author: GREEN, Commissioner.

text:
    Wilbur Charles COLLINS, Appellant, v. The STATE of Texas, Appellee.
    No. 52961.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1976.
    Certiorari Denied April 4,1977. See 97 S.Ct. 1611.

      Douglas R. Bergen and Charles L. Cantrell, Waco, for appellant.
    Martin D. Eichelberger, Dist. Atty. and Felipe Reyna, Raymond C. Matkin and Lynn W. Malone, Asst. Dist. Attys., Waco, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is an appeal from a conviction for capital murder, wherein the punishment was assessed at death. See V.T.C.A. Penal Code, Sec. 19.03(a)(2) and Article 37.071, V.A.C.C.P. The indictment charged that on or about October 10,1974 appellant while in the course of committing and attempting to commit the offense of robbery intentionally and knowingly caused the death of Billy Abraham by shooting him with a gun.

Appellant initially contends that the trial court improperly limited voir dire examination of a juror by not permitting him to ask the following question of venire member Mrs. Edgar Lee Fortune:

“Could you, regardless of what the evidence showed in any case — and I’m not talking about this case — could you ever believe that regardless of what the evidence showed, that a police officer was telling a willful falsehood from that witness stand?”

The State’s objection that this was an improper question, and that the venireper-son had answered on direct examination that she would judge the police officer’s testimony by the same criterion as any other witness was sustained. The transcription of the voir dire of Mrs. Fortune shows that she had so testified in answer to the State’s questions.

The record reflects that appellant used his first peremptory challenge on Mrs. Fortune.

Appellant relies on our decision in Hernandez v. State, Tex.Cr.App., 508 S.W.2d 853, in support of his contention that the court reversibly erred in refusing him to ask the above question to venireperson Fortune. In Hernandez, the defendant was denied the right to ask the prospective jurors the following question:

“Is there any member of the panel who, regardless of what the evidence showed in any ease, could not believe that a police officer was telling a willful falsehood from the witness stand?”

This Court, in holding the trial court’s refusal to propound this question to the jury panel to be reversible error, stated:

“As in De La Rosa v. State, supra, [Tex.Cr.App., 414 S.W.2d 668] this appellant filed a written motion requesting the court’s permission to ask the question at issue on voir dire. The motion was denied. Appellant then sought additional peremptory challenges, which were denied. He then sought to perfect a bill of exception, while the prospective jurors, were present, showing what their answers would have been. The court refused to allow him to do so. He later informed the court that he had been required to take two objectionable jurors. Finally, the court refused to honor his request that a transcript of the voir dire examination be included with the record on appeal. As in De La Rosa v. State, supra, this appellant has, in effect, been denied an effective opportunity to show harm. See also Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959).”

In the instant case, in which the panel was questioned separately, appellant complains only of the court’s sustaining the objection during the interrogation of veni-reperson Fortune. The entire voir dire of the members of the venire is included in the record, and it reveals that this or a substantially similar question was asked and answered by practically every remaining juror without any objection by the State. In Emanus v. State, Tex.Cr.App., 526 S.W.2d 806, on page 808, we stated:

“Our research has revealed no cases resulting in reversal where the limitation of the voir dire examination complained of pertained to only one juror. In the cases we have found which were reversed for this reason, the trial court has refused the asking of certain questions or otherwise acted with reference to the jury panel as a whole. . . . The fact, conceded during oral argument, that appellant did not exercise all his peremptory challenges, is relevant in this situation and mitigates the harmfulness of any error.” The record in the instant case further

discloses that appellant did not exercise all of his peremptory challenges, and he does not complain on appeal that he was forced to accept any objectionable jurors. After exercising his fifteenth peremptory challenges, he asked for additional challenges “so that we may adequately select a jury in the case.” The court granted him two additional peremptory challenges. Thereafter, he used one of these, but accepted, without objection or question, the twelfth juror without having used his last challenge. See Adami v. State, Tex.Cr.App., 524 S.W.2d 693, 700, and authorities cited.

As to any harm resulting to appellant from any error in refusing to permit the above question to be propounded to the juror Fortune, we quote from Burkett v. State, Tex.Cr.App., 516 S.W.2d 147, as follows:

“[2] What, then, is the test for injury or not when the court denies the asking of a question sought to permit an intelligent exercise of the accused’s peremptory challenges? We know from Livingston v. State, 152 Tex.Cr.R. 302, 214 S.W.2d 119, that injury must be shown, and that merely showing the question sought and that it was denied is not sufficient. Although Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816, did not involve the denial of a question sought expressly for the exercise of a peremptory challenge, we find the test stated there to be appropriate for this situation, in light of the latitude which should be accorded counsel in preparing himself to intelligently exercise his client’s peremptory challenges. In Grizzell v. State, supra, on motion for rehearing, at 821, Judge Morrison, speaking for a unanimous court, gave guidance on the issue before us in the following manner.
“After setting out the questions which the defendant had sought to ask, and then setting out the trial court’s qualification of the bills of exception, which qualifications showed other questions which were asked, it was stated:
“ ‘As we view the questions [sought], they were no more than a restatement of what the court’s qualification shows was actually asked.
“ ‘The trial court must be allowed some discretion in limiting the examination of prospective jurors or some trials would never terminate. We remain convinced that the appellant has failed to show that he has been deprived of any valuable right by the limitation herein assigned as error.’ Grizzell v. State, supra, at 822.”

Reversible error is not presented.

In his fifth ground of error, appellant contends that the evidence is insufficient to sustain a finding that appellant murdered deceased while in the act of committing or attempting to commit robbery.

Considering the evidence in the light most favorable to the verdict, the record reflects the following:

On the morning of October 10,1974, Billy Abraham was the only employee on duty at the 7-11 convenience store situated on the corner of 12th and La Salle Streets in Waco. He at the time had the care, control and custody of the store and its contents. At 10:00 o’clock that morning he sold a bottle of soda water to police officer Nix. At some time between 10:10 and 10:40, his dead body was found in a back room of the store with a number of bullet wounds in the head and neck, and powder burns on the back of the neck. Seven .25 caliber shell casings and four flattened slugs were found on the cement floor under or near the body. Customers entering the store who discovered the body noticed that the cash register drawer was open. The sum of one hundred fifty dollars was missing from the cash register. The evidence exonerated all customers (six) who had entered the store between the time Officer Nix had been waited on by Abraham at 10:00 o’clock and the time of the arrival of police at 10:45 after receiving police radio information concerning the murder and robbery. A few minutes before 10:00 o’clock, appellant was seen about four or five blocks from the store walking toward it. Shortly before deceased’s body was found, appellant was seen by the same witness walking in a direction away from the store.

After the initial investigation by police officers during which they received some information of a man seen in the vicinity of the store, a warrant was obtained for the arrest of appellant, and he was arrested that same afternoon. In a search of his home, a number of .25 caliber shell casings were found, and ballistic tests performed by expert Fred Rhymer of the Texas Department of Public Safety established that these shells had been fired by the same pistol which fired the shots that killed Billy Abraham. A pawn shop dealer testified that he had sold appellant a .25 caliber Titan automatic pistol on August 12, 1974.

A written confession signed by appellant on October 14 was admitted in evidence. In it appellant admitted entering the 7-11 store shortly after 10:00 o’clock on the morning of October 10 “to purchase a soda water.” He said that “at first I was hesitant because this was the same store that I had robbed about two weeks prior to this date. However, on this date I did not see the same green and black Chevy Malibu sitting in front of the 7-Eleven. I thought there would be a different store manager. I decided to go ahead and go in . . . ” In the confession he said that when he noticed “the same manager that I had earlier robbed” the manager pulled a .25 pistol, and in a struggle appellant secured possession of the pistol and shot the manager in the head, and continued to shoot all the remaining shells at him.

At the trial appellant denied that his confession was voluntarily given, or that he had voluntarily waived his constitutional rights of legal counsel and to remain silent. He denied the facts stated in the confession, and testified to an alibi.

We find the evidence to be sufficient to prove that deceased was murdered by appellant in the course of committing or attempting to commit robbery. Appellant in his confession admitted that he shot and killed deceased in deceased’s store with a .25 caliber pistol. He admitted on the stand that he bought a .25 caliber pistol in August, 1974, but testified that prior to this offense he had lost it in a dice game. However, the evidence established that .25 caliber shells were found in his home which were fired from the same pistol which fired the shells found near deceased’s body, thus disproving appellant’s claim in his confession that deceased was shot with his own pistol. The open cash register drawer, and the missing money, taken into consideration with the other evidence, is sufficient evidence to support a finding that the killing was in the course of committing robbery. The defense of alibi was disproved by the State’s evidence. Appellant admitted in his confession and on the witness stand to the commission of a prior robbery at this same 7-11 store two weeks prior to the instant offense.

We find no merit in appellant’s contention of insufficient evidence, and overrule his fifth ground of error.

