author: W. C. DAVIS, Judge. CLINTON, Judge, DALLY, Judge,

text:
    Clarence Earl DOTY, Appellant, v. The STATE of Texas, Appellee.
    No. 56429.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 27, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Kerry P. Fitzgerald, Dallas, for appellant; Jim Vollers, Austin, of counsel.
    Henry M. Wade, Dist. Atty., John H. Hagler, Gerald Banks and James K. Johnson, Asst. Dist. Attys., Dallas, Robert Hut-tash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

W. C. DAVIS, Judge.

Following a conviction for attempted capital murder where a jury assessed punishment at twenty-eight years confinement, appellant brings forward nineteen grounds of error.

In his initial ground of error, appellant challenges the sufficiency of the indictment to allege the offense of attempted capital murder. Appellant argues the indictment is fundamentally defective because it alleges only criminal solicitation, omitting the act of attempt: an act amounting to more than mere preparation, but failing to effect the commission of the intended offense. V.T.C.A. Penal Code, Sec. 15.01.

The indictment reads as follows:

“. . . did unlawfully, attempt to cause the death of Linda Faye Doty, in that the said defendant was employing for remuneration and promise of remuneration Bobby L. Curtis by knowingly and intentionally offering one thousand five hundred dollars ($1,500.00) current money of the United States of America to Bobby L. Curtis paid and promised to be paid to kill Linda Faye Doty by shooting her with a sawed-off shotgun . .” (Emphasis added)

Clearly, this is a “murder for hire” indictment; an indictment for attempted capital murder under the “employment” provision of V.T.C.A. Penal Code, Sec. 19.03(a)(3). Murder for remuneration under Sec. 19.-03(a)(3) involves, at a minimum, three individuals: (1) principal, (2) agent, and (3) victim. The interaction of these individuals is very simple. The principal hires the agent to kill the victim. In such a relationship, the only act required of the principal is the hiring of the agent. Once the employment “contract” is made and consideration passes, there is more than mere preparation. In fact, once such a contract of employment exists, the principal has completed his role and may be guilty of capital murder or attempted capital murder, depending on the success of his agent.

Therefore, if the language of the indictment indicates or alleges the existence of this “employment contract,” it sufficiently alleges an act by the principal — appellant going beyond mere preparation. Such an allegation must, however, be more than a promise to pay in the future. In Hobbs v. State, 548 S.W.2d 884 (Tex.Cr.App.1977), we held the following language insufficient:

“That Joyce Hobbs on or about the 25th day of July, A.D. 1975, ... did then and there attempt knowingly to cause the death of James Leon Hobbs, by promising remuneration to wit: promising to pay Virgil McCuller $100.00 to kill the said James Leon Hobbs by shooting him with a gun.”

While a future promise to pay in exchange for the murder of an individual is within V.T.C.A. Penal Code, Sec. 19.03(a)(3), the Hobbs indictment does not allege any acts by the employer, other than preparation to pay in the future. Such an allegation is not a criminal attempt. V.T.C.A. Penal Code, Sec. 15.01.

In appellant’s case, the indictment language alleged that appellant “ ‘was employing for remuneration’ Bobby L. Curtis,” which indicates a present and existing employment agreement beyond a future promise to pay. This language indicates that appellant had acted in some manner to create a contract to have the victim killed. Reading further, the indictment alleges the consideration for this contract in both the past and future tenses: “. . . paid and promised to be paid . . Thus, the indictment alleges a contract of employment whereby the victim was to be killed and alleges payment by appellant as an act beyond mere preparation. Therefore, while not a model indictment, these allegations satisfy V.T.C.A. Penal Code, Sec. 15.01 and Sec. 19.03(a)(3) and sufficiently allege attempted capital murder.

Having determined the indictment sufficient, we turn to the dispositive issue which is contained in appellant’s ground of error number four. The issue therein presented is the sufficiency of the evidence to support the conviction for attempted capital murder. Appellant urges that there is a variance between the evidence adduced and the allegations in the indictment. We agree.

The indictment alleges as the act beyond preparation, payment of money from appellant to an undercover officer. The State then was obliged to prove payment. However, the testimony of the undercover police officer shows no payment was made. At one point, the officer testified as follows:

“Q. And you testified earlier that he had a wad of money on him?
A. Yes, sir, that’s correct.
Q. Money far in excess of a thousand dollars, didn’t he?
A. Yes, sir.
Q. And he didn’t give you one cent?
A. No, sir, he did not.
Q. He didn’t give you a sawed off shotgun did he?
A. No, sir, he did not.”

At another point, the testimony was:

“Q. ... he didn’t do anything about giving you any money out front?
A. No, sir, he didn’t give me any.
Q. Not a cent, did he?
A. No, sir.”

The State argues that appellant provided a photograph of the victim and certain addresses, and these are acts beyond preparation. The remuneration aspect of murder for hire is an essential element and must be proved. Here, the State alleged payment as the act of criminal attempt and thus imposed upon itself the burden to establish payment. Having failed to do so, the evidence adduced is insufficient to support the allegations in the indictment. Commons v. State, 575 S.W.2d 518 (Tex.Cr.App.1979); Armstrong v. State, 573 S.W.2d 813 (Tex. Cr.App.1978).

The judgment is reversed and prosecution ordered dismissed. Burks v. U. S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

CLINTON, Judge,

concurring.

The general rule is that an indictment which uses the same or similar language of the statutory definition of the offense is basically sound, Art. 21.17, V.A.C.C.P., but the sources cited in note 1 reflect different readings of pertinent articles and do not present a common pattern. Faced with that lack of consistency the scrivener of the indictment before us apparently opted for Texas Annotated Penal Statutes, Branch’s 3d Ed. Thus, in Vol. 1 at page 634 the suggestion for attempted murder is:

“- did then and there attempt to cause the death of _ by _ (shooting him with a gun,) having at the time the specific intent to commit the offense of murder.”

and in Vol. 2 at page 17, the form presented for capital murder by hiring is:

“-did then and there_ . cause the death of_employing for remuneration and promise of remuneration, to-wit: (the sum of $500 paid and promised to be paid), _ (name of killer) _ to kill said _ (deceased)_by_(method used, e. g., shooting him with a gun)-”

Tracing the instant indictment to its sources enables us to discern that its drafter was aware of the need to allege an act that amounts to more than mere preparation that tends but fails to effect commission of the offense of hiring a murderer and, further, precisely the act thought to meet that requirement, to-wit:

“by knowingly and intentionally offering one thousand five hundred dollars ($1,500.00) current money of the United States of America to Bobby L. Curtis.

Whether the handiwork of the draftsman is defective is the issue so dividing the Court that three opinions are produced.

As I understand the respective positions of my Brothers, they differ over the nature and quality and, certainly, the order of the act that is more than preparation. Neither addresses the allegation I regard as that intended by the maker of the indictment to be the act beyond mere preparation.

That the indictment sufficiently alleges a specific intent on the part of appellant to cause the death of his intended victim by using the word “attempt” is supported by what was then a tenuous majority view of the Court. Moreover, all essential elements of the object capital murder offense are there. The question, then, is reduced to whether an attempt to commit capital murder by hiring may occur before an agreement to kill is struck or is in reaching the agreement or must await the agreement and then be a “tending” act of the hired killer. The pleader in this case obviously advanced the theory that attempt lay in the accused’s offering $1,500 in current money to the putative killer, without particularizing at what point the money was offered or, indeed, the manner in which the offer of money was made.

This particular object offense is unique in that it contemplates that consummation of the transaction by death of the intended victim is done by someone paid by the accused to do it. An accused who desires the death of another but, declining to do the deed personally, hires a third party to kill need not take any action beyond engaging the services of the killer. If the killer executes the contract both parties to it may be guilty of capital murder. But if the killer fails to execute the contract, does the culpability of the procuring accused depend on the reason for the failure? I think not. The accused, in parlance of the initiated, has “let a contract,” and penal liability for execution of that contract by another attaches to the accused because the killing is the natural consequence of what the accused generated and put in operation. That is why, it seems to me, in this particular situation the most critical element of an attempt is the intent to cause death by hiring, and the nature and quality of the “tending” act are only relatively significant.

It must be remembered that criminal attempt is an inchoate offense. As the practice commentary following V.T.C.A. Penal Code, § 15.01 observes, since inchoate offenses “presuppose an intent to commit another offense and the actor, by hypothesis, ignores the sanction for the object offense, they provide no significant deterrence . (but they do) . . . perform other legitimate penological functions in permitting punishment of those who demonstrate a disposition toward criminality before they do any real harm . . . ” Further we are assured, and have independently confirmed, that § 15.01 defines the offense of criminal attempt “in traditional terms.” See generally United States v. Mandujano, 499 F.2d 370, 372-379 (5 Cir. 1974) in which Rives, C. J. collects a host of authorities and distills their holdings down to two basic ingredients of criminal attempt; 22 C.J.S. p. 226, Criminal Law § 74, Attempts; and, for early statements of the terms in Texas, Wood v. State, 27 Tex.App. 393, 11 S.W. 449 (Ct.App.1889) and Watts v. State, 30 Tex.App. 533, 17 S.W. 1092 (1891).

