty by reason of insanity under the provisions of Art. 46.03, Secs. 4(a) and 4(b), V.A.C.C.P.

The jury was charged on the law applicable to the defense of insanity under V.T. C.A., Penal Code, Sec. 8.01. Viewing the charge as a whole, failure to submit appellant’s requested charge was not calculated to injure appellant’s rights. See Art. 36.19, V.A.C.C.P.

We find Art. 46.03, supra, to be directory and a guideline for the trial court rather than a matter for the jury’s concern. The trial court did not err in denying appellant’s specially requested charge.

Appellant claims the evidence is insufficient to support the jury’s answer of “yes” to Special Issue No. 1 of Art. 37.071, V.A.C.C.P. He argues that the evidence does not show that the killing of Natasha McClendon was the result of any “premeditation” or deliberation. He asserts that his purpose in going to the McClendon apartment was to have sexual intercourse with Laura McClendon (Natasha’s aunt), not to kill anyone. Therefore, appellant contends Natasha’s killing had none of the characteristics of a “weighed”, “pondered upon” act because it “occurred in a frenzy”. We do not agree with appellant’s interpretation of Art. 37.071(b)(1), supra. The statutory requirements that appellant’s conduct be committed deliberately does not mean that it must be a premeditated act. There is sufficient evidence in the record from which jury could conclude that when appellant deliberately stabbed the bound and gagged two year old Natasha nine times as she lay on the floor and the bed, he could reasonably expect that her death would result.

Appellant further challenges the sufficiency of the evidence to warrant the jury’s answer of “yes” to Special Issue No. 2. However, four months after the events surrounding Natasha’s death, appellant engaged in similar conduct: he killed two women in his apartment, raping one of them. Appellant then drove to the home of a third woman, where he repeated behavior similar to that he exhibited four months earlier in the McClendon apartment by again tying up the children while raping the women.

Appellant argues that under Smith v. State, Tex.Cr.App., 540 S.W.2d 693, the jury did not have sufficient evidence to support the punishment assessed. In Smith, this Court examined the sufficiency of the evidence to support an affirmative answer to Special Issue No. 2 and considered the following factors: defendant’s prior narcotics charges; defendant’s failure at rehabilitation and lack of employment; the fact that he was not under a mental or emotional pressure nor was he acting under the domination of some third person; his lack of remorse after the killing; and psychiatric testimony that defendant had a sociopathic personality and would be likely to have the same patterns of conduct in the future. This Court held that evidence was adequate to uphold the jury’s affirmative answer to Special Issue No. 2.

Appellant attempts to distinguish the instant case from Smith in several ways. He urges that if rehabilitation and steady employment are criteria taken into consideration, he has a history of steady employment and a strong religious background. He notes further that as to the issue of remorselessness, appellant turned himself in, at which time he expressed the desire to “get . . . some help”. Finally appellant distinguishes the psychiatric testimony given in each of the cases. In Smith, the testimony indicated that there was “no cure for persons who were suffering from the type of personality disorder demonstrated by appellant.” In the instant case there was State’s evidence by John P. Methner, D.O., that appellant didn’t have a major mental illness, but had an antisocial personality disorder. He testified that patients with severe antisocial personality disorders often tend to “burn out” between the ages of 35 through 42.

In answering Special Issue No. 2, the jury had before it evidence of the second incident of similar violent behavior. Additionally, Dr. Methner testified there was a high frequency of repetitiveness in terms of aggressive behavior among those with severe personality disorders. He noted that one of the characteristics of the disorder is that the patient cannot learn from past behavior and tends to be repetitive. We hold this evidence is sufficient to uphold the jury’s finding that there was a probability that appellant would constitute a continuing threat to society. See Moore v. State, Tex. Cr.App., 542 S.W.2d 664 (1976). Appellant’s thirteenth ground of error is overruled.

As we understand appellant’s fourteenth ground of error, he complains that the trial court erred in overruling his motion to prevent the State from qualifying the jury on the death penalty. V.T.C.A., Penal Code, Sec. 12.31(b), requires that prospective jurors be informed of the mandatory death sentence or life imprisonment on the conviction of a capital felony. It further provides that a juror will be disqualified unless he states under oath that such mandatory punishment will not affect his deliberation of any issue of fact.

Appellant argues that Sec. 12.31(b) is unconstitutional “because it denies defendant the right to be tried by a representative jury during the guilt-innocence stage of the trial.” Appellant cites various post- Wither-spoon surveys which tend to show that the same people who can be “death-penalty qualified” are also likely to be “conviction-prone”.

Art. 35.16(b), V.A.C.C.P., permits the State to challenge a prospective juror for cause if it is shown:

“1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty;
% * * * * *
3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." (Emphasis added).

We hold that Sec. 12.31(b) is a constitutionally permissible procedure for determining if such bias exists.