In his ninth ground appellant contends the court erred in admitting his written confession in evidence over his objection that he was not properly warned before giving same that the confession “can and will” be used against him. He argues that the warning given him “that any statement made by me may be used against me” as shown by the written confession and the testimony of Officer Dale who testified concerning the making of the confession fails to comply with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Art. 38.22, Sec. 1(c)(3), V.A.C.C.P., as amended in 1967 provides, as part of the warning to be given an accused, “(3) . and that any statement he makes may be used in evidence against him at his trial.” Similar language is contained in Art. 15.17, V.A.C.C.P. In Charles v. State, 424 S.W.2d 909, cert. denied 392 U.S. 940, 88 S.Ct. 2319, 20 L.Ed.2d 1401, this Court held that warnings under Articles 15.17 and 38.22, V.A.C. C.P., were as “fully effective” as the Miranda warnings. See Santiago v. State, Tex.Cr.App., 444 S.W.2d 758, p. 761; Sanchez v. State, Tex.Cr.App., 454 S.W.2d 210, p. 214; McCandless v. State, Tex.Cr.App., 425 S.W.2d 636.

In Babcock v. State, Tex.Cr.App., 473 S.W.2d 941, attack was made on a confession that provided “that any statement made by me may be used in evidence against me at my trial.” This Court held that error was not committed in the admission of the confession. See also Hancock v. State, Tex.Cr.App., 462 S.W.2d 36; Knoppa v. State, Tex.Cr.App., 505 S.W.2d 802.

The ninth ground of error is overruled.

In his second ground of error, appellant contends that the death penalty is “unconstitutional per se in that it is viola-tive of the Eighth Amendment protecting a defendant against cruel and unusual punishment and the Fourteenth Amendment protecting the rights of due process of the defendant.”

In his third ground, appellant argues that Article 37.071, V.A.C.C.P., is unconstitutionally vague in violation of Article 1, Section 13, Texas Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. His complaint is directed to the alleged vagueness of Article 37.071(b)(2), V.A.C.C.P., concerning the question of “a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”

Appellant’s contentions made in these two grounds of error have been answered adversely to him in Jurek v. State, Tex.Cr.App., 522 S.W.2d 934; Smith v. State, 540 S.W.2d 693 (1976); White v. State, Tex.Cr.App., 543 S.W.2d 104 (1976); Livingston v. State, Tex.Cr.App., 542 S.W.2d 655 (1976); and in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Gregg v. Georgia, 428 U.S. 227, 96 S.Ct. 2971, 49 L.Ed.2d 904; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913.

The second and third grounds of error are overruled.

In his fourth ground, appellant contends the court reversibly erred in arraigning him in front of the jury after he had filed a motion to be arraigned outside the jury’s presence.

The record reflects that appellant was arraigned in a pretrial proceeding six days prior to the start of the trial, and that he entered a plea of not guilty. On January 27, 1975, when the case was called for trial, appellant filed a motion “to arraign the Defendant out of the presence of the jury before the indictment is read to the jury and before the Defendant’s plea is entered before the jury” in which he prayed “that the Court conduct the arraignment of the Defendant out of the presence of the jury before the trial of his cause and that no question concerning the nature of the plea be posed to the Defendant by the court or the prosecuting attorney in the presence of the jury.” This motion was denied by the court.

After the jury was impaneled, the court in its presence admonished the appellant of the nature of the offense with which he was charged, and the range of punishment, after which the prosecuting attorney read the indictment to the jury and the following proceedings occurred:

“THE COURT: Did you understand the allegations contained in the indictment, Mr. Collins?
“WILBUR CHARLES COLLINS: Yes, I did.
“THE COURT: Do you have any questions?
“WILBUR CHARLES COLLINS: No. “THE COURT: How do you plead? “WILBUR CHARLES COLLINS: Not guilty.
“THE COURT: All right. The court receives your plea of not guilty, and you may be seated. And, gentlemen, you may call your first witness.”

Appellant made no objection to these proceedings. Appellant having been arraigned prior to the jury selection, see Arts. 26.01, 26.02, V.A.C.C.P., the order of proceeding in the trial after the jury was impaneled was for the indictment to be read to the jury and the plea of appellant to be stated. Art. 36.01, V.A.C.C.P.; Castillo v. State, Tex.Cr.App., 530 S.W.2d 952; Wood v. State, Tex.Cr.App., 515 S.W.2d 300; Gonzales v. State, Tex.Cr.App., 500 S.W.2d 154. Hence, the court did not err in refusing to grant appellant’s prayer that “no question concerning the nature of the plea be posed to the defendant by the court or the prosecuting attorney in the presence of the jury.”

Since the court in the pre-trial arraignment had already fixed appellant’s identity and heard his plea, see Art. 26.02, V.A.C. C.P., it was not called upon to give admonishments and instructions on the law to appellant before receiving his plea in the jury’s presence, and the court committed error in doing so. See Lapp v. State, Tex.Cr.App., 519 S.W.2d 443, 448. However, no objection was made to the remarks of the court, and the court subsequently instructed the jury that the indictment was no evidence of guilt, and considering the totality of the circumstances, reversible error is not presented. Wood v. State, supra; Minafee v. State, Tex.Cr.App., 482 S.W.2d 273; Boy-kin v. State, Tex.Cr.App., 487 S.W.2d 128; Lapp v. State, supra.

In his sixth ground of error, appellant complains of the admission in evidence, over objection, of some photographs of deceased’s body which, appellant argues, bore no relevancy to establishing any material facts in the case and were introduced solely for the purpose of inflaming the minds of the jury. These photographs were taken shortly after the commission of the offense while the body was still in the room where the shooting occurred. They depict the physical condition of the room and the wounds inflicted. The photographs were properly authenticated as accurately representing what they purported to depict, and were relevant to the issues in the case. Error is not presented. Greer v. State, Tex.Cr.App., 523 S.W.2d 687; Martin v. State, Tex.Cr.App., 475 S.W.2d 265.

Appellant’s seventh ground of error complains that the trial court erred in admitting into evidence a consent to search form signed by the wife of appellant, due to the fact that the State failed to show the consent to search was signed freely and voluntarily and further that Mrs. Collins could not waive appellant’s rights to be free from unlawful searches. At the time of the search, appellant had been in police custody for about two weeks.

As stated in Smith v. State, Tex.Cr.App., 530 S.W.2d 827, the Supreme Court of the United States recently reaffirmed the constitutional validity of third-party consent searches in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. “. . . These cases at least make

clear that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed authority over or other sufficient relationship to the premises or effects sought to be inspected.”

See Swift v. State, Tex.Cr.App., 509 S.W.2d 586 and authorities cited.

The incarceration of appellant for two weeks did not vitiate appellant’s wife’s authority to consent to a search of their home. She still had a right to equal control and equal use of the premises being searched. Swinney v. State, Tex.Cr.App., 529 S.W.2d 70; Swift v. State, supra.

Answering appellant’s contention that the record fails to show that the consent to search form was freely and voluntarily given by his wife, she testified both at a hearing before the court and in evidence before the jury that when she signed the consent to search form handed to her by Officer Denton, she was fully informed and was aware of her right to give or refuse consent, and that she executed it voluntarily after reading the form and knowing its contents. Officer Denton testified to the same effect. The contention of appellant is without merit.

Appellant next complains that the trial court committed reversible error in failing to grant a mistrial at appellant’s timely motion when Officer Denton, who participated in the search, volunteered hearsay testimony. The testimony which transpired is as follows:

“Q Okay. Now, I believe you said that you went to a particular place in the Defendant’s house after talking to Mr. Hollis, is that correct?
“A That is correct.
“Q Okay. And did you find — what did you find at this particular place?
“A I found by the back door where he had told me I would find the .25 caliber cartridge cases — these four were found, plus the one in the kitchen. He told me that’s where I needed to look for them.
“MR. CANTRELL: Your Honor, we object. He is giving a nonresponsive answer, and it is also hearsay, about what he has been told.
“THE COURT: Sustained.
“MR. CANTRELL: And we ask that you instruct the jury to disregard it. “THE COURT: Disregard the last answer.
“MR. CANTRELL: We also ask for a mistrial, as it' is a prejudicial hearsay statement.
“THE COURT: Motion denied.”

The articles here involved were found by the officers in their search of the premises after securing consent from the appellant’s wife. Harm, if any, as a result of the hearsay answer of witness Denton was cured by the court’s prompt action in sustaining the objection and instructing the jury to disregard the answer. Carey v. State, Tex.Cr.App., 537 S.W.2d 757; Twom-ey v. State, Tex.Cr.App., 520 S.W.2d 784.

In ground of error ten appellant contends that the trial court committed reversible error when it admitted into evidence, over appellant’s objection, extraneous offenses for which the appellant was not on trial and which extraneous offenses were not final convictions.

Appellant, testifying in his own behalf, denied his earlier written confession which stated that on the day in question he entered the 7-11 convenience store and, after a brief struggle, robbed and shot the store attendant. He testified that he did not go to the store on October 10,1974 but instead was downtown “paying a light bill” with his wife. Other defense witnesses gave testimony supporting his alibi. When appellant raised this defensive theory of alibi, he also raised the issue of identity Mitchell v. State, Tex.Cr.App., 503 S.W.2d 562.

The State, in response to the alibi defense, produced eyewitnesses who testified that appellant had robbed two small neighborhood grocery stores. These offenses were in addition to two subsequent robberies at the Capri Theatre and the same 7-11 convenience store that appellant admitted committing.

All these robberies were closely related in time (August 11, August 23, September 7, September 24, October 10), and involved small businesses in Waco. Also, appellant entered each store alone and brandished a pistol. In two of these prior robberies, appellant made the victim lie on the floor, face down, just as he did in the instant case.