Because the essential evil in this category of capital murder is remuneration, either paid or promised, an accused may be guilty of criminal solicitation if, with intent that someone be killed by another for remuneration, that accused requests, commands or attempts to induce the other person to kill with a promise to pay for the deed; the offense is complete without any agreement by the other person to kill. For the same reason, an accused may be guilty of criminal conspiracy if, on the same basis, an agreement is reached and the other party— or, in another context, the accused — performs just one otherwise innocent overt act in pursuance of the agreement. Neither offense demands that the second party engage in a single act of criminal misconduct in order that the initiating solicitor or conspirator be charged with committing the inchoate offense and, if found guilty, be punished as a first degree felon. How is it, then, that the offense of attempted capital murder by hiring requires an agreement to kill followed by criminal misconduct that fails its objective before the originator of the scheme may be charged with that inchoate offense and, if found guilty, be punished as first degree felon? The fundamental vice in each offense is precisely the same: the specific intent in the mind of the accused that another be killed by a hired gun. Only the manner by which that intent manifests itself is somewhat different: an attempt, a solicitation or a conspiracy. Money is, to paraphrase, the root of each manifestation of evil — just the mechanics of moving it about vary. In this light actually offering hard cash for the undertaking seems more definitive than an unsecured promise to pay it in the future.

Accordingly, I would hold that the indictment in this case, though awkwardly worded, by its “offering” clause does allege an act amounting to more than mere preparation that tends to effect commission of hiring to murder. When, in relation to other events, and the manner in which the offer was made are, in my view, evidentiary matters that need not be specified in an indictment.

For these reasons I conclude that the indictment is not defective and concur in overruling grounds of error contending otherwise.

DALLY, Judge,

dissenting.

I cannot agree that the indictment is sufficient; since the indictment fails to allege an act which was done to effect the intended offense of murder, it does not allege the offense of attempted capital murder.

The 1974 Penal Code defines and provides a penalty for the separate crime of criminal attempt as follows:

“V.T.C.A. Penal Code, Sec. 15.01, Criminal Attempt
“(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
“(b) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.
“(c) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a felony of the third degree, the offense is a Class A misdemeanor.”

The offense of attempted capital murder requires that an act be committed, which amounts to more than mere preparation, to effect the intended offense of murder. Therefore, to allege the offense of attempted capital murder it is necessary to allege that a defendant having a specific intent to commit the offense of capital murder did some act, which amounts to more than mere preparation, to effect the commission of the intended offense of murder.

The indictment in the instant case alleges that the appellant:

“. . . did unlawfully, attempt to cause the death of Linda Faye Doty, in that the said defendant was employing for remuneration and promise of remuneration Bobby L. Curtis by knowingly and intentionally offering one thousand five hundred dollars ($1,500.00) current money of the United States of America to Bobby L. Curtis paid and promised to be paid to kill Linda Faye Doty by shooting her with a sawed off shotgun .

The allegation in the indictment concerning the employment of Curtis to shoot Linda Faye Doty is an allegation necessary to raise the offense from murder to capital murder; Y.T.C.A. Penal Code, Sec. 19.-03(a)(3); it is not an allegation of an act done to effect the intended offense of murder. Y.T.C.A. Penal Code, Sec. 15.01(a).

In Colman v. State, 542 S.W.2d 144 (Tex. Cr.App.1976) an indictment for the offense of attempted capital murder was held sufficient. It alleged the defendant:

“. . . then and there, with the specific intent to commit the offense of capital murder, attempt to cause the death of Terry L. Graves, hereinafter called complainant, by shooting the said Terry L. Graves with a pistol and the said complainant was a peace officer then and there acting in the lawful discharge of an official duty to-wit: attempting to arrest said defendant and the said defendant then and there knew the said complainant to be a peace officer.”

In Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978), with four judges dissenting because they considered the indictment insufficient for a different reason than that now in issue, an indictment was held sufficient which alleged that the defendant:

“. . On or about May 23, 1975, did then and there unlawfully, knowingly and intentionally attempt to cause the death of Jerry Powell by cutting and stabbing him with a knife and by shooting him with a gun, the said Jerry Powell being a peace officer acting in the lawful discharge of his official duties and the said Defendant then and there knew the said Jerry Powell was a peace officer acting in the discharge of his official duty.”

In Pitts v. State, 569 S.W.2d 898 (Tex.Cr. App.1978), an indictment for the offense of attempted capital murder was held sufficient when it alleged that the defendant:

“. . . did then and there unlawfully attempt to intentionally and knowingly cause the death of S. L. Serres, by shooting him with a gun, the said S. L. Serres being a peace officer acting in the lawful discharge of an official duty and the said Larry Charles Pitts then and there knew the said Complainant was a peace officer.”

While the constituent element of capital murder alleged in the instant case was employment of another for remuneration, V.T. C.A. Penal Code, Sec. 19.03(a)(3), the constituent element of capital murder alleged in Colman v. State, supra, Dovalina v. State, supra, and Pitts v. State, supra, was that the defendant knew the victim was a peace officer in the discharge of his lawful duties. V.T.C.A. Penal Code, Sec. 19.-03(a)(1). In Colman v. State, supra, and Pitts v. State, supra, the act which it is alleged the appellant did in the commission of the offense of criminal attempt was shooting the victim with a gun. V.T.C.A. Penal Code, Sec. 15.01(a). In Dovalina v. State, supra, the act alleged to effect the offense of criminal attempt was by cutting the victim with a knife and shooting him with a gun. V.T.C.A. Penal Code, Sec. 15.-01(a). In the instant case there is no allegation of an act which the appellant did to effect the intended offense of murder.

The State argues that since the indictment in the instant case alleges that the appellant “was employing” Bobby L. Curtis for the purpose of committing capital murder it is sufficient. The State then attempts to distinguish this indictment from the indictment held to be insufficient in Hobbs v. State, 548 S.W.2d 884 (Tex.Cr. App.1977). The indictment in that case alleged:

“That Joyce Hobbs on or about the 25th day of July, A.D., 1975, ... did then and there attempt knowingly to cause the death of James Leon Hobbs, by promising remuneration to wit: promising to pay Virgil McCuller $100 to kill the said James Leon Hobbs by shooting him with a gun.”

I fail to see a distinguishing difference between “was employing” and “promising to pay.” Both indictments fail to allege an act to effect the intended offense of capital murder. This indictment alleges no act which was committed to accomplish the murder of Linda Faye Doty.

The point may be better illustrated by an example. Even if there had been an additional allegation that either the appellant or Curtis had obtained a gun with which to kill Linda Faye Doty, the allegations would not have been sufficient, because obtaining the gun would show mere preparation to commit the intended offense of murder.

The majority analysis of V.T.C.A. Penal Code, Sec. 19.03(a)(3) is too “very simple.” The employer in a murder for hire is not guilty of the offense of attempted murder until there is an attempt to kill the intended victim.

If the employer for a hired killing pays the employee and no other act is done to effect the intended murder, the employer would be guilty of solicitation to commit capital murder. V.T.C.A. Penal Code, Sec. 15.03(a). If either the employer or employee obtains a gun to kill the intended victim, this would be an overt act and both employer and employee would be guilty of a conspiracy to commit capital murder. V.T.C.A. Penal Code, Sec. 15.02(a). If the employee hired to kill the victim commits an act such as shooting at the intended victim, both the employer and employee would be guilty of attempted capital murder. V.T.C.A. Penal Code, Sec. 15.01.

Even if the indictment in this case be interpreted to mean that the appellant had already paid Curtis to kill Linda Faye Doty, that is only an act that increases the seriousness of the offense from murder to capital murder. The act of paying the money is not an attempt to kill the victim. The majority is clearly wrong in saying that: “In fact, once such a contract of employment exists, the principal has completed his role and may be guilty of capital murder or attempted capital murder, depending on the success of his agent.” If the employee merely accepts the money and has not or does not do any other act, the employer is clearly only guilty of solicitation of capital murder; not attempted murder.

We should hold that the indictment does not properly allege the offense of attempted capital murder. I dissent.

      . One who resorts to form books for guidance in drawing an indictment charging the offense of criminal attempt to hire for murder is in for a mind boggling experience. See and compare 7 Texas Practice 29 and 34, Morrison & Blackwell, Criminal Forms Annotated (8th Ed.1977) §§ 2.01 and 4.06; 1 Texas Annotated Penal Statutes, Branch’s 3d Ed. (1974) 634, § 15.01 and 2 Texas Annotated Penal Statutes, Branch’s 3d Ed. (1974) 17, § 19.03; McClung, Jury Charges for Texas Criminal Practice (Rev. Ed.1979) 286 and 293-294. Compare also Texas Jury Pattern Criminal Charges (1975) 91, CPJC 15.01 and 127, CPJC 19.03(a)(3); 8 Texas Practice 246 and 267, Morrison & Blackwell, Criminal Forms Annotated (8th Ed.1977) §§ 91.01 and 93.06.

      . Influenced, perhaps, by the acknowledgement in its preface that the work was prepared with the assistance of the Texas District and County Attorneys Association.

      . The cases of attempted capital murder of a peace officer are really not all that helpful here. Usually each is a ‘.‘one on one” situation, arising extemporaneously, in which the accused intentionally or knowingly and personally engaged in some act designed to kill, but failed. Of course, in neither attempt situation is there an actual killing. The problem, then, is at what point did an effort that failed in its objective amount to an attempt. In the peace officer cases the solution is easy because immediately and contemporaneously there exists every factor necessary for capital murder — except death. In the hiring cases, though, the problem solver must decide when all requisite elements — excluding death — coalesce into an attempt to cause death. Given an addition of at least one other essential party and quite different policy considerations in the latter situation, solutions to the former do not necessarily control.

      .See Dovalina v. State, 564 S.W.2d 378 (Tex. Cr.App.1978) and Telfair v. State, 565 S.W.2d 522 (Tex.Cr.App.1978). If the 1978 alignment still holds today, my vote will convert what was then minority expression to a majority holding now.