Appellant also claims he was denied equal protection “because a different jury selection process is employed against the class of persons accused of capital crimes without any rational or reasonable justification for applying such procedure.” The Texas statutory scheme for capital murder, including the possible infliction of the death penalty, has been held constitutional. See Jurek v. Texas, supra. See also Whitmore v. State, Tex.Cr.App., (No. 52,325, delivered October 13, 1976); Gholson v. state, supra. Appellant’s fourteenth ground of error is overruled.

The judgment is affirmed.

ROBERTS, J., concurs in the results.

      . Laura and Martha McClendon were sisters. Linda McClendon was a cousin.

      . These cases are Gonzales v. State, Tex.Cr.App., 517 S.W.2d 785; Watts v. State, Tex.Cr.App., 516 S.W.2d 414; and Earl v. State, Tex.Cr.App., 514 S.W.2d 273. These cases hold indictments for burglary with intent to commit theft and for aggravated robbery need not allege the elements of theft.

      .Art 38.06 excepts insane persons, children or other persons who do not possess sufficient intellect to relate transactions and do not understand the oath.

      . Art. 38.101, Communications with persons in the treatment or examination of drug abusers, etc.

      . Husband or wife as witnesses against each other in criminal prosecutions.

      . “Likelihood” is one of the definitions for “probability” in Webster’s Unabridged Dictionary, 2d Ed. (1948). Other definitions of the word probability include “reasonable ground for presuming”, “true, real, or likely to occur”, “a conclusion that is not proof but follows logically from such evidence as is available”, “in the doctrine of chance, the likelihood of the occurrence of any particular form of an event”.

      . In a pre-trial hearing the trial judge described the scope of the order as including matters “[S]uch as reports from psychiatrists, psychologists, medical reports, experts, any neighbor or acquaintance who might allege to have known the defendant 25 years and he is far out or not far out. That type of thing.”

      . Art. 37.071(b)(1) states:
      “(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased would result;”

      . Art. 37.071(b)(2) states:
      “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;”


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Donna Kay BANNISTER, Appellant, v. The STATE of Texas, Appellee.
    No. 50633.
    Court of Criminal Appeals of Texas.
    June 1, 1977.
    W. John Allison, Jr., Dallas, on appeal only, for appellant.

      Henry Wade, Dist. Atty., Maridell J. Templeton and Dan P. Garrigan, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

On July 8,1974 the appellant, Donna Kay Bannister, entered a guilty plea in the Criminal District Court of Dallas County under the false name of Tasha Diane Williams to the offense of burglary of a habitation, a first degree felony. The record before us reflects that she gave her age as 19 or 20 and led her court-appointed counsel to believe she was 22 years of age. It appears, however, at the time she was only 15 years of age and was an escapee from the Gaines-ville State Training School. After receiving a five (5) year probated sentence, she and a friend, who also received probation, decided not to report to the probation officer as required. Apparently they were later returned to Gainesville and only subsequently was she brought before the court for revocation of probation. Then for the first time she claimed she was in fact Donna Kay Bannister and at the time of her guilty plea she was only 15 years of age. Her appointed counsel offered a birth certificate reflecting February 2, 1959 as her birth date and claimed the District Court was without jurisdiction and never acquired the same as there was never a discretionary transfer of jurisdiction from the Juvenile Court and won a stipulation from the State that such transfer had never occurred. The District Court overruled the jurisdictional plea and revoked probation. This appeal followed.

In view of V.T.C.A., Family Code, § 54.02, § 51.08 and § 51.09, and Y.T.C.A., Penal Code, § 8.07, it appears that the appellant has played the game of “courts” and won. It does not appear that under these statutes the appellant waived her rights to be tried as a juvenile despite her actions in misleading the trial court at the time of her conviction.

It may be well to take a look as to how we arrived at this unusual set of events.

Prior to 1889, all persons convicted of a felony unless under the age of nine or between the age of nine and thirteen and having insufficient discretion to understand the nature and illegality of the alleged act were liable to the same punishment. Penal Code of 1856, Article 36.

By Acts April 2,1889, p. 95, ch. 12, incorporated into the 1895 Code of Criminal Procedure as Articles 1145 and 1146, it was for the first time required that when a male person under the age of sixteen years was convicted of a felony and his punishment was assessed at imprisonment for five years or less he should not be confined in the penitentiary but in the reformatory established and located at Gatesville. Article 1145, supra, as amended in 1909 (Acts of 1909, p. 100), provided a procedure for raising the question of juvenility. It provided that when an indictment is returned charging a male juvenile under the age of sixteen years with a felony the parent, guardian, attorney or next friend of the juvenile or the juvenile himself may file a sworn statement setting forth the age of the juvenile at any time before the announcement of ready is made.

This statute was interpreted in Ragsdale v. State, 61 Tex.Cr.R. 145, 134 S.W. 234 (Tex.Cr.App.1911). There, sworn statements were filed showing that the two defendants were twelve and thirteen years of age. The court nevertheless in its discretion tried the defendants as adults and the conviction of Ragsdale was upheld on appeal since Article 1145, supra, provided that the judge could, upon determining juvenility, dismiss the prosecution and transfer the defendant to juvenile court “or the judge of the district court may, in his discretion, proceed to try said cause as provided by law.”