Under these facts, proof that appellant had committed the four prior offenses was proper to refute his defensive theory, as well as to show identity and a continuous course of conduct. Vaughn v. State, Tex.Cr.App., 530 S.W.2d 558; McDonald v. State, Tex.Cr.App., 513 S.W.2d 44; Ransom v. State, Tex.Cr.App., 503 S.W.2d 810; Ford v. State, Tex.Cr.App., 484 S.W.2d 727. Cf. Cameron v. State, Tex.Cr.App., 530 S.W.2d 841.

Ground of error eleven complains that the trial court erred in overruling appellant’s objection because of the allegedly prejudicial jury argument made by the State’s attorney by injecting unsworn testimony that bolstered the State’s witness. The complained of argument and objection are as follows:

“MR. MATKIN (State): . . . Now, this confession was taken on the 14th of October. Now, it is certainly voluntary. I don’t think there can be any doubt in your mind. If you don’t believe it was voluntary, you’re calling this man right here a liar, and that police officer right there a liar, and what reasons do they have to lie? There is no reason to lie. Do you think that we’re trying to send an innocent man? No. No, I wouldn’t be up here, and I couldn’t be up here, and I couldn’t look any of you in the eye, unless I believe with all of my heart from the evidence, that this man is guilty.
“MR. CANTRELL (Defense): Your Hon- or, we’re going to object to the prejudicial unsworn testimony of the District Attorney concerning his personal beliefs of the Defendant’s guilt in this case. “THE COURT: I assume you’re basing it on the evidence?
“MR. MATKIN: Yes, Your Honor, I did qualify that, ‘From the evidence.’
“THE COURT: Overruled.
“MR. CANTRELL: Note our exception.”

Appellant’s eleventh ground of error is without merit.

The statement of the prosecuting attorney shows that it was based on his analysis of the evidence, and was a reasonable deduction therefrom. Sikes v. State, Tex.Cr.App., 500 S.W.2d 650; Smith v. State, Tex.Cr.App., 513 S.W.2d 823, p. 831; Hoagland v. State, Tex.Cr.App., 494 S.W.2d 186. Reversible error is not presented.

In ground of error twelve, the appellant contends that the trial court erred in failing to grant appellant’s motion for mistrial when the State’s attorney, in his final argument, referred to appellant as a “cold-blooded murderer.”

In reviewing the evidence in a light most favorable to the verdict, it reveals that appellant, during an armed robbery, led the deceased into a back storage room, made him lie face down on the floor and then shot him six or seven times in the back of the head. Under these circumstances, the statement by the prosecutor was a reasonable deduction from the evidence. Jackson v. State, Tex.Cr.App., 536 S.W.2d 371; Rasberry v. State, Tex.Cr.App., 535 S.W.2d 871.

Further, prior to the objection, counsel for the State had previously referred to the appellant in the same terms, “He’s cool, he’s calculated, cold. A cold-blooded murderer and robber. A capital murderer.” This statement was not objected to. This Court has held that an objection to improper argument must be made at the time of the argument in order to preserve the error for review. Thompson v. State, Tex.Cr.App., 537 S.W.2d 732; Joines v. State, Tex.Cr. App., 482 S.W.2d 205.

Ground of error twelve is overruled.

In ground of error thirteen, appellant contends that the trial court erred in allowing the State’s attorney, during the punishment stage of the trial, to ask the State's psychiatrist whether there was a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society in the future, because the doctor’s answer that appellant would be a continuing threat invaded the province of the jury.

This Court in Livingston v. State, 542 S.W.2d 655 (No. 52,139, 1976) held that this type testimony was pertinent at the punishment stage of the trial to the so-called second special issue under Art. 37.071, V.A. C.C.P.: “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society . . ” See also Gholson v. State, Tex.Cr.App., 542 S.W.2d 395 (1976).

Ground of error thirteen is overruled.

In the fourteenth ground of error, appellant complains that the trial court erred in failing to grant appellant’s two motions for mistrial when the State’s attorney injected unsworn testimony that attempted to bolster the State’s witness Doctor James Grigson.

The two complained of statements are as follows:

“MR. MATKIN: . . . Now, they tried to tear down Dr. Grigson. They tried to run him down. All they could. The reason we called Dr. Grigson, Dr. Grigson is the foremost criminal psychiatrist—
“MR. BERGEN: Oh, Your Honor, we would object to that as being outside the record. There is no evidence—
“THE COURT: Sustain the objection.
“MR. BERGEN: —that Dr. Grigson — in my opinion, he’s not.
“THE COURT: I sustain the objection, Mr. Bergen.
“MR. BERGEN: Thank you.
“MR. SELLERS: Your Honor, we object to counsel testifying here about his opinion.
“THE COURT: Yes. I don’t want any sidebar remarks. I have done sustained your objection.
“MR. SELLERS: Will you instruct the jury to disregard his remark.
“THE COURT: Any remarks made other than the objections, you will disregard them, ladies and gentlemen.
“MR. BERGEN: I ask for a mistrial, Your Honor, at this time.
“MR. MATKIN: Dr. Grigson said that he had testified — said he had examined some 7,000 people charged with crimes, and I believe he said, in the last 18 months, some 200 murders — or I’m not sure about the time, but I know he examined a lot of people. He has been called upon to testify in this courtroom before. He has testified for the State before, and I have heard him testify for the Defendant before.
“MR. CANTRELL: Your Honor, we’re going to object to counsel testifying outside the record.
“THE COURT: Yes. I sustain the objection.
“MR. CANTRELL: Would you instruct counsel to abide by your ruling.
“THE COURT: Confine your remarks to the record.
“MR. CANTRELL: Thank you. And would you instruct the jury to disregard that.
“THE COURT: Disregard the last statement.
“MR. CANTRELL: We also move for a mistrial.
“THE COURT: Denied.”

Prior to this argument, defense counsel had told the jury:

“Dr. Grigson said that this year — or within the past year he has done 200 criminal examinations, and in the past, several thousand. And you have got to think, ‘Wow, that guy knows what he’s talking about.’ But, you know, it was a miss on our part not to ask him who these examinations were for; the Defense or the State. And I am kicking myself still. And, of course, the District Attorney didn’t ask him. But 200 in the last year . there is only 365 days in a year. The man says he has a private practice. I don’t know what days . . . maybe Sundays and Saturdays he goes up there to his office. But he is an excellent witness.”

The remarks of the State were invited by and in reply to argument of the defense counsel. The statement “I have heard him testify for the Defendant before” should not have been added; however, in view of the circumstances shown, harm, if any, was removed by the prompt action of the court in sustaining the objection and instructing the jury to disregard. Reversible error is not shown. Pearce v. State, Tex.Cr.App., 513 S.W.2d 539. Elam v. State, Tex.Cr. App., 518 S.W.2d 367.

Appellant’s fifteenth ground of error reads:

“The court abused its discretion over appellant’s objection and after hearing evidence during a Jackson vs. Denno hearing the confession of appellant and finding that said confession was voluntarily and freely given.”

The only witnesses to testify at the hearing to determine the admissibility of the confession were Officer Gary Dale, to whom the confession was made, and appellant. According to Dale’s testimony, after he arrested appellant he took him to the city hall, where Justice of the Peace John Cabaniss administered the warning provided in Art. 15.17, V.A.C.C.P. Judge Caban-iss’ certificate reflecting the proceedings before him was admitted in evidence at the hearing, and is a part of the record. Dale later gave appellant the Miranda warning, reading it to him from his police card, and explaining to appellant his rights of counsel and silence as provided in said warning. This warning is also shown in the transcription of the testimony. Dale testified that he discussed with appellant the instant offense and other offenses with which appellant was charged. No force or violence of any kind was used, and no threats or promises were made appellant. On the fourth day following the arrest, after Dale had again advised appellant of his constitutional and statutory rights of counsel and silence, and without the use of any force, compulsion, threats or promises, appellant agreed to confess to the killing of deceased Abraham. At this time, in the interrogation room of the city jail, appellant voluntarily and freely related the events as stated in the written confession and Dale typed the statement as appellant talked. After it was typed, including the Miranda type warning in the commencing paragraph, Dale handed it to appellant, who testified he could read, and later Dale read it over to appellant, who made and initialled a few corrections before signing it.

Appellant testified, denying that his confession was freely and voluntarily given. He admitted being given the warning by Judge Cabaniss, but stated that Dale had not advised him of his rights, and that his request to Dale to see a lawyer was refused. As stated in his brief, “Appellant testified to being hit, kicked, dragged out of the car and stomped by Detective Dale prior to giving his confession.” He said that “I signed it for one thing, that I didn’t want my family involved, like I had already been threatened. I was tired of being beat on.”

Appellant’s testimony reflected that all of the abuse, threats, physical violence and other alleged misconduct leading to the giving of his confession was by Officer Dale, all of which was expressly denied by the officer. Compare with Farr v. State, Tex.Cr.App., 519 S.W.2d 876; Sherman v. State, Tex.Cr.App., 532 S.W.2d 634.