      . Inchoate means “imperfect; partial; unfinished; begun, but not completed . . Black’s Law Dictionary, Revised Fourth Edition, 904.

      . “First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting. * * * Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent.” Note, however, that our State requires only an act that "tends” to effect commission of the object offense, not that it be substantial.

      . Quoting approvingly from 1 Bishop Criminal Law §§ 727, 728:
      “If a man undertakes to do a particular wrong of the indictable sort, and does some act towards it, but fails to complete what he meant, his evil intent and act together constitute ... a common-law crime, provided that act is not too trivial and small for the law’s notice; for the intent is sufficient, and the adequacy of the act is the only further object of inquiry. Therefore an attempt is an intent to do a particular thing which the law, common or statutory, has declared to be a crime, coupled with an act towards the doing sufficient in magnitude and proximity to the fact intended to be taken cognizance of by the law, that does not concern itself with things trivial and small; or, more briefly, an attempt is an intent to do a particular criminal thing, with act towards it falling short of the thing intended.”

      .Quoting approvingly from 9 Crim.Law.Mag. 162:
      “So long as the crime remains in mere intention, it is not punishable; but, if an attempt is made to execute the intention which falls short of its consummation, a crime is committed. Here an act and intent coalesce; the intent has passed into action, although that action was futile.”

      . See United States v. Jackson, 435 F.Supp. 434, 439 (E.D.N.Y.1976): An overt act may further a conspiracy regardless of its importance to the overall scheme whereas an attempt involves a “manifestation of dangerousness.”

      . V.T.C.A. Penal Code provides:
      “Sec. 19.02. Murder.
      “(a) A person commits an offense if he:
      “(1) intentionally or knowingly causes the death of an individual; .
      “Sec. 19.03. Capital Murder.
      “(a) A person commits an offense if he commits murder as defined under Sec. 19.02(a)(1) of this code and:
      “(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;
      “(2) . . .
      “(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.”

      . “Criminal Solicitation.
      “(a) A person commits an offense if, ’with intent that a capital felony or felony of the first degree be committed, he requests, commends, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor he believes them to be, would constitute the felony or make the other a party to its commission.”

      . “Criminal Conspiracy.
      “(a) A person commits criminal conspiracy if, with intent that a felony be committed:
      “(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
      “(2) he or one or more of them performs an overt act in pursuance of the agreement.”


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    Sam COPLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 57032.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 27, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.
    H. Tati Santiesteban, El Paso, for appellant.
    Henry M. Wade, Dist. Atty., Stephen J. Wilensky, Richard Worthy and Dick Zadina, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Sam Coplin appeals from his conviction for misapplication of fiduciary property having a value of $10,000 or more. Punishment was assessed by the jury at seven years and a $5,000 fine.

Coplin contends that his conduct was not unlawful, that the charge was vague and misleading and that a portion of the charge constituted a comment on the weight of the evidence. The sufficiency of the evidence is not challenged.

During 1975, Coplin promoted a Henry Mancini-Dionn Warwick concert and the closed circuit TV broadcast of the Mu-hammed Ali-Joe Bugner fight. Ted Mitchell and David Tripplehorn provided the financial investment for these ventures. In June, 1975, Coplin approached Mitchell and Tripplehorn about the TV rights for the upcoming Ali-Joe Frazier fight. Mitchell and Tripplehorn invested $30,000. In August, Coplin informed Mitchell and Tripple-hom that he had obtained TV rights in fifteen cities but that he needed an additional $30,000. An agreement was signed by the parties. Coplin represented that he had already obtained the TV rights in fifteen cities. After the fight was held, Cop-lin told his partners that the venture had been successful; however, he never paid them any money. Coplin had never obtained any TV rights to the fight. He deposited the second $30,000 in the First National Bank of Euless on September 2, 1975. He withdrew $26,000 in cash the same day.

Section 32.45 of the Penal Code defines the offense of misapplication of fiduciary property. The statute defines fiduciary as:

“(a) For purposes of this section:
“(1) ‘Fiduciary’ includes:
“(A) trustee, guardian, administrator, executor, conservator, and receiver;
“(B) any other person acting in a fiduciary capacity, but not a commercial bailee; and
“(C) an officer, manager, employee, or agent carrying on fiduciary functions on behalf of a fiduciary.”

The statute then defines the offense as:

“(b) A person commits an offense if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.”

The indictment essentially alleged that a joint venture was created between Tripple-horn, Mitchell and Coplin, that Coplin held funds from the joint venture as a fiduciary and that Coplin misapplied these funds.

A joint venture, while it is similar to a partnership, differs in that it is limited to a single transaction rather than an ongoing business. 33 Tex.Jur.2d 289, Joint Adventures, Section 3 (1962). However, just as with a partnership,

“[t]he parties bear a fiduciary relation one to another, and are bound to the same degree of good faith as that which is required in case of a partnership.” 33 Tex.Jur.2d 294, Joint Adventures, Section 6.

In its discussion of the fiduciary duty owed by partners to each other, Texas Jurisprudence observes that the existence of a fiduciary relationship “is especially true in favor of a partner who is ignorant of the details of the business as against one who has been entrusted and charged therewith as an expert, and whose advice and good faith have been relied on.” 44 Tex.Jur.2d 376, Partnership, Section 50 (1963).

The State both alleged and proved the existence of the joint venture and Cop-lin’s misapplication of joint venture funds. However, Coplin contends that his conduct does not violate the statute. He argues that the statutory definition in Section 32.-45(a)(1)(B), “any other person acting in a fiduciary capacity,” must be interpreted in a narrow sense to embrace only an individual associated with the fiduciaries enumerated in Section 32.45(a)(1)(A), “trustee, guardian, administrator, executor, conservator, and receiver.” We do not agree with this interpretation. The statute sets out three distinct groups that are fiduciaries. The final group, Section 32.45(a)(1)(C), includes those acting for a fiduciary. Where the Legislature has used plain language, such as Section 32.45(a)(1)(B), there is no reason for us to interpret that language in any way other than normal usage. We hold that “any other person acting in a fiduciary capacity” embraces any fiduciary, including a joint adventurer or partner, not enumerated in Section 32.45(a)(1)(A).

Complaint is next made that the jury charge is vague and confusing because it fails to define the following crucial terms: “fiduciary property”, “commercial bailee”, “trustee”, “guardian”, “administrator”, “executor”, “conservator”, “receiver” and “managing partner.” Coplin also contends that “fiduciary” is not completely defined.

We have examined the charge. It defines the offense and applies the facts to the law. It defines the terms fiduciary, joint venturer, misapply, owner, benefit and property. The charge properly submits the case to the jury in accordance with the statute. We note that “trustee”, “guardian”, “administrator”, “executor”, “conservator”, and “receiver” are not essential terms in a prosecution under Section 32.-. 45(a)(1)(B). No error is shown.

Coplin contends that the charge comments on the weight of the evidence. He objected to the following portion:

“Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the defendant, Sam Coplin, on or about the 15th day of October, 1975, in the County of Dallas and the State of Texas, as alleged in the second count of the Indictment, did then and there intentionally or knowingly misapply property, to-wit: Current Money of the United States of America of the value of $10,-000.00 or more which he held as a fiduciary but not as a commercial bailee, to-wit: as the managing partner of a joint venture with Tripplehorn-Mitchell Interests as evidenced by a written instrument entitled ‘AGREEMENT FOR INVESTMENT IN ALI/FRASER CLOSED-CIRCUIT TELECAST’, dated the 29th day of August, 1975, and signed by Ted. H. Mitchell on behalf of Tripplehorn-Mitch-ell Interests, and Sam Coplin, individually and as president of Dallas Sporting Events, Inc., in a manner that involved substantial risk of loss to Tripplehorn-Mitchell Interests, the owner of said property, by then and there utilizing said property for purposes other than those for which it was invested as stated in the agreement aforesaid under which said property was held, you will find the defendant guilty of the offense of misapplication of fiduciary property of a value of $10,000 or more, as charged in the second count of the Indictment.”

This paragraph essentially tracks the indictment. It begins “if you find and believe.” It requires the jury to find Coplin guilty, beyond a reasonable doubt, of being a fiduciary exactly as alleged in the indictment. This is not a comment on the weight of the evidence.

There is no reversible error. The judgment is affirmed.


author: DALLY, Judge.

text:
    Jerry Wayne TRUSSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 57242.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 27, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      George L. Thompson, III, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., and Cloris Michael Ward, Asst. Dist. Atty., Lubbock, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was enhanced by two prior felony convictions, and was automatically assessed at imprisonment for life.

Appellant asserts that the trial court improperly refused to admit an offense report into evidence, and the trial court erred in allowing improper impeachment of an alibi witness.

Appellant was convicted for participating in the early morning armed robbery of several employees of the American Bank of Commerce in Wolfforth on August 31,1976. None of the robbery victims could identify appellant as one of the robbers because the robbers wore ski masks. However, T. B. Brown testified that while at work at the Frenship Co-op Gin near Wolfforth on the morning of August 31, 1976, he saw four men drive up in a white Ford LTD, transfer to a maroon Pontiac and a pickup truck and leave. Brown identified appellant as one of the men who left in the pickup. The white Ford was identified by one of the robbery victims as the car which the robbers used. Two of appellant’s co-defendants were apprehended in the maroon car, with money from the bank in their possession. Appellant was apprehended later at his residence.

Brown had viewed a pretrial lineup consisting of appellant and six other men. Brown testified at a pretrial hearing that he identified appellant at the lineup. At trial Brown identified appellant before the jury as one of the men he had seen change vehicles near the gin. Neither party questioned Brown concerning his pretrial identification.