The Code of Criminal Procedure was revised in 1911 and former Articles 1145 and 1146 became Articles 1195 and 1196. Article 1195 was amended in 1913 raising the age of male juveniles to seventeen years, providing for the same procedure for raising the question of age but removing the discretion formerly given the trial court.

In McLaren v. State, 82 Tex.Cr.R. 449, 199 S.W. 811 (Tex.Cr.App.1917), the court did indeed interpret the amendment as removing any discretion on the trial judge’s part and making it mandatory that the juvenile must be tried as a delinquent if the question of age was raised and established. The court in McLaren discussed the possibility that a juvenile might waive his rights:

“. . .A boy under 17 years of age charged with a felony may, if he so elect, rely upon his plea of not guilty and stand his trial on the charge of felony, taking the chances of conviction or acquittal; or he may, if he so elect, file his plea setting up the fact that he is under 17 years of age, which, when established by proof, will require the court to dismiss the felony charge. . . . ” McLaren v. State, supra, 199 S.W. at p. 813 (Opinion on Motion for Rehearing).

In Slade v. State, 85 Tex.Cr.R. 358, 212 S.W. 661 (Tex.Cr.App.1919), a female defendant, under eighteen years of age, entered a guilty plea to theft and was convicted. For the first time on motion for new trial she raised the question of her age and right to be tried as a juvenile. The statute involved was in Title 17, ch. 26 of the Code of Criminal Procedure (1916). Except for the age being eighteen rather than seventeen for boys, the statute was in all particulars identical to that for males which was interpreted in McLaren v. State, supra. The court in Slade held that the same result must obtain; that is, that the right to be tried as a juvenile could be waived and could not be raised after the trial had commenced.

In Fifer v. State, 90 Tex.Cr.R. 282, 234 S.W. 409 (1921), no sworn statement of the defendant’s age was filed before the announcement of ready, even though the defendant was represented by counsel and accompanied by his mother. The court held that the defendant had waived his right to be tried as a juvenile. No authorities were cited, but the court noted the point was “well settled."

The next consideration of this issue was in Valdez v. State, 98 Tex.Cr.R. 166, 265 S.W. 161 (1924), where once again there was no sworn statement as to age filed prior to trial. Relying on Slade and Flfer, the court once again held the right to be tried as a juvenile was waivable. The court also held that in absence of fraud against the defendant the question of age could not be raised for the first time by a motion for new trial. The court also noted the question is one of preliminary character to be presented to and passed upon by the trial judge, not the jury, citing Robertson v. State, 92 Tex.Cr.R. 350, 243 S.W. 1098 (1922).

In 1925 a revision of the Code of Criminal Procedure occurred. The new provision governing the issue of juvenile defendants was Article 1084, Vernon’s Ann.C.C.P., 1925, which stated:

“If an indictment does not allege the age of the accused to be within the juvenile limits, then at any time before announcement of ready, the accused, or the parent, guardian, attorney or next friend of the accused may make and file an affidavit in court setting up that such accused is a male then under seventeen years of age, or is a female then under eighteen years of age. When such affidavit is filed, the judge shall hear evidence on the question of the age of the accused, and if he is satisfied therefrom that the accused, if a male is then under the age of seventeen years, or if a female is then under the age of eighteen years, the judge shall transfer the case to the juvenile docket, and proceed to try the child under the same indictment as a delinquent child."

Rice v. State, 137 Tex.Cr.R. 21, 127 S.W.2d 889 (1939), cited Article 1084, supra, and held that if age is not alleged in the indictment then the question must be raised by affidavit prior to the announcement of ready. The court held that the defendant could not wait until the time for revocation of his suspended sentence to raise the question of age. Valdez and Robertson were cited with approval.

The statutes governing the trial of juveniles were removed from the Code of Criminal Procedure in 1943 and placed in the civil statutes. Article 2338-1, Vernon’s Ann. C.S., became the delinquent children statute, and § 12 of that statute was the descendant of the provisions which have been considered heretofore:

“If during the pendency of a criminal charge or indictment against any person in any other court than a Juvenile Court, it shall be ascertained that said person is a female over the age of ten (10) years and under the age of eighteen (18) years, or is a male person over the age of ten (10) years and under the age of seventeen (17) years at the time of the trial for the alleged offense, it shall be the duty of such court to transfer such case immediately together with all papers, documents and testimony connected therewith to the Juvenile Court of said county . . . .” (Emphasis added.)

Ex parte Huddleston, 149 Tex.Cr.R. 388, 194 S.W.2d 401 (Tex.Cr.App.1946), focused on the language from this statute that “if it shall be ascertained” that a male defendant is between the ages of ten and seventeen then the case is to be transferred to juvenile court. At trial Huddleston testified he was seventeen years old. His confession was to the same effect. No appeal was taken. He later sought habeas corpus relief because he was actually fifteen years old when convicted. The court held that the defendant could not raise the age question by habeas corpus proceedings.