The conflicting testimony of Officer Dale and appellant created fact issues for the court to pass on, it being the sole judge at the hearing of the credibility of the witnesses and the weight to be given their testimony. In his written fact findings, the court found that the appellant, after having been thoroughly warned of his constitutional and statutory rights, by a magistrate and by Officer Dale, voluntarily and freely waived such rights, and voluntarily, knowingly and freely executed the confession without the use of any force, coercion, persuasion or promises.

We find that the evidence supports the findings of the trial court, and that the court did not err in overruling appellant’s motion to quash the confession and in admitting it in evidence. See Mann v. State, Tex.Cr.App., 525 S.W.2d 174; Brantley v. State, Tex.Cr.App., 522 S.W.2d 519; Moore v. State, Tex.Cr.App., 542 S.W.2d 664 (1976).

Appellant next contends that the court erred in refusing to grant a new trial because of a newly discovered witness who would support his defense of alibi.

The hearing on the appellant’s amended motion for a new trial reflects that appellant knew of the existence of this witness prior to and at the time of the trial, but did not know where to locate her. Although appellant filed a motion for continuance, his inability to secure this witness was not urged as a ground therefor, and he did not seek any delay in the trial to obtain the witness’ presence. He did not cause a subpoena to issue for the witness. He did not check the records of any major public utility other than the telephone company. The testimony of the witness would have been cumulative of other alibi testimony.

A motion for a new trial based on newly discovered evidence is addressed to the sound discretion of the court, and his ruling thereon should not be disturbed in the absence of a showing of a clear abuse of discretion. Williams v. State, Tex.Cr.App., 504 S.W.2d 477; Hill v. State, Tex.Cr.App., 480 S.W.2d 670. Appellant must show that the evidence was in fact newly discovered, that it was material, that the failure to discover it sooner or locate the witness was not due to a lack of diligence, that the new evidence is probably true, and a different result would probably be reached if the new evidence is introduced at a second trial. Williams v. State, supra; Peak v. State, Tex.Cr.App., 522 S.W.2d 907. A failure by appellant to establish any of the essential requirements would warrant the trial court in refusing to grant a new trial. See Myers v. State, Tex.Cr.App., 527 S.W.2d 307; Ayala v. State, Tex.Cr.App., 511 S.W.2d 284. Abuse of discretion is not reflected.

The judgment is affirmed.

Opinion approved by the Court.

      . Article 19.03 Capital Murder
      “(a) A person commits an offense if he commits murder as defined under Section 19.-02(a)(1) of this code and:
      * * * * * ⅜
      “(2) the person intentionally commits the murder in the course of committing or attempting to commit . . . robbery . .;
      “(b) An offense under this section is a capital felony.”

      . Appellant’s objection of hearsay was sustained concerning what was told police.

      . He admitted having purchased the .25 caliber pistol, although he testified he had lost it in a dice game previous to this robbery. He admitted the previous robbery at this same 7-11 store as stated in his confession, as well as other recent robberies he had committed in the same neighborhood.

      . This court has consistently condemned the practice of arraigning the defendant in the presence of the jury, and we again caution trial courts of the risk of doing so. See Art. 28.01, V.A.C.C.P.; Wood v. State, Tex.Cr.App., 515 S.W.2d 300; Boykin v. State, supra; Stewart v. State, Tex.Cr.App., 473 S.W.2d 495; Minafee v. State, supra.

      . Since the evidence before the jury also raised fact issues as to the voluntariness of the confession, the jury was instructed not to consider it unless it was found to have been voluntarily given beyond a reasonable doubt. Proper instructions as to voluntariness were given in the court’s charge.


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    John Lee TARDIFF, Appellant, v. The STATE of Texas, Appellee.
    No. 53557.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1977.

      John E. Terrill, Stephenville, for appellant.
    Bob Glasgow, Dist. Atty., William L. Martin, Jr., Asst. Dist. Atty., Stephenville, Jim D. Yollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from an order revoking probation.

On March 6, 1975, appellant was convicted of possession of more than four ounces of marihuana and was assessed a sentence of ten years in the Texas Department of Corrections plus a fine of twenty-five hundred ($2500) dollars. Imposition of the jail sentence was suspended and appellant was ordered to pay the fine and was placed on probation for a period of ten years.

Condition “a” of appellant’s probation was that he commit no offense against the laws of this State or of any other State or of the United States.

On February 16, 1976, the State filed a motion to revoke appellant’s probation alleging that he had committed an offense, namely, possession of marijuana in an amount less than four ounces. After a hearing on the motion to revoke probation, the trial court found that appellant had violated condition “a” of his probation by committing the offense of possession of marihuana. The court revoked appellant’s probation and sentenced him to ten years in the Texas Department of Corrections.

In his first ground of error appellant contends that the trial court erred in admitting into evidence at the revocation hearing the marihuana which was seized from appellant’s person because it was the fruit of an unreasonable search and seizure.

The record reflects that the appellant was seated in the front passenger seat of a car driven by Kelly Hutchinson. The vehicle was stopped by troopers of the Texas Department of Public Safety who were conducting a routine check of equipment and drivers’ licenses. The officers stated that they were stopping every ear on the highway two miles north of Childress on U.S. Highway 83. Trooper Harpole testified that he approached the Hutchinson vehicle and requested identification from the driver. He said that he checked Hutchinson’s license and then handed it back to him. He stated that when he handed it back a passenger lying down in the back seat sat up and began asking Harpole questions about a man named Vince Taylor. Harpole testified that on the previous night he monitored a police radio broadcast out of Padu-cah that Cottle County Sheriff’s officers were looking for a man named Vince Taylor. He said that when the passenger began asking the questions he became a bit suspicious and observed that the passenger was weaving back and forth in the seat and appeared to be under the influence of drugs so he asked him to step out of the ear. He stated that when the door was opened he detected the odor of marihuana emanating from the passenger. Harpole stated that he had smelled both unburned and burning marihuana on many occasions in his training and on duty. He said that he took the passenger whom he later determined to be Vince Taylor to the rear of the vehicle and requested his partner, Trooper Ellis, to remove the driver and appellant from the car.

Ellis testified that he also smelled the odor of marihuana coming from the car and its occupants when he removed them from the vehicle. He said that he noticed a bulge or knot in appellant’s trousers which he thought to be a weapon and he reported this fact to Harpole. Harpole then unbuttoned appellant’s trousers, pulled them down, pulled his underwear down partially and saw a plastic bag containing a green leafy substance hidden in appellant’s crotch. Harpole said that as he reached over to pull the bag out appellant put both hands on the officer’s pistol and they began struggling and fell off the shoulder of the road into the ditch. Ellis stated that he went to Harpole’s assistance, but then pulled his pistol to guard appellant’s companions. Both officers stated that appellant then broke free and ran down the ditch and was finally subdued by them.

Placing primary reliance on Murphy v. State, 378 S.W.2d 73 (Tex.Cr.App.1964), appellant contends that the officer exceeded his authority in conducting a search of the passengers and the car because his justification for stopping the car ceased after he concluded the check of Hutchinson’s driver’s license. In Murphy, the accused was a passenger in a ear which the officer stopped because of a traffic violation. The officer asked her a question (which was not specified) and when she did not respond he asked her to get out of the car. When she did not get out he reached in and physically removed her from the vehicle. The State argued that the officer was justified because he had formed the opinion that the defendant was drunk. However, this Court reversed the case because under the facts and circumstances the officer could not have formed his opinion until after he had pulled her from the car. The arrest and search were held to be unlawful.

Appellant concedes that the officer was justified in his initial stop of the car, for his authority for this act is without question. Art. 6687b, Sec. 13, Vernon’s Ann.C.S. However, appellant seems to think that as soon as the officer hands the license back to the driver a veil falls to block out his view of any activity in the automobile. We cannot agree. Any articu-lable facts and circumstances which come into the officer’s knowledge during the license check, or, for that matter, at any other time, may justify further investigation. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972).

Furthermore, appellant, as a passenger in the detained vehicle, cannot claim immunity from investigation. Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974); Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973). The instant case is more closely akin to Wood, supra, and Leonard, supra, than to Murphy v. State, supra. In Leonard, the defendant’s car was stopped for a routine license check and the driver got out of the car and approached the officer. The officer detected “an odor from his clothing . marihuana smell.” He then approached the vehicle to ask the passenger for his identification whereupon he detected the “real strong odor of marihuana.” The subsequent search was upheld.

In Wood, the accused was a passenger in a car driven by Glen Tores. An officer stopped the car because it had run a stop light and as he was discussing the traffic violation with the driver, Tores, he “observed by the light of (his) flashlight that the appellant appeared to be having difficulty keeping his eyes open and (he) formed the opinion that the appellant was under the influence of alcohol or drugs.” When Wood could produce no identification, Tores quickly interjected that Wood had lost his driver’s license the day before. Wood was asked to get out of the car and as he did the officer noticed that he was still acting as if under the influence of intoxicants and that he was watching the officer’s holstered pistol. The officer became somewhat apprehensive about his own safety due to Wood’s appearance. We upheld the officer’s subsequent pat down search of Wood and search of the area in the car where he had been seated stating that “an occupant of an automobile is just as subject to a reasonable stop and to a reasonable frisk as is a pedestrian.” Wood, supra, at 306; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

In the instant case, Trooper Harpole became somewhat suspicious when the passenger lying down in the back seat of the car sat up and began asking questions about Vince Taylor, whose name the officer had heard over his police radio. The passenger also weaved back and forth as if under the influence of drugs. The officer was justified in asking him to step out of the car for further investigation. At this time he detected the odor of marihuana. This gave even more justification for investigation and the officers were justified in requesting the other occupants of the car to step out. More odor of marihuana was detected along with the bulge or knot in the crotch of appellant’s trousers, which Trooper Ellis thought to be a weapon. The foregoing “articulable facts and circumstances” justified the officer’s subsequent actions in searching appellant. Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976).

Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the original order placing him on probation in 1975 was void because he was sentenced to ten years in prison and fined $2500, which appellant contends is a sentence in excess of ten years. Reliance is had upon Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.1975). That portion of Balli, supra, which states that a fine plus a ten-year sentence is “in excess of ten years” was overruled by our subsequent decision in Chudleigh v. State, 540 S.W.2d 314 (Tex.Cr.App.1976).

Appellant’s second ground of error is overruled.

In his third ground of error, appellant contends that the trial court erred in admitting into evidence the marihuana seized from his person because the State failed to prove a proper chain of custody. The State painstakingly introduced the testimony of each officer and agent of the Department of Public Safety who handled the marihuana in question. Each man, from Harpole on down, identified the exhibit and verified his marks on the packet. There is nothing in the record to suggest any tampering with or possible confusion about the exhibit. Howery v. State, 528 S.W.2d 230 (Tex.Cr.App.1975). Furthermore, appellant’s objection went to the weight rather than the admissibility. Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976).

Appellant’s third ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: CORNELIUS, Commissioner.

text:
    Jimmy Tom LEACH, Appellant, v. The STATE of Texas, Appellee.
    No. 52847.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.
    Rehearing Denied Feb. 9, 1977.

      Charles E. Perry, on appeal only, Wichita Falls, for appellant.
    Timothy D. Eyssen, Dist. Atty., and Roger E. Towery, Asst. Dist. Atty., Wichita Falls, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

CORNELIUS, Commissioner.

The conviction was for delivery of LSD, a controlled substance. Punishment was set at eight years’ confinement. The sufficiency of the evidence is not challenged.

Two grounds of error are assigned. The first asserts that the court erred in refusing appellant’s motion for continuance which sought a postponement of the trial so that appellant’s chemist could make a chemical analysis of the alleged contraband.

Appellant was indicted on May 7, 1975. His first motion for a continuance on June 23, 1975, was granted due to the illness of his counsel. On September 16,1975, in response to a motion for discovery, the court ordered the State to deliver the contraband to appellant for inspection and analysis. The material was made available to appellant’s counsel on September 18, 1975. On September 29, 1975, the day the trial was to begin, appellant made his second motion for continuance alleging that his chemist, Dr. Jessie Rogers, had not been able to complete an analysis of the substance and needed approximately seven more days to do so. The motion was denied and the case proceeded to trial. The State’s chemist testified that the substance delivered by appellant was LSD. Appellant contends he should have been granted a continuance so that he could have the benefit of his chemist’s analysis to show that the substance was not LSD. He moved for a new trial on the basis of the denial of his motion, but there was no affidavit attached thereto or any evidence offered in support thereof which tended to show what Dr. Rogers’ testimony would have been had the continuance been granted. This Court is not authorized to reverse a conviction for failure to grant a continuance unless the record shows that the evidence sought to be secured by the delay was material to the case and that appellant was prejudiced by the inability to produce it. Robinson v. State, 454 S.W.2d 747 (Tex.Cr.App.1970); Parkhill v. State, 156 Tex.Cr.R. 580, 244 S.W.2d 827 (1951); Sands v. State, 131 Tex.Cr.R. 177, 97 S.W.2d 190 (1936); 13 Tex.Jur.2d, Continuance, Sec. 140, p. 82, et seq. For that reason it is required that when complaint is made of the denial of a motion for a continuance to secure evidence, an affidavit or other evidence be presented on the motion for new trial showing the nature and materiality of the missing evidence. McCloud v. State, 494 S.W.2d 888 (Tex.Cr.App.1973); Palasota v. State, 460 S.W.2d 137 (Tex.Cr.App.1970). In this case, Dr. Rogers represented that his analysis could be completed within seven days from September 29. The motion for new trial was heard on October 24. Presumably by then, Dr. Rogers had ample time to complete the analysis, and if the results of his analysis were different from those of the State’s chemist it was incumbent upon appellant to produce an affidavit or other evidence to that effect so this Court could judge whether the case had been prejudiced by the inability to produce such evidence at the trial. In the absence of such a showing we cannot determine if the denial of the motion for continuance constituted reversible error. See Sprueill v. State, 468 S.W.2d 461 (Tex.Cr.App.1971); Collins v. State, 170 Tex.Cr.R. 285, 340 S.W.2d 38 (1960).

The second ground of error contends that the trial court should have granted a mistrial when the prosecutor asked appellant why he did not ask for a lie detector test. The appellant had previously testified that he would be willing to take such a test. During examination by his own counsel appellant testified:

“Q Now, are you telling this jury, as the gospel truth, that you never had that money in your hands at any time out there?
A Yes, sir, I sure am. I will take a lie detector test on it, or whatever. That’s all I can do against the State.
MR. TOWERY: Objection, Your Honor. Counsel knows that a polygraph examination is not admissible in front of the jury, either for the State or for the Defendant.
THE COURT: Sustain objection.
The jury is instructed not to consider it.”

On cross-examination by the State’s counsel, the following occurred:

“Q Since you brought the subject up, why didn’t you ask for a polygraph examination?
MR. ANDERSON: Well now, Your Honor—
WITNESS: For one thing—
MR. ANDERSON: Wait just a minute.
Your Honor, we ask the Court to instruct the jury not to consider that. He just objected to the nonre-sponsive remark of the witness and said it wasn’t admissible.
THE COURT: Objection sustained. The jury is instructed not to consider it.
MR. ANDERSON: Now Your Hon- or, we feel that it is so prejudicial that the instruction is not sufficient, and we ask the Court to declare a mistrial.
THE COURT: Motion for a mistrial overruled.
MR. ANDERSON: Note our exception.”

It is, of course, improper to question the accused as to whether he took or refused to take a lie detector test. Nichols v. State, 378 S.W.2d 335 (Tex.Cr.App.1964). But it has been held that when- the accused voluntarily testifies that he offered to take such a test the State may show that he was offered the test but declined to take it. Rodriguez v. State, 170 Tex.Cr.R. 295, 340 S.W.2d 61 (1960). It is also held that evidence that the accused declined to take a polygraph test is waived in the absence of an objection. See Cook v. State, 388 S.W.2d 707 (Tex.Cr.App.1965). Appellant recognizes the ruling of Rodriguez, but seeks to distinguish his case from it because in Rodriguez the accused’s counsel elicited the evidence, whereas in this case the appellant volunteered it himself, presumably without knowledge of its harmful effect, and further because here the State’s counsel continued to pursue the matter after the trial court had ruled the evidence inadmissible. We understand the distinction but are nevertheless convinced that the occurrence, under the circumstances here, does not call for a reversal. The appellant volunteered that he would be willing to take a lie detector test. His motive obviously was to indicate that he had not been given an opportunity to take such a test, inferring that had he been given the opportunity to do so his innocence would have thus been established. Although the prosecutor should not have pursued the matter after the court ruled it inadmissible, we cannot perceive that appellant was prejudiced in view of the wording of the question and the court’s action in preventing an answer and instructing the jury not to consider the question. Under the circumstances, the prejudice, if any, would appear to be against the State, as the impression was probably left on the jury that appellant wanted a polygraph test and would have taken it had he been given the opportunity. We find no reversible error. The judgment of the trial court is affirmed.

Opinion Approved by the Court.


author: ROBERTS, Judge.

text:
    Tommy SIMMONS, Appellant, v. The STATE of Texas, Appellee.
    No. 51387.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1977.
    Rehearing Denied Feb. 16, 1977.
    Robert H. Spicer, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Federico G. Rodriguez, C. Michael Schill and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery, habitual. Trial was before a jury on a plea of not guilty, and the jury found appellant guilty. It also found that he had been twice previously convicted of felonies as charged in the indictment; the court then assessed his punishment at life. The offense occurred on April 30, 1974 and trial commenced on November 13, 1974.

Appellant’s counsel timely filed his appellate brief on November 7, 1975. Appellant also filed a pro se brief in the trial court but it was five days late. In view of the relative qualities of the briefs and the possibility that appellant awaited his lawyer’s brief before submitting his own, we will consider many of the appellant’s grounds of error in the interests of justice. The State’s brief was filed in a timely manner.

Briefly stated, the evidence showed that appellant and a companion, posing as police officers looking for stolen merchandise, entered complainant William Cooper’s duplex apartment on the night of April 30, 1974. After being frisked for weapons, Cooper was held at gunpoint while appellant removed a stereo, television set, and other items from the apartment.- Police were summoned after the robbers left.