During the presentation of his defense appellant offered, out of the presence of the jury, an offense report made by Lubbock County Deputy Sheriff J. B. Douglas which stated in part that Brown was unable to identify anyone in the lineup. Appellant laid a predicate for the report as a business record under Art. 3737e, V.A.C.S. Appellant’s offer was refused by the court, and the report was not admitted. However, the court offered to recess the trial to allow Douglas, who was in south Texas, to return and testify in appellant’s behalf. Appellant declined the opportunity and called no further witnesses. The State subsequently called Brown on rebuttal and he testified that he identified appellant at the lineup. Since Douglas never testified, the record does not reveal whether the offense report was in error in stating that Brown did not identify the appellant in the lineup.

Appellant contends that the court’s refusal to accept the offense report in evidence was error. This Court has held offense reports admissible as official records under Art. 3731a, V.A.C.S. See Fite v. State, 158 Tex.Cr.R. 611, 259 S.W.2d 198 (1953). Offense reports have also been admitted as official records in civil courts. City of San Antonio v. Poulos, 403 S.W.2d 168 (Tex.Civ. App. — San Antonio 1966), aff’d on other grounds, 422 S.W.2d 140 (Tex.Sup. 1967); Statier Hotel v. Herbert Rosenthal Jewelry Corp., 351 S.W.2d 579 (Tex.Civ.App. — Dallas 1961, writ ref’d n. r. e.). In regard to the admissibility of the offense report as a business record, we note that his Court has held that the Business Records Act, Art. 3737e, V.A.C.S., applies to criminal cases, see e. g. Williams v. State, 549 S.W.2d 183 (Tex.Cr.App. 1977); Dalton v. State, 516 S.W.2d 937 (Tex.Cr.App. 1974), and “business” is defined broadly enough in Sec. 4 of the act to include law enforcement agencies. See Gassett v. State, 532 S.W.2d 328 (Tex.Cr.App. 1976); Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App. 1973).

The report must have sufficient indicia of reliability to satisfy the Sixth Amendment right of the accused to confront witnesses against him. See Battee v. State, 543 S.W.2d 91 (Tex.Cr.App. 1976) (Opinion on State’s Motion for Rehearing); Coulter v. State, supra. In this case appellant, not the State, offered the offense report in evidence, and right of confrontation concerns are not critical. Appellant questioned Chief Deputy Sheriff Albert Smith, custodian of the Lubbock County Sheriff’s Department records, and laid a proper predicate for the admission of the offense report as a business record.

The offense report was admissible as a business record, pursuant to Art. 3737e, supra. However, we note that if appellant offered only a part of the report in evidence, the State would have been free to offer the related portions of the report under the rule of completeness. Art. 38.24, V.A.C.C.P.; see Cerda v. State, 557 S.W.2d 954 (Tex.Cr.App. 1977); Bermudez v. State, 504 S.W.2d 868 (Tex.Cr.App. 1974); Willeford v. State, 489 S.W.2d 292 (Tex.Cr.App. 1973).

Though it is clear from the record that appellant offered the offense report as a business record, it is.not clear whether appellant offered the report to impeach Brown’s in-court identification of appellant, or offered it as original evidence tending to prove appellant’s innocence of the offense charged. If offered to impeach Brown’s identification, evidence that Brown had earlier failed to pick appellant out of a lineup would in effect constitute evidence of a prior inconsistent statement by Brown. See International & G. N. R. Co. v. Boykin, 99 Tex. 259, 89 S.W. 639 (1905). Appellant did not lay a proper foundation for impeaching Brown with the prior inconsistent statement by cross-examining Brown concerning the time, place, and circumstances of the pretrial identification, to allow Brown the opportunity to deny the prior inconsistent statement or explain the circumstances of its making. This foundation must be laid before a prior inconsistent statement may be used to impeach a witness. See Ellingsworth v. State, 487 S.W.2d 108 (Tex.Cr.App. 1972); Huffman v. State, 479 S.W.2d 62 (Tex.Cr.App. 1972).

If not offered to impeach Brown, but as original evidence tending to exculpate appellant, the offered evidence was hearsay within hearsay. Brown’s failure to pick out appellant from the lineup constituted, in effect, an out-of-court statement by Brown that appellant was not one of the men he saw transfer from the robbery vehicle to the pickup near the Frenship Co-op Gin on the morning of the offense, and that statement was being offered for its truth. This was hearsay within the report itself, and was inadmissible. See Texas Dept. of Public Safety v. Nesmith, 559 S.W.2d 443 (Tex.Civ.App. — Corpus Christi 1977, no writ); Sims v. Davis, 388 S.W.2d 752 (Tex. Civ.App. — Houston 1965, no writ).

Summarizing, although the offense report in question was admissible as a business record and could not be excluded on that ground alone, the portion of the report offered by appellant was not admissible to impeach Brown because appellant laid no foundation for its admission, and was not admissible other than to impeach Brown because it constituted inadmissible hearsay. See International & G. N. R. Co. v. Boykin, supra; 62 Tex.Jur.2d, Witnesses, Sec. 306, pp. 306-307, and the cases there cited in footnote 1, p. 307. The trial court did not. err in excluding the offered evidence.

Appellant contends that the prosecutor committed reversible error when he impeached appellant’s alibi witness by showing that the witness was confined in jail at the time of trial. During his cross-examination of appellant’s wife the prosecutor asked her where she resided; she replied, “the Lubbock County Jail.” It is proper to question a witness as to his place of residence and occupation, in order to identify the witness and place before the jury facts which enable them to assess the witness’ credibility. 62 Tex.Jur.2d, Witnesses, Sec. 142, p. 12; Elam v. State, 518 S.W.2d 367 (Tex.Cr.App. 1975); Galveston, H. & S. A. Railway Co. v. Henry, 252 S.W. 210 (Tex.Civ.App. — Galveston 1923). The trial court sustained appellant’s objection when the prosecutor went on to ask why Mrs. Trussed was in jail. No error is shown.

The judgment is affirmed.


text:
    James Warren BRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 57455.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 27, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Mark C. Hall, on appeal only, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and J. David Nelson, Asst. Dist. Atty., Lubbock, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for aggravated rape. The punishment is imprisonment for ninety-nine years.

Appellant contends that the evidence is insufficient to prove aggravated rape; evidence of a prior conviction offered at the punishment phase was improperly admitted because it was not proved beyond a reasonable doubt; the trial court erred by including a definition of “criminal episode” in the charge; the prosecutor engaged in improper jury argument; and the trial court erroneously denied appellant, who represented himself prior to the trial on the merits, an annotated copy of the Code of Criminal Procedure.

On September 26, 1975, the complaining witness was preparing to leave her house for the airport when appellant appeared at her door and asked to use the telephone. She admitted the appellant, showed him the telephone, and continued to pack. She described the subsequent events as follows:

“Q. Okay. What happened then?
“A. I — I—I just was walking into the bedroom and — and he appeared behind me and said, T need some money.’
“Q. Were you startled at this point?
“A. I was terrified.
“Q. What did you do?
“A. I said, ‘All right — oh—okay, I will get you some money. You go on outside,’ and I backed off and he said, ‘Where is your money?’ And I said, ‘That’s okay, I’ll get you some money, just go outside and I’ll bring you some money.’
“Q. Okay. What did you do at that point?
“A. And he said, ‘Well, no, I’m not going anywhere. I'm going to get your money,’ and I said, ‘Okay, okay. I’ll
—I’ll—I’ll get it for you.’
“But, instead of looking toward my money, I tried to get around him and as I did—
******
“Q. Did you attempt to move around him, is that what you were intending—
“A. Yes, I screamed and I ran around him and, in fact, he grabbed for me—
“Q. Now, wait just a minute.
“How — how loudly did you scream?
“A. As loud as I could.
“Q. All right. Were you in a state of panic or what was your condition at that time?
“A. I was totally terrified.
“Q. Okay. What happened next?
“A. I — well, as a matter of fact he grabbed for me and, in fact, he got hold of me once and I got away and as I ran, I ran toward this room— this door—
“Q. Why were you going for that door?
“A. Because I was afraid maybe he had locked the front door and I couldn’t get out and I knew that door was open because I had just come through it.
“Q. All right. Did you make it to the door?
“A. No.
“Q. What happened?
“A. I got — I got right here and he slammed the door behind me as loud as he could and — and said, ‘I’ll kill you if you do that again.’
“Q. Okay. Now, I know this is difficult for you, but what happened then?
“A. And then, I said — I said, ‘Oh,’ and I struggled with him and screamed and he grabbed my wrist — he grabbed my wrists right about here right above my arms and held them and he said, ‘Don’t you move again, don’t you try that again, you try it again and I’ll kill you.’
“Q. Okay. Were you frightened at that point?
“A. I was totally terrified.
“Q. Were you in fear that he might carry out this threat?
“A. Yes.
“Q. Okay. What happened then after you ran for the door?
“A. Well, he was holding my arms and I said, ‘Look, you just want some money, and he — he was very agitated, he was very angry.
“And, I said, ‘Okay, okay, I will get you some money,’ and I tried to calm myself because I thought the only way out of this has to be calm. I don’t know what else to do.
“So, he took my arms above the wrists and he pulled me into the dining room area—
******
“Q. Okay. What happened next then?
“A. And so, there is a divan here and he just pulled me over and sat me down on the divan, and I remember thinking, ‘Now, what else can I do? ’ ******
“Q. What did he say then?
“A. He said, ‘Oh, no, don’t you move.’
“In fact, as I said, I jumped, I tried to get away at that point because he was sitting down and I thought, ‘Now is my chance,’ and he said, ‘Don’t you do that again, I’ll kill you.’
“Q. Okay. I assume you were terrified at this point.
“And what did you do then?
“A. And so, I said, — well at that point— when he said, ‘I’ll kill you,’ again, he moved across me, took his arms and moved them across my body and I said, ‘Oh, no, you don’t want to do that,’ and then he said, ‘Oh yeah, I’m going to do that.’
“I said, ‘you just want money.’
“He said, ‘No problem.’
“I said, ‘No problem, I’ll get you the money,’ and he said, ‘Oh, no, we’re going into the bedroom.’ ”

Appellant then dragged the complaining witness into the bedroom, where he forced her to engage in acts of sexual intercourse and deviate sexual intercourse. Thereafter, appellant bound the complaining witness’ hands and feet with articles of her clothing, and rummaged through the house in search of money, drugs, and a gun. After again threatening to kill the complaining witness, appellant left the house and drove away in her car.