Ex parte Munoz, 152 Tex.Cr.R. 413, 209 S.W.2d 767 (1948), cited Ex parte Huddle-ston, supra, with approval. Here, Munoz and his father told counsel he was seventeen years old. After trial counsel learned of a birth certificate showing Munoz was sixteen years old, but he did not have possession of the certificate until after term time. The court held that the plea of guilty could not be attacked in habeas corpus proceedings on the ground that petitioner was a juvenile at the time of the conviction.

No authorities were cited m Jones v. State, 157 Tex.Cr.R. 382, 248 S.W.2d 928 (1952), but the holding is certainly in line with the precedents already discussed:

“. . .If appellant was not of sufficient age to authorize his conviction of a felony, he should have so shown.”

In Taylor v. State, 172 Tex.Cr.R. 45, 353 S.W.2d 422 (1962), it was held the trial court was not bound to set aside a conviction upon a showing, after revocation of probation, that the defendant was of juvenile age and not seventeen years old as he had represented at trial. Taylor cited Huddleston, Munoz, Valdez, Fifer and Rice with approval, but no mention of the statute was made.

In Ex parte Nolden, 172 Tex.Cr.R. 553, 360 S.W.2d 151 (1962), it was held that a rape conviction could not be successfully attacked by habeas corpus proceedings that petitioner was under seventeen years of age at his trial in 1938 where that issue was not raised at trial. Ex parte White, 50 Tex. Cr.R. 473, 98 S.W. 850 (Tex.Cr.App.1906); Fifer v. State, supra; and Ex parte Munoz, supra, were cited with approval, but the statute was not mentioned.

Bradley v. State, 365 S.W.2d 789 (Tex.Cr.App.1963), cited only Jones v. State, supra, for its holding, “If appellant was not of sufficient age to authorize his conviction for a felony, he should have so shown on the main trial.”

In Slaton v. State, 418 S.W.2d 508 (Tex.Cr.App.1967), a prior conviction which occurred when the defendant was a juvenile but had not raised the issue was revealed to the jury during the punishment phase of a subsequent trial. Referring to Taylor v. State, supra, and “cases cited therein,” the court held that the prior conviction was not void and could therefore be shown. In a similar manner in McKinney v. State, 505 S.W .2d 536 (Tex.Cr.App.1974), the showing of a conviction received in Kansas when the defendant had been a juvenile was allowed since the court assumed in lieu of evidence to the contrary produced at trial that Kansas law was the same as Texas and that a

felony conviction received while a juvenile was not void. Taylor v. State, supra, and Slaton v. State, supra, were the only authorities cited.

The final change in Article 2338-1, Vernon’s Ann.C.C.P., occurred in 1967 before the enactment of the new Family Code. The 1967 amendment to § 12 of Article 2338-1 provided in part:

“If, while a criminal charge or indictment is pending against any person in a court other than a juvenile court, it is ascertained that the person is a child at the time of the trial for the alleged offense, it is the duty of the court in which the case is pending to transfer the child immediately together with all papers, documents, and records of testimony connected with the case to the juvenile court of the county unless the child is being held under the authority of Section 6 of this Act. , . .”

The amendment took note of the fact there was no longer any difference in the ages of females and males with regard to being a child or a juvenile. § 6 of the statute referred to provides the procedure for the juvenile court to transfer and waive jurisdiction of the child sometimes referred as discretionary transfer.

In the six years from the amendment of Article 2338-1, § 12, supra, and the passage of V.T.C.A., Family Code, § 51.08, which superseded it, no cases apparently interpreted this provision with respect to the waiver of a right to be tried as a juvenile.

Consistently through these prior opinions the court has held that the rights of a juvenile defendant to be tried as a juvenile may be waived. The determination of whether a defendant should be tried as a juvenile has been termed a question “of preliminary character” which, if not raised during or before trial, was lost. In each of the progression of statutes and amendments, the defendant or some other person was required to raise the issue before the announcement of ready for trial, or later in Article 2338-1, supra, the determinant of waiver was whether “during the pendency of a criminal charge or indictment” it was “ascertained” that a person should be not tried as an adult. Though in several of this court’s opinions the statutes were not specifically referred to, certainly behind the precedents which were cited lay these statutory provisions requiring a defendant to raise the issue or from some other source for the trial court to ascertain that the defendant was a juvenile.

Interpretation of Present Statute

The present statute, effective September 1, 1973, reads as follows:

“Sec. 51.08. Transfer from Criminal Court
“If the defendant in a criminal proceeding is a child who is charged with an offense other than perjury or a traffic offense, unless he has been transferred to criminal court under Section 54.02 of this code [dealing with waiver of jurisdiction by the juvenile court and transfer to a district court], the court exercising criminal jurisdiction shall transfer the case to the juvenile court, together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case, and shall order that the child be taken to the place of detention designated by the juvenile court, or shall release him to the custody of his parent, guardian, or custodian, to be brought before the juvenile court at a time designated by that court.”