Prior to trial, the State filed a motion in limine to prevent the appellant from interrogating State’s witness Cooper about any arrests he might have had. During appellant’s cross-examination of Cooper, the complaining witness, the following occurred:

“MR. DEWEES [Defense Counsel]: May I approach the bench, Your Honor?
“THE COURT: Surely.
(At this time, there was an off-the-record conference at the bench with counsel of both sides present.)
“THE COURT: Will the Jury please step outside.
(The Jury left the courtroom, and the proceedings continued out of the presence of the Jury:)
“THE COURT: What are you planning on doing now?
“MR. DEWEES: For the record, I want to bring out the witness’s arrest record and question him about whether or not—
“THE COURT: I’ll not even permit you to make a bill on that. Let the record so reflect. And you know that that is not a part of the law, Mr. DeW-ees. You have been practicing for many years. You’ve been Assistant District Attorney, and you know that the only way you can impeach a witness is by conviction for a felony, or for a misdemeanor involving moral turpitude. Now you can ask him if he has ever been convicted of a felony, and if he has ever been convicted of a misdemeanor involving moral turpitude. Do you want to ask him that, for the record?
“MR. DEWEES: OK, I’ll ask him that for the record, sure. I know what the answer is.
“Q Have you ever been convicted of a felony or a misdemeanor involving moral turpitude?
“A No, sir.
“THE COURT: . . . Bring the jury back (to bailiff).”

Appellant assigns as error the court’s refusal to permit him to cross-examine the complainant on prior arrests for the purpose of showing bias towards the prosecutor’s office on the part of the witness. At a pre-trial hearing, it developed that Cooper had three arrests — for possession of marihuana, unlawfully carrying a weapon, and burglary — and that charges in all three cases had been dismissed. It also was shown that Cooper went into hiding, delaying the start of the trial, allegedly because of threats made on his life.

In Evans and Meyer v. State, 519 S.W.2d 868 (Tex.Cr.App.1975), murder convictions were overturned because the defendants were prevented from showing the jury that the State’s main witness had a sodomy indictment pending against him. A murder conviction was also reversed in Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App.1973) because the defendant was prevented from showing the jury that the State’s main witness may have been enjoying a promise of leniency or immunity on his indictment as a principal in the subject murder. And in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the refusal to allow the defendant to show that the State’s main witness was at that time on juvenile probation for burglary was held to require reversal on constitutional grounds. See also Kissinger v. State, 126 Tex.Cr.R. 182, 70 S.W.2d 740 (1934) and Mutscher v. State, 514 S.W.2d 905, 920 (Tex.Cr.App.1974). These eases underscore the well-established rule (and exception to Art. 38.29, V.A.C. C.P.) that great latitude is allowed the accused in showing any fact, including pending charges, which would tend to establish ill feeling, bias, motive, and animus on the part of any witness testifying against him.

The preceding cases involved possible motives for fabrication due to charges pending against the State’s witnesses (or probation, as in the Davis case), whereas such charges appear to have been dismissed in this case. The distinction is not persuasive, however, because of the possibility that the charges against complainant could have been refiled. In fact, the witness’ return to the jurisdiction and testimony against the appellant could have been the quid pro quo offered by the State for dismissal of the pending charges, and exploration of this possibility should have been permitted in a bill of exception. Nor does the fact that the witnesses in the preceding cases were possible suspects in the cases on trial distinguish them from the case at bar, since those facts were known by the juries trying the respective defendants in the cited cases. The denial of the right of effective cross-examination in this case is “constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. at 1111. Combined with the other facts, the trial court’s refusal to let the appellant develop his bill constituted error.

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


author: ONION, Presiding Judge. ODOM, Judge,

text:
    George HURD, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 53869.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1977.

      J. R. Musslewhite, Houston, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for burglary of a habitation. See V.T.C.A., Penal Code, § 30.02. The punishment assessed by the court was five (5) years’ confinement in the Department of Corrections.

Appellant’s court-appointed counsel on appeal has filed a brief in which he concludes that the appeal is frivolous and wholly without merit. Aware of his duties under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), counsel has served a copy of his brief upon the appellant and advised him of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed, and the State has filed no brief.

While counsel’s brief does not advance any arguable grounds of error, it does contain a professional evaluation of the record demonstrating just why it is not feasible to advance such contentions. In Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974), we held that such a professional evaluation was sufficient to meet the requirements of Anders v. California, supra.

An examination of the record discloses that the appeal is wholly frivolous and without merit. The record discloses that the second count and an enhancement paragraph were dismissed prior to appellant’s guilty plea before the court. The appellant was then properly admonished in accordance with Article 26.13, Vernon’s Ann.C.C.P. Appellant made a judicial confession as to the offense charged in the first count of the indictment and stipulated other evidence, all sufficient to support the judgment.

The judgment should be affirmed.

The State has filed no brief and does not challenge the right of the appellant to pursue this appeal. Except for the .dissent’s insistence that the appeal be dismissed rather than affirmed, there exists no necessity for further discussion. The dissent would urge that the appellant had waived his right of appeal and that he should not now be accorded an appeal.

The record reflects that March 30, 1976 the appellant was sentenced and he waived notice of appeal orally and in writing. On April 9,1976 he filed a pro se written notice of appeal. On the same date the court added an addendum to the sentence as follows:

“On this the 9th day of April, A.D. 1976, the Defendant by and through a letter to the Court excepted to the ruling and judgment of the Court herein and gives notice of appeal to the Court of Criminal Appeals of the State of Texas, Austin, Texas. And inasmuch as notice of appeal is given herein, execution of the sentence is deferred to await the judgment and order of our Court of Criminal [Appeals] in this behalf.”

A docket sheet entry on the same date is of similar import. Subsequently the appellant filed a pauper’s oath, and counsel other than trial counsel was appointed by the trial court for the purpose of appeal. The appellate record was then prepared and approved by the trial court. It was then forwarded to this court.

It is clear that the trial judge permitted the withdrawal of the waiver of notice of appeal and consented to this appeal. See and cf. Reed v. State, 516 S.W.2d 680 (Tex.Cr.App.1974); Abron v. State, 531 S.W.2d 643, 645 (Tex.Cr.App.1976); Ex parte Dickey, 543 S.W.2d 99 (Tex.Cr.App. 1976). The trial court here did exactly what most fair-minded trial courts would do under the same circumstances.

For the reasons stated, the judgment is affirmed.

ODOM, Judge,

dissenting.

I dissent to the refusal of the Court to dismiss this appeal. With the crowded docket that this Court labors under, I am surprised at the lengths this Court is willing to reach in considering an appeal of a case in which the convicted defendant made a complete, absolute, unequivocal, voluntary, knowing and intelligent waiver of his right to appeal. Furthermore, his decision to waive his right to appeal this case was clearly well-founded, as the majority have demonstrated in holding that the appeal is wholly frivolous and without merit.

The majority, in order to conclude that dismissal is not proper, rely on “an addendum to the sentence”, which is not part of the sentence since it does not appear to have been pronounced as part thereof in the presence of the defendant (Casias v. State, Tex.Cr.App., 503 S.W.2d 262), and on a docket entry, neither of which reflects that the trial court was aware of the fact that the right to appeal and ten days time for filing such notice had been waived. Certainly the ministerial act of the trial court upon receipt of a facially timely notice of appeal cannot constitute an affirmative granting of permission to withdraw such waivers when there never was, from what appears in this record, even a request to make such withdrawal. The effect of the majority’s holding is particularly burdensome on the court’s staff in districts with a heavy caseload, such as Harris County, where the waiver may be easily overlooked when the ministerial acts, here held to void the waiver, are executed.

On March 30, 1976, appellant waived trial by jury and entered a plea of guilty before the court to the offense of burglary of a habitation. The court accepted appellant’s plea, found him guilty, and assessed his punishment at imprisonment for five (5) years. Appellant waived the time in which to file a motion for new trial and a motion in arrest of judgment and was sentenced the same date. After sentencing appellant executed a written waiver of his right to appeal. The waiver stated that appellant understood that he had a right to appeal his conviction to the Court of Criminal Appeals, the right to be represented on appeal by an attorney of his own choice or, if he was too poor to pay for such an attorney or the record on appeal, the court would, without expense to him, provide him with an attorney and a proper record for such an appeal. The waiver also stated that appellant understood that he had ten days after sentencing to give notice of appeal to this Court. In the waiver appellant further stated:

“With full understanding of the above (the rights which appellant said he understood), I hereby, in open court, after sentence has been imposed, voluntarily state that I do not desire to appeal in this cause and expressly waive any appeal in this case and waive my ten days in which to give notice of appeal, and I hereby accept as final the judgment of conviction and the sentence herein and request that I be allowed to commence serving the same without further delay.”

The written waiver was signed by appellant in open court in the presence of the Clerk of the trial court. The waiver also contained a certificate of appellant’s attorney who certified by his signature:

“Approved by me as the attorney representing the defendant. I was present at the time of sentencing and am present in court at the time of execution of this waiver, and I have fully explained same to the defendant who has, ⅛ my presence, signed same knowingly, intelligently and voluntarily.”

Subsequently, the Clerk of the trial court received a handwritten pro se notice of appeal from appellant which was dated April 1, 1976. The Clerk filed it on April 9, 1976.