The indictment alleges, in pertinent part, that appellant

“intentionally and knowingly by force, that overcame such earnest resistance as might reasonably have been expected under the circumstances, compelled] C-S_, a female not his wife, to submit to sexual intercourse without her consent and the said JAMES WARREN BRIGHT did then and there intentionally and knowingly compel C_S_to submit to sexual intercourse by threat of death to be imminently inflicted on C S—

V.T.C.A. Penal Code, Secs. 21.02 and 21.-03(a)(2).

Appellant contends that the evidence of aggravation is insufficient because there was no unconditional threat of death to be immediately inflicted prior to the rape, citing Blount v. State, 542 S.W.2d 164 (Tex.Cr. App.1976). In Blount, we held that where the only threat of death or serious bodily injury was made after the rape, was conditioned on the victim going to the police, and related to some indefinite time in the future, the threat was not sufficient to satisfy the statutory requirement that the threat be imminent.

The instant case is clearly distinguishable from Blount. Appellant repeatedly threatened to kill the complaining witness if she resisted him or sought to flee. These threats were made prior to and within minutes of the rape, and were neither conditional nor indefinite as to time.

Appellant argues that the threats of death were directed toward robbery, not rape. This is an overly restricted reading of the testimony. Appellant seized the complaining witness, threatened her with death if she attempted to escape, demanded she give him money, and raped her. It is both irrational and contrary to the evidence to suggest that the complaining witness did not consider the appellant’s death threats when she submitted to the rape. We hold that the evidence is sufficient to establish that appellant compelled the complaining witness to submit to the rape by threat of the imminent infliction of death.

Appellant contends that evidence of a prior conviction offered at the punishment phase of the trial should not have been admitted because the conviction and probation were not established beyond a reasonable doubt. The State sought to prove the prior conviction by the testimony of Don Davis. This testimony, in its entirety, is as follows:

“Q. Would you please state .your name for the record?
“A. Don Davis.
“Q. Mr. Davis, how are you employed?
“A. I am a counselor at Trinity University in San Antonio.
“Q. And, how long have you lived in San Antonio?
“A. Approximately 28 years.
“Q. What did you do prior to your current position there with the University?
“A. I was a — I was an adult probation officer for the Bexar County — Bexar County in San Antonio.
“Q. How long did you serve as an adult probation officer?
“A. I was there two years.
“Q. Okay. While serving in that capacity, did you have an occasion on the 7th day of January, 1974, to encounter one James Warren Bright?
“A. Yes.
“Q. Is that man in the Courtroom today?
“A. Yes, sir, he is.
“Q. Where is he seated, please?
“A. He’s seated right there behind this gentleman here, (indicating the Defendant.)
“Q. All right. I am now pointing at the Defendant in the cause now before the Court—
“A. Yeah, the man standing right there.
“Q. Okay. Would you explain to the jury the nature of your encounter — what brought on this encounter?
“A. The man was arrested for burglary and pleaded guilty in the 186th District Court, found guilty in the 186th District Court, and the case was sent to the probation office and I was made probation officer to investigate the case.
“I did the pre-sentence investigation and that’s where I met James Warren Bright.
“Q. Was he placed on probation?
“A. Yes, he was.
“Q. And, was he represented by an attorney when he plead guilty?
“A. Yes, sir.
“Q. And, was that Mr. Robert Spicer, is that correct?
“A. Yes, sir.
“Q. Okay.
“MR. WOODAL: We will pass the witness.
“MR. MILLSAP: No questions, Your Honor.
“THE COURT: You may step down.
“MR. WOODAL: Just one additional question, please.
“Q. Was that in Cause Number 72-1816?
“A. 72-1316.
“Q. Okay. Thank you.
“THE COURT: Anything further, counsel?
“Mr. Millsap, do you have any questions?
“MR. MILLSAP: No, sir.”

This testimony establishes that, prior to the instant offense, appellant was indicted for burglary in Bexar County Cause No. 72-1316, and that he entered a plea of guilty. It further establishes that imposition of sentence in that cause was suspended, and appellant was placed on probation. While this testimony would certainly have been subject to an objection on best evidence grounds, appellant voiced no objection whatsoever. In the absence of an objection, we hold that this testimony is competent and sufficient to prove a prior probated sentence. Art. 37.07, Sec. 3(a), V.A.C. C.P.; Thompson v. State, 563 S.W.2d 247 (Tex.Cr.App.1978); Gonzales v. State, 532 S.W.2d 343 (Tex.Cr.App.1976).

The trial court’s charge to the jury contained the following definition:

“ ‘Criminal episode’ means all conduct incident to the attempt or accomplishment of a single criminal objective, even though the harm is directed toward or inflicted upon more than one person.”

Appellant contends that by so charging the jury, the trial court authorized a conviction on a theory of law not alleged in the indictment. Since appellant did not object to this portion of the charge, we are presented with reversible error only if the error alleged is fundamental.

It is now established that if that portion of the charge which applies the law to the facts authorizes a conviction on a theory not alleged in the indictment, the charge contains fundamental error. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App. 1979) and the cases therein cited. However, the alleged error complained of by appellant appears in that portion of the charge setting out definitions of pertinent words and phrases. That portion of the charge applying the law to the facts does not authorize a conviction on an unalleged theory, and does not contain the term “criminal episode.”

From our examination of the record, it does not appear that the error, if any, in defining the term “criminal episode” for the jury was calculated to injure the rights of appellant, nor did it deny him a fair and impartial trial. Art. 36.19, V.A.C.C.P. This ground of error is overruled.

In two grounds of error, appellant contends that during jury argument the prosecutor improperly expressed a personal and emotional involvement in the case, and personally attacked appellant’s appointed defense counsel. No objection was voiced to these remarks, which were not so inflammatory and prejudicial as to have rendered an instruction to disregard insufficient to remove the prejudice. These grounds of error are overruled.

On August 24, 1976, during pretrial proceedings, appellant requested that he be permitted to represent himself. This request was granted, and from that date until September 14, the day trial testimony began, appellant acted as his own counsel. On September 3, appellant made the following request:

“THE DEFENDANT: Your Honor, I have requested a set of volume — five books, legal books — legal books that were in a five-volume set and I only received one book.
“I did get the Code of — the Penal Code, Your Honor, but I only got one book of the Code of Criminal Procedure.
“THE COURT: The Code of Criminal Procedure that has been furnished to you is the entire Code of Criminal Procedure, as amended and is up to date in all respects and constitutes the entire Code of the Texas Code of Criminal Procedure.”

Appellant contends that the trial court erred by not furnishing him the annotated Code of Criminal Procedure.

Appellant relies on Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), which holds that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. In the instant case, an attorney was appointed to represent appellant, and even after appellant’s request to represent himself was granted, this attorney was instructed by the trial court to continue as standby counsel. Thus, appellant was provided adequate assistance from persons skilled in the law.

Moreover, the only harm appellant contends he suffered due to his lack of personal access to an annotated code is the denial of his motion for a continuance at the close of the State’s evidence. The motion was made in order that subpoenas for defense witnesses could be served, and was denied, in part, because the subpoena applications were not sworn. Appellant argues he did not know of this requirement because he did not have an annotated code. However, the requirement that subpoena applications be sworn is clearly stated in the text of Art. 24.03, V.A.C.C.P., not in the annotations. This ground of error is without merit.

The judgment is affirmed.


author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    Leon William GUEVARA, Appellant, v. The STATE of Texas, Appellee.
    No. 57629.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 27, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Anthony Sauer, Fredericksburg, for appellant.
    Gerald W. Schmidt, County Atty., Fred-ericksburg, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

ROBERTS, Judge.

This appeal came to us on a bare transcript, without a statement of facts or appellant’s' brief. By an unpublished per cu-riam opinion delivered February 15, 1978, we abated the appeal so that the trial court could inquire why no statement of facts was prepared and why neither the retained counsel nor the appointed counsel filed a brief for the appellant. The trial court has conducted a hearing, and we reinstate the appeal.

We need not reach the question of whether the appellant has been denied effective assistance of counsel on appeal. Fundamental error appears in the record (which still lacks a statement of facts and a brief on the merits).

The appellant was charged by an information which alleges that he “did then and there intentionally obstruct and prevent the arrest of Leon William Guevara by use of force against Tom S. Adams, Jr. hereafter called complainant; and that the said Leon William Guevara knew complainant to be a Peace Officer.”

The elements of resisting arrest (Texas Penal Code, Section 38.03) are:

1. a person

2. intentionally

3. prevents or obstructs a person he knows is a peace officer (or a person acting in a peace officer’s presence and at his direction) from effecting an arrest of the actor or another

4. by using force against the peace officer or another.