This statute was in effect when the appellant herein entered her guilty plea to the burglary of a habitation in 1974. The statute is silent as to the procedure for raising the question of age “in a criminal proceeding” and no longer mentions the “if . it be ascertained” provision of the former statute.

V.T.C.A., Family Code, § 51.09, also in effect at the time of appellant’s guilty plea, sets forth the requirements for a waiver if a child or juvenile wishes to waive rights enumerated in the Family Code. It provided:

“Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:
“(1) the waiver is made by the child and the attorney for the child;
“(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
“(3) the waiver is voluntary; and
“(4) the waiver is made in writing or in court proceedings that are recorded.”

The appellant by not informing her attorney or the court of her actual age at the time of her guilty plea would have “waived” her right to be tried as a juvenile under past decisional laws. However, this “waiver” was not in accordance with V.T. C.A., Family Code, § 51.09, supra.

At the time of the guilty plea, appellant was within the definition of a “child” as defined by V.T.C.A., Family Code, § 51.02, which provides in part:

“In this title:
“(1) a ‘Child’ means a person who is:
“(A) ten years of age or older and under 17 years of age; or
“(B) seventeen years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.”

Moreover the juvenile court is given exclusive original jurisdiction over proceedings under Title 3 of the Family Code. See V.T.C.A., Family Code, § 51.04. And V.T. C.A., Family Code, § 54.02, provides for the procedure for waiver of juvenile court jurisdiction and discretionary transfer to criminal court.

Most important to the decision before this court are the provisions of V.T.C.A., Penal Code, § 8.07 (Age Affecting Criminal Responsibility) in effect at the time of appellant’s guilty plea. It provided:

“(a) Except as provided by Subsection (c) of this section, a person may not be prosecuted or convicted for any offense that he committed when younger than 15 years.
“(b) Except as provided by Subsection (c) of this section, a person who is younger than 17 years may not be prosecuted or convicted for any offense, unless the juvenile court waives jurisdiction and certifies him for criminal prosecution.
“(c) Subsections (a) and (b) of this section shall not apply to prosecutions for:
“(1) aggravated perjury, when it appears by proof that the actor had sufficient discretion to understand the nature and obligation of an oath;
“(2) a violation of a penal statute cognizable under Chapter 302, Acts of the 55th Legislature, Regular Session, 1957, as amended; or
“(3) a violation of a motor vehicle traffic ordinance of an incorporated city or town.
“(d) No person who has been adjudged a delinquent child may be convicted of any offense alleged in the petition to adjudge him a delinquent child or any offense within the knowledge of the juvenile proceeding.
“(e) No person may, in any case, be punished by death for an offense committed while he was younger than 17 years.”

It is clear when the foregoing provisions of the Family Code are read with said § 8.07 of the Penal Code that the district court did not have jurisdiction to try appellant for burglary of a habitation in view of her age despite her deliberate action in misleading the court. Such action under the foregoing statutes did not constitute waiver. The fact that appellant’s age was not discovered until the time of revocation of probation proceedings does not change the situation. The district court simply did not acquire jurisdiction over the appellant, and we need not, in my opinion, determine whether the revocation proceedings are criminal proceedings for the purpose of determining the question before us.

The trial court should have transferred the case to the juvenile court upon learning appellant’s true age.

Since it now appears that the appellant became eighteen years of age on February 2, 1977, even the juvenile courts cannot exercise jurisdiction over her. Y.T.C.A., Family Code, § 54.05(b).

Whether the drafters of the Family Code and Penal Code intended to allow “a child” to benefit from a fraud upon the court the statutes had such effect in the case at bar.

The judgment is reversed and the cause remanded.

      . Said § 51.09 was amended (Acts 1975, 64th Leg., p. 2154, ch. 693, § 9, effective Sept. 1, 1975). Said amendment is not applicable to the case at bar.

      . Said § 51.02 has been amended (Acts 1975, 64th Leg., p. 2152, ch. 693, § 1, effective Sept. 1, 1975). Said amendment does not affect the definition of a “child" above.

      .Said § 8.07 was amended (Acts 1975, 64th Leg., p. 2158, ch. 693, § 24, effective Sept. 1, 1975).

      . It would appear that even if appellant had waived her rights in accordance with V.T.C.A., Family Code, § 51.09, some question would remain about the district court’s right to try her in light of V.T.C.A., Penal Code, § 8.07(b), requiring waiver of jurisdiction by the juvenile court and certification for criminal prosecution. We need not reach this question in this case.


author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    Andres BOCANEGRA, Appellant, v. The STATE of Texas, Appellee.
    No. 52896.
    Court of Criminal Appeals of Texas.
    June 8, 1977.
    See also Tex.Cr.App., 552 S.W.2d 186.