Article 44.08(c), Vernon’s Ann.C.C.P., which is applicable to the case at bar, provides that notice of appeal shall be given or filed within ten days after sentence is pronounced. In the instant case the notice of appeal was filed within the time provided by that statute. However, Article 1.14, Vernon’s Ann.C.C.P., provides that a defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case. The issue, therefore, is whether appellant has properly perfected an appeal under Article 44.08(c), supra, or whether appellant waived his right to appeal.

Criminal procedure in Texas provides several means by which appellate review may be secured. First, appellate review may be secured by giving timely notice of appeal. Article 44.08, Vernon’s Ann.C.C.P. Second, for good cause shown the trial court may permit a late notice of appeal. Article 44.-08(e), supra. In that event, however, the finding of good cause must be supported by evidence in the record and is subject to review by this Court. Reed v. State, 481 S.W.2d 814 (Tex.Cr.App.1972); Perez v. State, 496 S.W.2d 627 (Tex.Cr.App.1973); McDonald v. State, 501 S.W.2d 111 (Tex.Cr.App.1973); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973); Menasco v. State, 503 S.W.2d 273 (Tex.Cr.App.1973); Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.1974); Martinez v. State, 511 S.W.2d 934 (Tex.Cr.App.1974); Garrison v. State, 517 S.W.2d 553 (Tex.Cr.App.1975). Third, by post conviction habeas corpus action, upon a showing that one has been deprived of his right to appeal, relief in the form of an out of time appeal may be secured.

In the instant case, petitioner waived his right to appeal, but subsequently, and within the statutory period, filed a notice of appeal. Because appellant did not secure the consent of the trial court to withdraw his waiver of the right to appeal, this Court is without jurisdiction.

Permission to withdraw a waiver of the right to appeal is a matter of grace and no grounds therefor need be alleged or shown, as distinguished from permission to file a late notice of appeal, which must be supported by a showing of good cause. Furthermore, withdrawal of the waiver, without more, would only permit perfection of the right to appeal if notice of appeal is then given within the statutory time, unless, in addition, a showing is made that would authorize a late notice of appeal or an out of time appeal. Withdrawal of the waiver alone will permit an appeal, then, only if secured within ten days of the event (see Article 44.08, supra) from which the ten-day period is measured.

This Court has previously rejected the proposition that the filing of notice of appeal within the ten-day period automatically withdraws the waiver. The waiver may be withdrawn only with permission of the court. In contrast to withdrawal of the waiver is action seeking to set aside the waiver for cause. The setting aside of such a waiver is relief that may be sought upon allegation of sufficient cause, such as involuntariness of the waiver, and that may be pursued by motion in the trial court filed in the original cause, either before or after expiration of the ten-day period, or by an original cause, such as an application for habeas corpus seeking an out of time appeal. Unlike action denying a request to withdraw the waiver, action refusing to set aside the waiver may be presented to this Court for examination, either by application for writ of habeas corpus under Article 11.07, Vernon’s Ann.C.C.P., or, in an appropriate case, by an original mandamus action.

In the instant case, the record reflects that appellant understood his right to appeal to this Court. He understood that he had ten days from the date of sentencing in which to give notice of appeal. He understood that, if he could not afford an attorney, the court would provide him with an attorney and a proper record on appeal. The record reflects that appellant, after conferring with his attorney, knowingly, intelligently and voluntarily not only waived his right to appeal, but also waived the ten days in which to give notice of appeal. See Article 44.08(c), Vernon’s Ann.C.C.P. Having waived such time, appellant’s giving notice of appeal within ten days after the time that sentence was pronounced was not effective to confer jurisdiction on this Court without the record specifically reflecting that the trial court allowed appellant to withdraw his previous waiver. Nothing in the record indicates that appellant ever requested the trial court to allow him to withdraw his waiver nor does it appear that the court ever granted permission for such a withdrawal.

I would hold that where a defendant has knowingly, intelligently and voluntarily waived the time in which to give notice of appeal under Article 44.08, supra, notice of appeal given within ten days of the event from which the ten-day period under Article 44.08, supra, is measured, is ineffective unless the defendant requests and the court affirmatively grants permission to withdraw his earlier waiver of such ten-day period.

The appeal should be dismissed.

DOUGLAS, J., joins in this dissent.

      . In Reed v. State, 516 S.W.2d 680 (Tex.Cr.App.1974), we stated that “a knowing and intelligent waiver of the right to appeal would only prevent him (a defendant in a criminal case) from appealing without consent of the trial court.” Later, in Abron v. State, 531 S.W.2d 643 (Tex.Cr.App.1976), this Court wrote that the waiver of the right to appeal at the time of sentencing “is effective unless and until a timely notice of appeal is filed.” In Ex parte Dickey, 543 S.W.2d 99 (Tex.Cr.App.1976, opinion following remanded, November 10, 1976), we adopted the statement in Reed to the effect that a knowing and intelligent waiver of the right to appeal will prevent a defendant from appealing without consent of the trial court. By adopting the Reed statement we rejected the statement in Abron.


text:
    Ex parte Tommy Lee DORA.
    No. 3802.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.

      Arthur R. Howard, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., and John Terrell, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an application for writ of habeas corpus which was submitted to this Court by the trial court, pursuant to the provisions of Art. 11.07, V.A.C.C.P.

Petitioner was convicted for the offense of burglary, enhanced under Art. 63, V.A. P.C., in the Criminal District Court of Dallas County and assessed the mandatory life sentence in the penitentiary on December 4, 1970. Petitioner’s direct appeal from this Dallas conviction was affirmed. See Dora v. State, 477 S.W.2d 20 (Tex.Cr.App.1972).

Petitioner filed an application for writ of habeas corpus in the District Court of Lubbock County, complaining of the validity of a 1962 Lubbock County conviction for burglary, which was subsequently used for enhancement in the above-mentioned Dallas County case. The trial court denied the application for writ of habeas corpus, finding that this application for writ of habeas corpus relief “raises no new grounds and raises the same questions raised in the first application for writ of habeas corpus” which was previously denied on February 7, 1974.

From a review of petitioner’s writ filed in this Court, it is to be noted that this Court entered a per curiam order on July 8, 1975, in which we held:

“Under the circumstances presented in this case, we are of the opinion that petitioner has abused the habeas corpus process by continually raising the same claims, over and over again, in his post-conviction writs. We hold that petitioner’s contention has thus been waived and abandoned by his abuse of the writ of habeas corpus. See Ex parte Carr, 511 S.W.2d 623 [523] (Tex.Cr.App.1974), and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068 [10 L.Ed.2d 148] (1963), and cases cited therein.
“Therefore, in view of this holding, we hereby refuse to accept or file petitioner’s instant application for writ of habeas corpus, and the clerk of this Court is hereby ordered not to accept in the future any post-conviction application for writ of ha-beas corpus from this petitioner until it is first shown that such contention was not one that has been raised, or could have been raised, in any earlier proceeding. Until such showing is made, petitioner’s contention is not entitled to consideration.” (Emphasis supplied)

In the instant case, the trial court has found that “no new issues” were raised which warranted further consideration of this second petition. We agree. Petitioner has made no effort to allege that the instant allegations were not ones that had been raised, or could have been raised, in any earlier proceeding. Absent such a showing of good cause for permitting the filing of such application, we decline to file this application, or consider the merits of same.

Pursuant to the provisions of Art. 11.07, V.A.C.C.P., all post-conviction applications for writ of habeas corpus must be filed with the trial court. See Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967). Furthermore, all post-conviction applications for writ of habeas corpus are automatically reviewable, after the trial court enters its order in the case, pursuant to the provisions of Art. 11.07, supra. Ex parte Mayes, 538 S.W.2d 637 (Tex.Cr.App.1976). In cases where this Court has declared that the petitioner has abused the writ of habeas corpus process, certain changes in the trial court’s responsibility under Art. 11.07, supra, are required. Thus, we shall explain to the members of the bench and bar the applicability of the new procedures in such situations.

Where a petitioner has been previously cited for an “abuse of the Great Writ,” the trial court should not thereafter consider the merits of any application for writ of habeas corpus filed by that petitioner. The trial court should, however, review the application and make findings that this petitioner has abused the writ in the past, thus making the review procedure of this Court more efficient. The transcript should be forwarded to this Court, just as in all other cases, pursuant to our automatic review jurisdiction. See Art. 11.07, Sec. 2(a), supra. The writ transcript should, of course, be forwarded to this Court within fifteen days of the trial court’s order. See Art. 11.07, Sec. 2(c), supra.

Upon receipt of the writ transcript from the trial court, this Court shall review the petitioner’s allegations of “good cause” for allowing a re-filing of the application, and if petitioner has “stated facts, which, if true, would entitle him to relief,” then this Court will order the petition filed and considered on the merits.

If factual issues are raised in the application on the issue of whether “good cause” is shown for allowing re-filing, such factual issues requiring an evidentiary hearing, then the case shall be remanded to the trial court for a hearing, as the Texas Court of Criminal Appeals is not a fact-finding agency. See Art. 11.07, Sec. 2(a), supra; Welch v. Beto, 400 F.2d 582 (5th Cir.1968).

If, however, the petitioner has not stated sufficient “good cause” for allowing a re-filing of the petition, or if the factual allegations concerning good cause are clearly without merit upon their face, then the petition shall not be filed or considered henceforth by this Court.

In the case at bar, the petitioner, not having attempted to make a showing of “good cause” for allowing a re-filing of this application, the application is ordered dismissed with prejudice. No further applications will be entertained.