The information does not allege that the appellant prevented or obstructed a person he knew was a peace officer from effecting an arrest. This is the gist of the offense. Resisting arrest occurs only when a peace officer (or his agent) is prevented or obstructed from effecting an arrest. The information merely alleges that “an arrest” was prevented and obstructed. So far as the information shows, the person trying to effect this arrest may not have been a peace officer (or his agent). Such an information does not charge the offense of resisting arrest. [The person against whom force was used is alleged to have been a peace officer, but this is surplusage and not sufficient to cure the error. The person against whom force is used may be anyone: “the peace officer or another.” Texas Penal Code, Section 38.03(a).]

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The information covers all of the elements of V.T.C.A., Penal Code, Section 38.-03. It alleges that appellant

“[d]id then and there obstruct and prevent the arrest of Leon William Guevara by the use of force against Tom S. Adams Jr., hereinafter called complainant, and that the said Leon William Guevara knew complainant to be a Peace Officer.”

By any reasonable construction the information alleges that appellant intentionally obstructed his own arrest by use of force against Adams and that appellant knew that Adams was a peace officer. The majority writes: “ . . . the person trying to effect this arrest may not have been a peace officer.” There was no motion to set aside or quash the information. No complaint about the information has been raised on appeal.

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.”

Even without resorting to this statute, the information sufficiently alleges that Adams was attempting to arrest appellant and that appellant used force against Adams to prevent the arrest.

The information is sufficient. The cause should not be reversed.


author: TOM G. DAVIS, Judge.

text:
    Helen TORRES, a/k/a Mary Jane Perez a/k/a Baby Helen Perez, Appellant, v. The STATE of Texas, Appellee.
    No. 57697.
    Court of Criminal Appeals of Texas, Panel No. 2.
    July 11, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Ken J. McLean, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Kenneth Levi, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. Punishment, enhanced by one prior conviction, was assessed at 15 years. V.T.C.A. Penal Code, Sec. 12.42(c).

Appellant contends that the trial court erred in refusing to submit her requested instruction on involuntary intoxication.

Appellant and Robert Miranda broke into the house of Margaret Garcia at 3:00 a. m. on the morning of July 18, 1975. Mrs. Garcia was first awakened by voices. When the lights in the room were turned on she saw Miranda standing in the room with a gun and the appellant nearby holding a knife. Both intruders threatened to kill Mrs. Garcia if she did not comply with their demands.

Mrs. Garcia was forced to go throughout her house gathering almost every item of value and then load them into her car. The car was ultimately loaded to capacity with rugs, pictures, furniture, appliances, and other household goods. During this procedure the appellant would sometimes hold the gun on Mrs. Garcia while Miranda was elsewhere.

The next morning Mrs. Garcia was forced to accompany appellant and Miranda to Garcia’s bank to cash two checks they had forced her to write. They first went to a drive-in window. The teller refused to cash the checks as Mrs. Garcia did not have any identification. Mrs. Garcia suggested that she could cash the checks inside the bank. Miranda allowed Mrs. Garcia to go inside the bank.

Mrs. Garcia notified a police officer inside the bank of the robbery in progress. The officer went outside to investigate. Upon seeing the officer, Miranda ran from the scene. The officer pursued, and after an exchange of gunfire Miranda was wounded and apprehended.

Some ten minutes later other officers summoned to the scene found the appellant asleep in Mrs. Garcia’s car. The car was still on the parking lot of the bank.

Mrs. Garcia testified that the appellant was taking the initiative and guiding the actions of Miranda when they first came into her house. Later, on the way to the bank, Mrs. Garcia noticed that the appellant seemed to be going to sleep. Although Mrs. Garcia did not see the appellant or Miranda take any pills, she stated that their actions during the episode led her to believe that both were on drugs.

The only defense witness was Robert Miranda. The record reflects that Miranda had already been convicted and sent to prison for his part in the robbery. Miranda also admitted to another prior conviction.

Miranda testified that on the night of the offense he and the appellant had been at a bar until about 2:00 a. m. Miranda stated that he had been drinking and taking “pills” while there. From the bar he and the appellant went home.

According to Miranda, appellant had complained to him because he had not found a job. Appellant finally asked Miranda to take her home as she had a headache. Once at the house, Miranda mixed water, “Alka Seltzer,” and “4 or 5” 250-milligram tablets of Thorazine for the appellant. Appellant was not told that the Thorazine tablets had been included in the mixture.

Miranda testified that Thorazine tablets were “downers, depressers and makes you ■> drowsy and go to sleep.” When asked why he drugged the appellant’s medication, Miranda replied, “Well, we had been arguing about me not having a job and I wanted her to quit complaining about it.”

Appellant did not testify.

Appellant requested a charge directing the jury to acquit her if they found that she was involuntarily intoxicated and further found that she did not act voluntarily in the commission of the offense because of this intoxication. The trial court refused to give this charge.

In Hanks v. State, 542 S.W.2d 413, this Court reviewed a trial court’s failure to charge on temporary insanity due to involuntary intoxication. This Court stated:

“Aside from the question of temporary insanity resulting from involuntary intoxication as a defense to crime, this evi-
dence was not sufficient to raise the issue of involuntary intoxication. If appellant was aware that a suspected drug had been placed in his drink, as he testified, and in spite of such knowledge he drank the beverage, any intoxication resulting therefrom could not be classified as involuntary. To constitute involuntary intoxication, there must be an absence of an exercise of independent judgment and volition on the part of the accused in taking the intoxicant. See Johnson v. Commonwealth, 135 Va. 524, 115 S.E. 673, and Annot., 30 A.L.R. 761.” [Emphasis in original.]

Other jurisdictions are in accord with this view. State v. Plummer, 117 N.H. 320, 374 A.2d 431 (1977); City of Minneapolis v. Altimus, 306 Minn. 462, 238 N.W.2d 851 (1976); Burrows v. State, 38 Ariz. 99, 297 P. 1029 (1931).

In the present case, there is evidence that the appellant did not know that any intoxicant was included in the preparation she drank. Although she voluntarily drank the preparation, unless she knew it contained the drug her actions were not a volitional consumption of the intoxicant. See, State v. Rice, 379 A.2d 140 (Me.1977). We find the evidence was sufficient to show involuntary consumption of the intoxicant under Hanks.

This conclusion leaves us with two issues. First, does the defense of involuntary intoxication exist in this jurisdiction, and second, did the evidence entered at trial raise this defense and entitle appellant to a defensive charge.

As can be drawn from Hanks v. State, supra, no prior case in this jurisdiction has spoken directly to the issue of involuntary intoxication. Of the two Texas cases cited, only one sheds any light on the issue.

In Colbath v. State, supra, the question presented involved voluntary intoxication. The Court discussed the common law basis for the rule that intoxication is no defense to criminal responsibility, and cited authority setting out two exceptions to this rule. One of these exceptions was involuntary intoxication resulting from “drugs administered by an unskillful physician.” 4 Tex. App. at 78. From this exception the law of involuntary intoxication has evolved. See, City of Minneapolis v. Altimus, supra.

In some jurisdictions the defense of involuntary intoxication is provided for by statute. State v. Palacio, 221 Kan. 394, 559 P.2d 804 (1977); Staples v. State, 74 Wis.2d 13, 245 N.W.2d 679 (1976). No statute in this jurisdiction is directly controlling.

V.T.C.A. Penal Code, Sec. 8.04, provides that voluntary intoxication is no defense to the commission of crime. Section 8.04, supra, does provide that the temporary insanity caused by intoxication can be evidence in mitigation of punishment, and if raised, the court must charge the jury on this law. This statute does not speak to involuntary intoxication.

The common law disfavor with the defense of intoxication is that it would allow a person to avoid criminal responsibility because of his voluntary act in rendering himself of unsound mind. See, Burrows v. State, supra; Colbath v. State, supra; Carter v. State, supra. This consideration does not exist when the intoxication is not self-induced.

V.T.C.A. Penal Code, Sec. 8.01, relieves a person of criminal culpability if as the result of mental disease or defect he “did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of law.” It would be inconsistent to deny this defense to a person who loses his ability to conform his conduct or perceive its culpability because of involuntary intoxication. We find that the defense of involuntary intoxication is well founded in the common law and implicit in our statutory scheme.

We also note that other jurisdictions have recognized this defense without specific statutory guidance. State v. Rice, supra; City of Minneapolis v. Altimus, supra; State v. Mriglot, 15 Wash.App. 446, 550 P.2d 17 (1977); People v. Murray, 247 Cal. App.2d 730, 56 Cal.Rptr. 21 (1967); Easter v. District of Columbia, 209 A.2d 625 (D.C. Ct.App.1965); Burrows v. State, supra. These jurisdictions do differ, however, on the applicable test to determine if the defendant’s mental state was such as to avoid culpability for his acts.

The jurisdictions most recently reviewing the question of involuntary intoxication have held that the test used for insanity is also applicable to involuntary intoxication. City of Minneapolis v. Altimus, supra; State v. Mriglot, supra; People v. Murray, supra. We agree. We perceive of no reason to stray from the test already codified as the level of mental dysfunction necessary to relieve a defendant from the criminal consequences of his acts. See, Sec. 8.01, supra.

We hold that involuntary intoxication is a defense to criminal culpability when it is shown that:

(1) the accused has exercised no independent judgment or volition in taking the intoxicant; and
(2) as a result of his intoxication the accused did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.