      Brinkley L. Oxford, Edinburg, for appellant.
    Oscar R. Mclnnis, Dist. Atty. and Joseph A. Connors, III, Asst. Dist. Atty., Edinburg, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was convicted by a jury of welfare fraud in violation of Article 695c, Section 34, Vernon’s Ann.Civ.St. The court assessed punishment at six months in jail and a fine of twenty-five dollars, and probated the sentence.

Article 695c, Section 34 provides:

“Fraudulent assistance; penalty
“Sec. 34. Whoever obtains, or attempts to obtain, or aids or abets any person to obtain, by means of a wilfully false statement or representation or by impersonation, or by other fraudulent means:
“(1) Assistance, services, or treatment to which he is not entitled;
“(2) Assistance, services, or treatment greater than that to which he is justly entitled;
“(3) Or, with intent to defraud, aids or abets in buying, or in any way disposing of the property of a recipient of assistance without the consent of the State Department, or whoever violates Section 32 or Section 33 of this Act, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined any sum not more than One Hundred Dollars ($100) or be imprisoned for not less than six (6) months, nor more than two (2) years, or be both so fined and imprisoned.”

Omitting the formal parts, the information alleges that:

“on or about the 30th day of April, A.D. 1974, ANDRES BOCANEGRA did then and there unlawfully obtain assistance and services in an amount greater than to which he was justly entitled, fraudulently, to wit, an over-issuance of bonus coupons in the amount of $708.00 from the Texas Department of Public Welfare by failing to declare earned income of $2,832.56 from his employment at War-shaw Printing Co. in McAllen, to Raymond D. Flores, a representative of the Texas Department of Public Welfare, that because of his misrepresentation of being unemployed he was able to purchase Food Stamps at a lower purchase price than he was entitled such being $2,464.00 of Food Stamps for $729.00 giving him $1,735 worth of bonus coupons, when in fact, had he reported his earned income, he would have been allowed to purchase the same amount of Food Stamps but at a higher price being $1,437.00 which would have resulted in his having received $1,027.00 in bonus coupons instead during the period of August 1, 1973 through April 30, 1974.”

We hold that the information is fundamentally defective for failing to allege a culpable mental state. Accordingly, the judgment must be reversed and the prosecution under this information ordered dismissed.

Sections 6.02 and 6.03 of the new Penal Code establish the requirements and definitions of culpability for the Code, and Section 1.03(b) makes it clear that these provisions, as well as the other provisions of Titles 1, 2, and 3 of the Code, apply to offenses defined by the civil statutes “unless the statute defining the offense provides otherwise.” Since nothing in Article 695c, Section 34 “provides otherwise,” it is clear that Sections 6.02 and 6.03 apply to this statute.

Section 6.02 of the Penal Code provides in part:

“Sec. 6.02. Requirement of Culpability
“(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.”

Section 34 of Article 695c does not clearly dispense with a mental element since willful conduct and fraudulent conduct are part of the offense, and, under subsection (3), an intent to defraud is also a part of the offense. It follows that an intent to defraud is a necessary prescribed culpable mental state when welfare fraud is alleged pursuant to subsection (3). However, it also seems clear that subsections (1) and (2) of Section 34 do not prescribe culpable mental states; therefore, either intent, knowledge, or recklessness is necessary to establish criminal responsibility.

In reaching this latter conclusion, we find that the words “wilfully” and “fraudulent” in Section 34 do enable us to determine that the statute does not “plainly

dispenses with any mental element.” V.T. C.A., Penal Code, Sec. 6.02(b). However, because it is impossible to determine which of the four culpable mental states is embraced by the terms “wilfully” and “fraudulent,” we hold that these words are not sufficient to prescribe any specific culpable mental state. See the Practice Commentary to V.T.C.A., Penal Code, Sec. 6.03, and authorities there cited. Therefore, we conclude that either intent, knowledge, or recklessness is a necessary part of the offense of welfare fraud under subsections (1) and (2). See V.T.C.A., Penal Code, Secs. 6.02(a) and 6.02(b); Davila v. State, 547 S.W.2d 606, 608, n. 2 (Tex.Cr.App.1977), and authorities there cited.

To hold othérwise would be to lose much of the beneficial effect of creating four “carefully defined” culpable mental states. See the Practice Commentary to Section 6.03, supra. Moreover, such a holding would be in direct conflict with the explicit language of Section 1.03(b), supra, which extends the provisions of Sections 6.02 and 6.03 to offenses outside the Penal Code.

Turning to the case before us, it is clear that this prosecution was under subsection (2) of Section 34; thus, the State was required to prove that the appellant acted intentionally, knowingly, or recklessly: This is an element of the offense. Ex Parte Winton, 549 S.W.2d 751 (Tex.Cr.App., No. 54,508, delivered April 27, 1977); Ailey v. State, 547 S.W.2d 610 (Tex.Cr.App.1977), and authorities there cited. Thus, as we held in Ex Parte Winton, supra, at 752:

“Where a culpable mental state is an element of the offense, failure to allege this element renders the indictment fundamentally defective.”