      . The writ application transcript itself will be kept on file as part of the permanent business records of this Court.


author: BROWN, Commissioner. ROBERTS, Judge,

text:
    Dennis SPRAGUE, Appellant, v. The STATE of Texas, Appellee.
    No. 52784.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Rehearing Denied April 6, 1977.
    Ronald E. Walker, Jr., Amarillo, for appellant.
    Tom Curtis, Dist. Atty. and Bruce Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant, in a jury trial, was found guilty of attempted murder. The jury assessed his punishment at thirteen (13) years and six (6) months and a $5,000.00 fine. Appellant did not testify at the guilt-innocence stage of the trial.

Appellant and two of his fellow employees, Fred Russell and Guy Mathes, were making the rounds of taverns in Amarillo drinking beer after work on July 1, 1975. Finally, rather late in the evening they were at the Hut Lounge in a predominantly black section of town. Appellant was seen by his companions talking to a young black man at the bar. He gave the young man $20.00 and rejoined his companions. The young man left the lounge. After a lapse of considerable time, the young man not having returned, appellant became very agitated and claimed that he had been “ripped off’ of his $20.00. Appellant then said, “I am going to go home and get me a gun and come back down here.” When he got home, appellant told his wife to get him his shotgun and then said, “I am going to go back down there and get me one of them bastards.” Appellant and Russell then left the house in Russell’s “dirty brown” Cadillac convertible. Russell testified that they returned to the Hut Lounge but the young black man was not there. Then, as they proceeded south on Washington Street near Twelfth Street, Russell saw a young man walking along the curb. As they approached the young man appellant fired the shotgun at him and Russell saw the young man fall. They then drove back to appellant’s house where appellant announced to those present “I got one of them.”

Cecil Turner testified that on July 1,1975 at approximately 11:00 p. m. he was walking down Washington Street from Twelfth Street and had just stepped into his grandmother’s yard when he was shot with a shotgun as two people passed him in a yellowish Oldsmobile or Cadillac. Mrs. Ruby Mae Washington said that she saw Turner step into his grandmother’s yard from Washington Street when a Cadillac convertible automobile, possibly tan, brown or yellow in color approached. It had two people in it and the passenger stuck a gun out and shot Turner.

Appellant first contends that the court reversibly erred in refusing his requested charge on circumstantial evidence. He relies on Gamboa v. State, Tex.Cr.App., 528 S.W.2d 247 ánd Farris v. State, Tex.Cr.App., 496 S.W.2d 55. In both Gamboa, supra, and Farris, supra, there were no eyewitnesses to the shooting. In this case, however, there was direct eyewitness testimony of the shooting from Russell, Turner and Mrs. Washington. Although Turner could not identify appellant as the person who shot him, nor could Mrs. Washington, and Russell could not identify Turner as the young black man who was shot, there was direct evidence of the shooting at the same time and place and by the passenger in a Cadillac convertible. In view of this, plus appellant’s statement to his friends that he had got one, there was sufficient direct evidence to establish the corpus delicti. Logan v. State, Tex.Cr.App., 510 S.W.2d 598; Cooper v. State, Tex.Cr.App., 509 S.W.2d 865; Riggins v. State, Tex.Cr.App., 468 S.W.2d 841; De La O v. State, Tex.Cr.App., 373 S.W.2d 501. The court did not err in refusing appellant’s requested charge on circumstantial evidence.

Appellant next asserts that the court erred in admitting into evidence the hospital records concerning Turner’s injuries. Nancy Ivy, supervisor of the medical records department of Northwest Texas Hospital, testified that she was custodian of the medical record of Cecil Turner who had been admitted to the hospital on July 2, 1975; that these records were kept in the regular course of business and that the entries were made by persons who had personal knowledge of the acts, events or conditions entered therein, and that such entries were made at or near the time of the acts, events or conditions. When the prosecution offered the records, appellant’s counsel stated: “I will object on the grounds of predicate . . . .” He subsequently stated: “I still submit that the State has not laid a proper predicate under the Business Records Rule . . . and that it shows that they are in medical terms, and no proper medical predicate has been laid.” We have held that Art. 3737e, Vernon’s Ann.Civ.Stats. applies to criminal cases and that hospital records come within the purview thereof, Dalton v. State, Tex.Cr.App., 516 S.W.2d 937; Coulter v. State, Tex.Cr.App., 494 S.W.2d 876, and that the same is to be liberally construed. Morgan v. State, Tex.Cr.App., 503 S.W.2d 770. See also Diaz v. State, Tex.Cr.App., 473 S.W.2d 492 and Felmons v. State, Tex.Cr.App., 451 S.W.2d 495. It was undisputed that Turner was shot with a shotgun, injured and taken to Northwest Texas Hospital where he was treated for his wounds. Even the improper admission of hearsay does not present reversible error unless such testimony is shown to be prejudicial. Fuller v. State, Tex.Cr.App., 501 S.W.2d 112; Haynes v. State, Tex.Cr.App., 482 S.W.2d 191. Appellant’s second ground of error is overruled.

Finally, appellant contends that the court erred in failing to sustain his challenge for cause of two prospective jurors or, in the alternative, in refusing him two additional peremptory challenges in order to eliminate them as prospective jurors.

Panelists Mary Holt and Charlene Lutt-rell were questioned about a conversation they had about probation during a recess. Holt testified that she would not enter the jury box with any preconceived notion; that she was not under any pressure not to consider probation but could listen to everything and base her judgment upon that. Luttrell testified that she would not enter the jury box prejudiced against probation and that she could foresee circumstances where she could give probation. The court did not err in refusing appellant’s challenge for cause and in not granting appellant additional peremptory challenges. Wilson v. State, Tex.Cr.App., 436 S.W.2d 542.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge,

dissenting.

Where the corpus delicti is proved by direct evidence, but the appellant’s agency as the guilty party is proved only by circumstantial evidence, a circumstantial evidence charge must be given. Casey v. State, 523 S.W.2d 658 (Tex.Cr.App.1975); Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974).

Yet the majority now holds that where only the corpus delicti — but not the appellant’s agency — is proved by direct evidence, a circumstantial evidence charge need not be given. This has never been the law in Texas, and I cannot agree that it should become so now.

In this case the evidence tending to show that appellant was the person who shot the complainant was circumstantial, not direct. The appellant filed a timely requested charge on circumstantial evidence. I would hold that the court’s failure to respond to this request was reversible error.

In Gamboa v. State, 528 S.W.2d 247 (Tex.Cr.App.1975), a witness testified that she was in the room next to the room where the murder occurred. She heard gunshots and quickly went into the adjoining room, where she saw the defendant putting a gun in his pocket. She watched as the defendant ripped the telephone off the wall and left the house. The two victims were found shot to death in the room in which the witness saw the defendant.

In Gamboa, a majority of this Court held:

“The evidence against appellant was strongly circumstantial. While the circumstances strongly suggested his guilt, there was no direct evidence of the fac-tum probandum. No one saw appellant fire the fatal shots. Nor was there direct evidence that the bullet which killed the deceased came from the weapon later taken from appellant. Under such circumstances, Texas law requires that a charge on circumstantial evidence be given.” Gamboa v. State, supra, at 248.

In Casey v. State, supra, there was direct evidence that the deceased was shot in the head and killed during a robbery of a Dallas service station. The robbery and murder took place at a Gulf service station just south of L.B.J. Freeway in Dallas during the night of May 22, 1973, or during the early morning of May 23, 1973.

There was direct evidence that one night in May, 1973, appellant went to a store or service station and shot a man in the head. In its unanimous reversal this Court stated that this latter evidence “was direct evidence that appellant had committed an offense, [but] it was not direct evidence that appellant was guilty of the murder of Richard Allen O’Neill, the deceased in the instant case.” Casey v. State, supra, at 660.

There was also direct evidence in Casey, in the form of Casey’s confession, that he and a companion robbed a Gulf or Exxon service station one night in late May, 1973, and that he shot the attendant in the head. This Court held that a charge on circumstantial evidence was required.

What these eases hold is that even where there is direct evidence of the corpus delicti, a charge on circumstantial evidence is still required unless there is also direct proof that the accused hims°lf committed the very crime charged in the indictment.

That is exactly the situation in the case before us now — there is strong evidence that the appellant committed the crime charged, but it is clear that the evidence is only circumstantial. Compare Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1974); Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973). And see Parker v. State, 492 S.W.2d 590 (Tex.Cr.App.1973).

The court’s failure to charge on the law of circumstantial evidence was clearly error. Gamboa v. State, supra; Casey v. State, supra.

The judgment should be reversed.

PHILLIPS, J., joins in this dissent.

      . Thus: “In murder the main fact to be proved — the factum probandum — is that the accused inflicted the fatal wound, that he killed the deceased or acted together with the party who did, and if the main fact is proved as a matter of inference from other facts in evidence the case rest wholly, in a legal sense, upon circumstantial evidence, and a jury called upon to pass upon a case of that character should be informed by the charge of the court as to the nature of such evidence and as to the test provided by law to determine the sufficiency of circumstantial evidence, [citations omitted]” 4 Branch’s Ann. P.C., 2d Ed., Sec. 2049, p. 357.