Appellant is entitled to a charge on affirmative defenses raised by the evidence. Day v. State, Tex.Cr.App., 532 S.W.2d 302; Thompson v. State, Tex.Cr.App., 521 S.W.2d 621. As noted above, we find the evidence sufficient to raise the issue of whether the intoxicant was administered to the appellant without her knowledge.

Although the evidence of appellant’s state of mind at the time of the offense is meager, it is sufficient to raise the issue for submission to the jury. The victim testified that appellant seemed “drugged,” and the circumstances surrounding her arrest are some evidence of her mental state. This issue, just as the parallel issue of insanity from mental defect or disease, lies in the province of the jury, not only as to the credibility of the witnesses and weight of the evidence, but as to the limits of the defense itself.” Graham v. State, Tex.Cr.App., 566 S.W.2d 941, 952. We find that the appellant was entitled to have the issue of involuntary intoxication submitted to the jury.

Finally we observe that the requested charge submitted by the appellant was not a correct charge on the law as outlined above. This request was sufficient to bring the omission complained of to the trial court’s attention, and is thus sufficient to preserve the error for our review. Stiles v. State, Tex.Cr.App., 520 S.W.2d 894; Art. 36.15, V.A.C.C.P.

We hold that the trial court erred in failing to charge the jury on the affirmative defense of involuntary intoxication.

The judgment is reversed and the cause remanded.

      “1 See Carter v. State, 12 Tex. 500 [1854]; Colbath v. State, 4 Tex.App. 76 (1878); Annot., 30 A.L.R. 761.

      . V.T.C.A. Penal Code, Sec. 8.04(d), defines intoxication as follows:
      “For purposes of this section ‘intoxication’ means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.”


author: DALLY, Judge. CLINTON, Judge,

text:
    Penni STONER and Alex Martinez, Appellant, v. The STATE of Texas, Appellee.
    No. 56406.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 18, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Laird Palmer, Joseph D. Martinec, Austin, for appellant.
    Ronald P. Earle, Dist. Atty. and Charles E. Hardy, Asst. Dist. Atty., Austin, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

DALLY, Judge.

Appellants were jointly indicted, tried, and convicted for theft of property having a value of $200 or more but less than $10,-000. Punishment for each appellant was assessed at imprisonment for two years, probated.

Appellants contend that the indictment is fundamentally defective, that there is a fatal variance between the indictment and the proof, that the evidence is insufficient to sustain their convictions, and that the prosecutor engaged in improper jury argument.

The indictment alleges that appellants, on or about June 11, 1975,

“. . . with the intent to deprive the owner, The State of Texas, of property, namely, 60 pound blue NeKoosa offset Vellum paper, did knowingly and intentionally, without the owner’s effective consent, unlawfully obtain and exercise control over (control over and obtain) such property which had a value of more than two hundred dollars ($200.00) and less than ten thousand dollars ($10,000.00)

Appellants filed no motion to quash the indictment. However, they contend that the indictment is fundamentally defective because it does not allege the quantity of paper stolen, citing Art. 21.09, V.A.C.C.P.

In Rhodes v. State, 560 S.W.2d 665 (Tex. Cr.App. 1978), after a thorough discussion of the cases, this Court held that:

“. . .a defect in the description of property under Art. 21.09, supra, must be raised by a motion to quash, and may not be raised for the first time on appeal, unless the description is so deficient as to be no description at all and to constitute a jurisdictional defect, as was the case in Willis [v. State, 544 S.W.2d 150 (Tex.Cr. App. 1976)].” (Emphasis in original.)

In Willis, a theft indictment was held to be fundamentally defective because it described the property allegedly stolen only as “merchandise.” In Rhodes, on the other hand, it was held that a description of the property as “wall paneling” was sufficient to invoke the jurisdiction of the trial court, and that the indictment was not fundamentally defective. The indictment in the instant case describes the property allegedly stolen with more specificity than did the indictment in Rhodes. This ground of error is overruled.

Appellant Martinez was at the time of the alleged offense the supervisor of the reproduction room, or print shop, of the Texas Senate. The print shop prepares copies of all Senate bills, publishes the Senate Journal, and generally handles the printing needs of the Lieutenant Governor, Senators, and Senate administrative officers. Although the print shop ordinarily handles all of the Senate’s printing, it occasionally contracts out printing jobs during peak periods such as the end of a legislative session. Such contracts are awarded on a lowest bid basis.

In February, 1975, Martinez met appellant Stoner at an Austin nightclub, and they became friends. Stoner was at that time employed by the telephone company, but feared that she was going to lose her job.’ Martinez agreed to help Stoner, who had no experience with regard to paper or printing, establish herself as a printing jobber. This help included instruction in the preparation and submission of bids for Senate print shop contracts. In June, 1975, Stoner began business under the name A.M.P. Graphic Arts (A.M.P.).

In essence, appellants were accused of stealing paper from the State, and then selling it back to the State in the form of completed printing jobs. The following recitation of the facts is based on the testimony of the State’s witnesses, and has been simplified as much as this complicated case allows.

On May 30, 1975, Martinez ordered, and the State subsequently paid for, a large quantity of paper for the Senate print shop from the Lone Star Paper Co. of Austin (Lone Star). Included in this order was approximately $1,200.00 worth of blue sixty pound NeKoosa offset vellum. This paper was not delivered to the print shop, but remained in Lone Star’s warehouse.

On June 9 or 10, 1975, the Senate print shop solicited bids for the printing of 101,-000 newsletters for Senator Betty Andujar. Among other things, the job specifications stated that the newsletters were to be printed on light blue sixty pound offset paper to be supplied by the printer. On June 10, this contract was awarded to A.M.P. on the basis of the low bid of $2,234.00, and a state treasury warrant was subsequently issued to A.M.P. in this amount.

On June 10 or 11, 1975, Roland Castruita, an estimator for the Whitley Co. of Austin (Whitley) and one of the losing bidders for the Andujar newsletter contract, received a telephone call from Martinez. Martinez explained to Castruita that it had been decided that the Andujar newsletters would be printed on paper already owned by the State, and asked how much,Whitley would charge to do the job in that case. Castruita told Martinez that Whitley would print the newsletters on the Senate’s paper for $1,165.00, and Martinez replied that Whitley had the job. Martinez then called Earnest Cook, a salesman at Lone Star, and instructed him to deliver to Whitley a portion of the blue sixty pound NeKoosa offset vellum which had been previously purchased.

At no time during his discussions with Castruita did Martinez tell him that anyone other than the State would be paying for the Andujar newsletters, nor did Martinez ever instruct Cook to bill A.M.P. or Stoner for the paper delivered to Whitley. Moreover, both Castruita and Cook testified that they had never heard of Stoner or A.M.P., that A.M.P. did not have a credit arrangement with their respective employers, and that they would not have cooperated with Martinez had they known that A.M.P., not the State, was to be financially responsible. After the newsletters had been printed and delivered, Martinez called Castruita and told him to bill A.M.P., not the State, for the printing. On July 10, 1975, Whitley received a check for $1,165.00 in payment for the Andujar newsletters. The check was signed by “Penni J. Stoner, A.M.P. Graphic Arts.”

Martinez testified that he had had nothing to do with the solicitation of bids for the Andujar newsletters or in awarding the job to A.M.P., and offered evidence that he was in Dallas on the days in question. He also testified that he did not subsequently give Whitley the job of printing the newsletters, and that he did not instruct Cook to deliver to Whitley paper owned by the State. Martinez testified that he had had an arrangement with Cook whereby paper owned by the State and stored in Lone Star’s warehouse could be sold by Lone Star and the payment credited to the Senate print shop’s account.

In her testimony, Stoner also stated that Martinez had had nothing to do with A.M.P. getting the contract for the Andujar newsletters. Moreover, she testified that she, not Martinez, had called Castruita and arranged for Whitley to print the newsletters as a subcontractor, and that she, not Martinez, had called Cook and ordered that paper be delivered to Whitley. She stated that she did not know that the paper delivered to Whitley belonged to the State, and that she had fully expected to be billed for the paper by Lone Star.

Appellants contend that there is a fatal variance between the indictment and the State’s evidence, since the evidence shows that the property stolen was money, not paper. While it is certainly true that the ultimate objective of appellants was to steal money from the State, the method chosen to achieve this objective was to sell to the State paper which the State already owned. The question to be answered is whether, in the course of carrying out their scheme, appellants stole the paper from the State.

Appellants were indicted under V.T.C.A. Penal Code, Sec. 31.03, as it read prior to its amendment in 1975. Under that section, a person was guilty of theft if, with intent to deprive the owner of property, he obtained or exercised control over the property without the owner’s effective consent. There can be no doubt that Martinez exercised control over the paper in question: he ordered it, he had it stored, and he had it delivered to Whitley for use in the Andujar newsletters. But did Martinez exercise this control without the State’s effective consent, and with the intent of depriving the State of the paper?

As supervisor of the Senate print shop, Martinez had the authority, i. e., the consent of the State, to award A.M.P. the contract to print the Andujar newsletters and to have the newsletters printed on paper owned by the State. But when he ordered Lone Star to deliver the paper to Whitley and Whitley to print the newsletters on that paper, knowing as he did that the contract to print the newsletters specified that the paper was to be supplied by the printer, he exceeded the scope of his authority. The State never authorized Martinez to use State-owned paper for the private gain of himself or others.