We hold that the State was required to allege intent, knowledge, or recklessness in the information and the failure to do so was fundamental error, since “Everything should be stated in an indictment which is necessary to be proved.” Art. 21.03, Vernon’s Ann.C.C.P.; Ex Parte Cannon, 546 S.W.2d 266, 273 (Tex.Cr.App.1976) (opinion on State’s Motion for Rehearing); Ex Parte Winton, supra; Alley v. State, supra; Davila v. State, supra.

The judgment is reversed and the prosecution under this information ordered dismissed.

DOUGLAS, Judge,

dissenting.

The majority reverses the conviction for welfare fraud in violation of Article 695c, Section 34, V.A.C.S., holding that the information is fundamentally defective for failure to allege a culpable mental state as required by Section 6.02 of the new Penal Code. A careful reading of the information in question and Article 695c, Section 34, supra, shows otherwise.

The information, held defective (without an exception or motion to quash) by the majority, in appropriate part, reads:

“. . . on or about the 30th day of April, A.D., 1974, ANDRES BOCANE-GRA did then and there unlawfully obtain assistance and services in an amount greater than to which he was justly entitled, fraudulently, to wit, an over-issuance of bonus coupons in the amount of $708.00 from the Texas Department of Public Welfare by failing to declare earned income of $2,832.56 from his employment at Warshaw Printing Co. in McAllen, to Raymond D. Flores, a representative of the Texas Department of Public Welfare, that because of his misrepresentation of being unemployed he was able to purchase Food Stamps at a lower purchase price than he was entitled such being $2,464.00 of Food Stamps for $729.00 giving him $1,735 worth of bonus coupons, when in fact, had he reported his earned income, he would have been allowed to purchase the same amount of Food Stamps but at a higher price being $1,427.00 which would have resulted in his having received $1,027.00 in bonus coupons instead during the period of August 1, 1973 through April 30, 1974.” (Emphasis Supplied)

Article 695c, Section 34, supra, provides:

“Fraudulent assistance; penalty
“Sec. 34. Whoever obtains, or attempts to obtain, or aids or abets any person to obtain, by means of a wilfully false statement or representation or by impersonation, or by other fraudulent means:
“(1) Assistance, services, or treatment to which he is not entitled;
“(2) Assistance, services, or treatment greater than that to which he is justly entitled;
“(3) Or, with intent to defraud, aids or abets in buying, or in any way disposing of the property of a recipient of assistance without the consent of the State Department, or whoever violates Section 32 or Section 33 of this Act, shall be deemed guilty of a misdemean- or, and upon conviction thereof, shall be fined any sum not more than One Hundred Dollars ($100) or be imprisoned for not less than six (6) months, nor more than two (2) years, or be both so fined and imprisoned.”

The Penal Code provisions dealing with culpability in general are made applicable to other statutes, such as the civil statute in the instant case, by the authority of V.T. C.A., Penal Code, Sec. 1.03(b). Section 6.02 of the Penal Code states that a culpable mental state is required for the commission of an offense unless the statute defining the offense clearly dispenses with any mental element. If the statute defining the offense does not clearly dispense with the requirement of a mental element and does not prescribe a specific mental element, then intent, knowledge or recklessness will suffice to establish criminal responsibility.

The statute defining welfare fraud, as quoted above, does not clearly dispense with the requirement of a mental element, nor does it fail to prescribe a culpable mental state. The first paragraph of Section 34 prohibits the acquisition of welfare assistance by means of (a) a wilfully false statement or (b) by impersonation, or (c) by any other fraudulent means. Subsection (3) of Section 34 condemns a person who, with intent to defraud, aids or abets in buying or in any way disposing of the property of a recipient of assistance. Each of the enumerated means for violation of the statute has an accompanying mental element.

The information charges that appellant obtained more food stamp bonus coupons than he was allowed by “fraudulently . failing to declare earned income. . . . ” The allegation clearly charges appellant with the acquisition of welfare assistance “by other fraudulent means.” The mental element of “intentional” is present.

“Fraud” is defined in Webster’s New International Dictionary, 1917, as

“an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him, or to surrender a legal right; a false representation of a matter of fact (whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed) which deceives and is intended to deceive another so that he shall act upon it to his legal injury.” (Emphasis Supplied)

“Fraudulent” means to use fraud. Fraud “consists of some deceitful practiceor wilful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional.” (Emphasis Supplied) Black’s Law Dictionary 788 (Revised 4th Ed. 1968).

The fact that it is alleged that appellant “fraudulently” rather than “intentionally” or “knowingly” is of no consequence. As has been shown, “fraudulently” means to do an act or omission “intentionally.” Section 2.01 of the Code Construction Act provides:

“Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise shall be construed accordingly.”

Section 2.01 of the Code Construction Act is applicable to the new Penal Code pursuant to V.T.C.A., Penal Code, Section 1.05, wherein it states:

“(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code. (Emphasis Supplied)
“(b) Unless a different construction is required by the context, Sections 2.01, 2.02, 2.04, 2.05, and 3.01 through 3.12 of the Code Construction Act (Article 5429b-2, Vernon’s Texas Civil Statutes) apply to the construction of this code.”

The law has not been changed in regard to using words with same or similar meaning as those found in the statute. In 1973 when the 63rd Legislature enacted the new Penal Code it conformed certain articles of the Code of Criminal Procedure so that it was in harmony with the new Penal Code. Article 21.17, V.A.C.C.P., provides:

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

In White v. State, 83 Tex.Cr.R. 31, 201 S.W. 186 (1918), it was held that an indictment under the 1911 Penal Code, Article 1351, for theft from the person, must allege that the property was taken from the person of another, and it is not sufficient to allege that it was taken “from the possession of the person” of another. This Court in White said:

“It is a familiar rule of construction, where the statute uses words, those same words must be used in an indictment, and, if not, then words of similar or more potent force than those used in the statute must be employed in order to charge the offense.” (Emphasis Supplied)

“Fraudulently” by definition certainly encompasses the same and more than “intentionally” or “knowingly” as defined in V.T.C.A., Penal Code, Section 6.03. As this Court again reiterated in McClane v. State, 170 Tex.Cr.R. 603, 343 S.W.2d 447 (1961), cert. denied 365 U.S. 816, 81 S.Ct. 698, 5 L.Ed.2d 695:

“It is the rule that where a word not in the statute is substituted in the indictment for one that is, the indictment is sufficient if the word substituted is equivalent to the word used in the statute. 1 Branch’s Ann.P.C.2d Ed, para. 515, page 496.” Lewis v. State, 527 S.W.2d 533 (Tex.Cr.App.1975)

Further, even if it could be said that “intentionally” or “knowingly” were words with a technical or particularized meaning within the ambit of Section 2.01 of the Code Construction Act, it would again be of no consequence. The word “fraudulently” embraces intent and knowledge as well as purposeful misrepresentation and wilful deceit. It is an encompassing general term which embraces the specific term and is authorized for use in an indictment by Article 21.12, V.A.C.C.P., which provides:

“When a statute defining an offense uses special or particular terms, indictment on it may use the general term, which, in common language, embraces the special term. . . .”

See also, Lewis v. State, supra.

Ex parte Cowden, 74 Tex.Cr.R. 449, 168 S.W. 539 (1914), held that the word “wilful” may be substituted for the statutory word “knowingly” since the word “knowingly” as used in the statute prohibiting a person from allowing livestock to run at large meant that the act must have been done within the knowledge of the person charged with the intent to commit the act and the word “wilful” carried that meaning and more. This Court in Cowden went on to note that in Garza v. State, 47 S.W. 983 (Tex.Cr.App.1898), it was held that the word “wilful” as used in the statute (perjury) was synonymous with “knowingly,” citing excerpts from Words and Phrases, Volume 8, page 7474, among which was Woodhouse v. Rio Grande Railway Company, 67 Tex. 416, 3 S.W. 323 (1887), wherein it was said that “wilfully”, as used in connection with an act forbidden by law, means that the act must be done knowingly or intentionally, and that the act was committed with knowledge, and that the will consented to, designed and directed the act.

The meaning of the word “intent” arose also in Gallegos v. State, 152 Tex.Cr.R. 508, 215 S.W.2d 344 (1948), wherein the defendant was charged with assault with intent to murder. Complaint was made of the trial court’s refusal to define the word “intent” in its charge. In overruling Gallegos’ allegation of error this Court held that “intent” is a word of such common and generally accepted meaning that no necessity should exist for a further definition thereof. Likewise, it should be evident to all that to fraudulently perform or fail to perform an act is intentional and wilful.

The information should charge an offense in plain and intelligible words with such certainty as to enable the accused to know what he will be called upon to defend against and to enable him to plead the judgment that may be given on it in bar of any further prosecution for the same offense. Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976). An indictment or information which charges the elements of an offense in substantially the same terms as the statute is sufficient. We should hold that the information in the instant case sufficiently informed the appellant that he was charged with unlawful acquisition of welfare assistance by fraudulent means. See Teniente v. State, 533 S.W.2d 803 (Tex.Cr.App.1976).

The judgment should be affirmed.

      . Clearly, under this Court’s holding in Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976), such an intent alleges a culpable mental state under Section 6.03(a).

      . We are aware of the rule that ordinarily a charging instrument is sufficient if it alleges the offense in the language of the statute. Baldwin v. State, 538 S.W.2d 109, 111 (Tex.Cr.App.1976). However, this is an instance where legislative intent, as expressed in Sections 1.03(b) and 6.02 of the Penal Code, requires greater particularity. See Johnson v. State, 547 S.W.2d 599, 601 (Tex.Cr.App.1977), and authorities there cited.

      . This rule applies with equal force to informa-tions. Art. 21.23, V.A.C.C.P., provides: “The rules with respect to allegations in an indictment and the certainty required apply also to an information.”