If Martinez and Stoner had contrived to use State-owned paper to carry out a printing contract between A.M.P. and some third party, there can be no doubt that such use of the paper would be without the effective consent of the State. The only difference .between this hypothetical situation and what actually occurred is that A.M.P.’s contract was with the State. But the fact that Stoner, acting through A.M.P., intended to sell the paper back to the State does not alter the character of Martinez’s conduct. When Martinez had the paper delivered to Whitley pursuant to his scheme with Stoner, he acted outside the scope of his authority as supervisor of the Senate print shop. Or, expressed in the terms of the theft statute, Martinez acted without the effective consent of the State.

The evidence is also sufficient to prove that appellants intended to deprive the State of the paper. The bid submitted by A.M.P. and accepted by Martinez included the cost of the paper to be used for the newsletters, but in fact Martinez had the newsletters printed on paper the State already owned. The State subsequently paid A.M.P. on the basis of the contract entered into by Martinez, including the cost of the paper. This evidence is sufficient to prove that Martinez and Stoner exercised control over the State’s paper with the intent to restore the paper for payment of compensation to A.M.P. by the State. V.T.C.A. Penal Code, Sec. 31.01(3)(B).

V.T.C.A. Penal Code, Sec. 31.03, is much broader than previous theft statutes. In enacting Sec. 31.03, supra, the legislature intended to consolidate a broad range of theft-related offenses, including embezzlement, receiving and concealing embezzled property, swindling, and conversion by a bailee, into the single offense of theft. V.T.C.A. Penal Code, Sec. 31.02. While under the facts of this case appellants certainly could have been prosecuted for the theft of the money they received pursuant to their scheme, Sec. 31.03, supraj is broad enough to encompass the theft of the paper as well. Under the facts presented the appellants could have been convicted of the theft of either the paper or the money, but not both.

We hold that the evidence is sufficient to sustain the convictions of appellants as parties to the theft of State-owned paper. This ground of error is overruled.

Appellants contend that the State failed to prove that the paper stolen was blue sixty pound NeKoosa offset vellum as alleged in the indictment. They base this contention on their cross-examination of Cook who, when shown one of the Andujar newsletters, testified that the paper resembled NeKoosa offset but that he could not positively state that it was.

It is undisputed that a portion of the paper ordered on May 30 for the Senate print shop was blue sixty pound NeKoosa offset vellum. Cook testified that at Martinez’s direction Lone Star delivered a quantity of this blue sixty pound NeKoosa offset vellum to Whitley. Cook’s testimony is corroborated by a Lone Star delivery receipt which is in evidence. Castruita testified that Whitley printed the Andujar newsletters on the blue sixty pound 'NeKoo-sa offset vellum delivered by Lone Star. We hold that this evidence is sufficient to establish that the paper stolen was, as alleged, blue sixty pound NeKoosa offset vellum.

Finally, appellants contend that the trial court erred in refusing to instruct the jury to disregard improper jury argument by the prosecutor. The prosecutor made the following statement with reference to the written bids for the Andujar newsletter contract:

“. . . I am going to mark this so when you go in the jury room I want each one of you twelve people to look at it carefully: You remember the bids on the Andujar newsletter. This is the bid from the Whitley Company typed in there; there is the bid from the Best Printing Company written in there very clearly in longhand; now here is the bid from A.M.P. Graphic Arts by Penni Stoner, and what do you see on there, folks? The bid was originally $2,334 in Penni Stoner’s handwriting, and then in someone else’s handwriting it was changed to two thousand two hundred—
“MR. PALMER: Your Honor, that is a complete misstatement, outside the record — there is no testimony as to handwriting—
“THE COURT: Come before the Bench.
(A conference was had at the Bench out of the hearing of the reporter.
“MR. PALMER. My objection, Your Honor, is that the District Attorney is arguing outside the record. There is no testimony in the record as to whose handwriting appears on that exhibit, nor is there any testimony of any qualified expert or any other person that one handwriting is different from any other handwriting; therefore, I would ask the Court to instruct the jury to disregard that argument.
“THE COURT: Ladies and gentlemen of the jury, you are to take the evidence from the witness stand and from the exhibits admitted in evidence before you.
“MR. SHEPPARD: That’s right. What I am asking you to do is to look at this bid, look at how Penni Stoner makes her ‘2’ up here and look at the first ‘2’ in there, and then look at the ‘2’ that is marked over the ‘3’ and you will see, I think, from the evidence that it is a different handwriting. You can draw your own conclusions. Reducing that bid by one hundred dollars makes it the lowest bid by six dollars. Who was in a position — what other person would be in a position, that would have a motive to lower that bid one hundred dollars so it would be the lowest bid — only one person, and that’s Alex Martinez.”

In Bowlin v. State, 93 Tex.Cr.R. 452, 248 S.W. 396 (1922), a handwritten letter was an important piece of evidence. In his closing argument, the prosecutor displayed the letter and asked the jury to notice a difference in the handwriting of the signature from the balance of the letter. This Court noted that the bill of exception did not certify as a fact that such a difference existed, but if it did appear, it was legitimate for counsel to call attention to it since the letter was before the jury for their examination.

In the instant case, the written bids were in evidence, and appear in the record. The bid from A.M.P. appears to have been changed from $2,334.00 to $2,234.00 and the “2” in question appears to be different from the other “2”s which appear on the bid. Under the circumstances, calling attention to this difference was in the nature of a summation of, or a reasonable deduction from, the evidence.

In any event, appellants failed to press their objection to the point of procuring an adverse ruling. Mayberry v. State, 532 S.W.2d 80 (Tex.Cr.App. 1976); Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App. 1974). After the trial court instructed the jury to take the evidence from the testimony and exhibits, appellants requested no further relief. Reese v. State, 531 S.W.2d 638 (Tex. Cr.App. 1976); Johnson v. State, 510 S.W.2d 944 (Tex.Cr.App. 1974); Nevarez v. State, 503 S.W.2d 767 (Tex.Cr.App. 1974). The error, if any, was not properly preserved.

The judgment is affirmed.

CLINTON, Judge,

dissenting.

The indictment in this case, its material parts quoted in the opinion of the Court, awkwardly alleges an offense of theft of the described paper. The underlying undisputed facts, however, do not show a theft of paper in any commonly accepted sense and, accordingly, terms of the indictment and the statute from which it is drawn have been stretched and strained into notions that, realistically, are untenable.

The opinion for the Court states, “In essence, appellants were accused of stealing paper from the State, and then selling it back to the State in the form of completed printing jobs.” Not even the State, through its prosecuting attorneys, distilled that essence from either the indictment or the facts.

In his opening statement to the jury panel the chief prosecutor told the jury that the ultimate facts the State would prove were that Martinez ordered Senate paper, already purchased, be supplied to a printing company for its use in doing the job as a subcontractor for Stoner, for which Stoner subsequently billed the State of Texas for both the printing cost and the cost of paper —“and therein lie the charges of this case.” In final argument the assistant prosecuting attorney concluded by telling the jury, “If you believe the State paid twice for that paper, then it is guilty; if you don’t think they did or if you don’t believe we have proved it to you beyond a reasonable doubt, they are not guilty.” In his concluding summation, the chief prosecutor reiterated the theme that Stoner, through her sole proprietorship, used State paper that had been paid for and then charged for the paper on subsequent printing contracts.

The fundamental reason the theory alleged in the indictment is not supported by the facts, but is at variance with them, is that, simply stated, the paper purchased from the distributor moved from that location to the printer and, with the printed material on it, was then delivered to the Senate reproduction room, or printshop, to be used for the purpose ordered, printed and delivered. At all times, from its purchase until delivered to the Senator, the paper was in the care, custody, control and management of Martinez. Indeed, that is precisely what the indictment alleged and the State proved.

The fallacy in the theory of the indictment and the formulation by the Court is that the unique status and capacity of Martinez as supervisor of the reproduction room, or printshop, of the Texas Senate is ignored. in finding that the paper was obtained and controlled “without the owner’s effective consent.” It is true that upon paying for the paper, the State “owned” it, but acquisition, control and disposition of the paper were all at the instance of Martinez acting within the scope of his authority. Indeed, in its brief the State correctly asserts, “The evidence clearly shows that appellant Martinez ordered the paper under his authorization as an agent of the State of Texas” and, further, “Martinez then ordered the paper being stored at Lone Star Paper Company to be delivered to Whitley for the printing of the newsletter.” Thus, in his capacity as agent for the State, Martinez at once obtained and exercised control over the paper and gave effective consent of the State to do what was done with it.

As I see it, the deception that precluded effective consent of a person legally authorized to act for the owner really occurred when Stoner claimed and received payment for the printing job in an amount that included cost of the paper which she, contrary to the specifications for and contract to do the job, had not supplied. It is a case, as the State asserted and argued persistently to the jury, of paying twice for the same paper. The theft was of money, the proceeds of the warrant issued by the State to Stoner for the printing job, in an amount that represented cost of the paper.

Accordingly, for the fatal variance between indictment and proof, I would reverse the judgment of conviction and remand the cause.

      . V.T.C.A. Penal Code, Sec. 31.01(3), reads in pertinent part, as follows:
      “(3) ‘Deprive’ means:
      “(B) to restore the property only upon payment of reward or other compensation . . ”

      . The shorthand rendition of the facts followed his somewhat expanded outline of them as follows:
      “Basically what happened is that . the State of Texas got charged twice for several thousand dollars worth of paper. What happened was that A.M.P. Graphic Arts submitted some bids on some contracts, about six of them, in which A.M.P. Graphics was paid by the State of Texas to both print and supply the paper. However, A.M.P. Graphics was paid for that, for both the printing and the paper. What we later found out happened was that the paper that was supplied to the State and the State paid A.M.P. Graphics for was State paper already; it had already been purchased by the State . . . and paid for by the Senate. . .”