author: DALLY, Judge. ONION, Presiding Judge.

text:
    James STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 57270.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 13, 1979.
    Rehearing Denied Oct. 17, 1979.

      Warren E. Burnett and Richard J. Clark-son, Odessa, for appellant.
    Vem F. Martin, Dist. Atty., and Timothy A. Sloan, Asst. Dist. Atty., Midland, 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 voluntary manslaughter. The punishment is imprisonment for seven years.

Appellant contends that a charge on involuntary manslaughter should have been given; the trial court erroneously admitted in evidence a statement made by appellant prior to his being advised of his constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1960); evidence of appellant’s reputation for truth and veracity was improperly excluded; the trial court erroneously instructed the jury concerning testimony by the spouse of a defendant in a criminal case; and the State committed reversible error by subpoenaing appellant’s wife as a witness, having her sworn, and having her excluded under the witness rule.

Sometime between 1:00 and 1:30 a. m. on August 20,1976, appellant fatally shot Bobby Dean Sargent as the two stood in the office of the Red Fox Club, a restaurant and bar in Midland owned by appellant. The shooting was the culmination of an argument between appellant and the deceased over the whereabouts of a stag film belonging to the deceased. The argument began in the bar, then moved to the kitchen, where appellant struck the deceased at least once with his fist and where police later found a number of broken dishes. Appellant testified that he left the deceased in the kitchen and went to the office to call Jack Sites, who appellant believed might have the deceased’s film. Appellant described the subsequent events as follows:

“Q. All right. Did you — when you went in the office, did you lock the door?
“A. I don’t remember whether I closed it or locked it — I don’t know. I wouldn’t have locked it. I never do. But I don’t even remember whether I closed it or not.
* * * * * *
“Q. And you were going to call Mr. Jack Sites?
“A. Yes, sir.
“Q. Well, did you start to call Mr. Sites?
“A. Yes, sir.
“Q. All right. And when you started to call Mr. Sites, did you ever on that occasion, did you get a chance to talk to him?
“A. Well, yes, sir.
“Q. All right. You talked to Sites from the little office?
“A. Yes, sir.
“Q. All right. Now when you started to dialing Sites’ number, what happened?
“A. Sargent came bursting through there. And there is a lot of stuff laying around in there. And whenever he did, he scared me. He just come running in there, you know, just like he was mad — I don’t know, he kind of had a crazed look in his eyes.
“Q. Did the door fly open?
“A. I think it did — I don’t remember exactly, whether the door was closed or whether it was opened.
“Q. There is evidence here that the door was forced open. Did you force it open?
“A. No, sir.
“Q. All right. And when the door opened, did the door hit you?
“A. I don’t remember whether the door hit me or not.
“Q. All right. When he came in the room, what did you do?
“A. When he came running in there, he looked at me, and we kind of — he kind of grabbed at me. And I pushed him back — I had a pistol in my pocket. I pulled it out and I fired a shot. And I said, ‘Now, Sargent,’ I said, ‘just wait.’ I said, ‘I’m going to get Jack on the phone so he can tell you where your films are,’ I said, ‘because I don’t have them.’
“Q. All right. What did he do then?
“A. Well, he stood there for just a minute — or seemed like a minute, I don’t know, and I’m dialing Jack. And I got Jack on the phone .
“Q. All right. Now did you start talking to Mr. Sites?
“A. Yes, sir, I did.
“Q. Did you still have the gun in your hand?
“A. Yes, sir.
“Q. All right. What happened then?
“A. Well, Sargent, he lunged at me. And whenever he did — I was talking to Jack on the phone. And he grabbed the telephone, and grabbed me with the other hand. And I tried to swing — he got the phone loose from me. And then I remember that I was going back — I don’t know whether I fell or not, and I shot — I guess I shot again.
Q. All right. Now if that man had got ahold of the gun, and got the gun in his possession, is there any doubt in your mind, then or now, but what you would have been a dead man?
A. Yes, sir. I think he would have killed me.
* * * * * *
Q. Did you have any reason on earth to want to kill that man?
A. No, sir.
Q. Did you have any reason on earth to have the gun, other than to protect yourself?
A. No, sir.
Q. And when he came at you, and you standing there talking on the phone, and with the gun in your hand, was there any question in your mind but what if he got the gun away from you, that you were going to get shot?
A. Yes, sir — he scared me. I was afraid.
Q. All right. You are in this little bitty room. Had you invited him in the room?
A. No, sir.
Q. Do you even remember, as far as that’s concerned, pulling the trigger?
A. No, sir, I don’t. I do the first time, but I don’t remember the second time.
Q. Were you doing anything to the man when he made this lunge at you, other than telling him that you were going to get the man on the phone, to satisfy him about them films?
A. That’s right. I told him that. And I was talking to Jack whenever he lunged at me.
Q. And that’s when the gun was fired?
A. Yes, sir.
Q. And you had no intention on earth to do anything, other than to protect yourself?
“A. Yes, sir.”

Appellant was indicted for murder. The trial court charged the jury on the lesser included offenses of voluntary manslaughter and aggravated assault, and on the law of self-defense. Appellant contends that the trial court erred by refusing his requested charge on involuntary manslaughter.

A person commits involuntary manslaughter when he recklessly causes the death of an individual. V.T.C.A. Penal Code, Sec. 19.05(a)(1). A person acts recklessly or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. V.T.C.A. Penal Code, Sec. 6.03(c).

When we read appellant’s testimony in light of Sec. 6.03(c), supra, we find no evidence that appellant acted in a reckless manner. Indeed, appellant testified that he shot the deceased in order to ward off the latter’s attack. The trial court did not err in refusing to submit a charge on involuntary manslaughter. See Brooks v. State, 548 S.W.2d 680 (Tex.Cr.App.1977); Scott v. State (No. 55,659, decided May 23, 1979).

Officer David Wilks testified that he was dispatched to the Red Pox Club to check out a report of an accidental shooting. Outside the club, he met an acquaintance who told him that appellant had shot someone. Wilks entered the club, saw appellant, with whom he was also acquainted, and asked appellant what had happened. Appellant told Wilks that the deceased had locked himself in the office and shot himself, and had told appellant not to call the police. Appellant contends that his answer to Wilks’ question was improperly admitted over his objection because he had not been advised of his constitutional rights.

In Miranda v. Arizona, supra, the United States Supreme Court stated that its decision was “not intended to hamper the traditional function of police officers in investigating crime . . . General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding.” 384 U.S. at 477, 86 S.Ct. at 1629. Although Wilks had been told that appellant had shot someone, this information was not inconsistent with the initial report of an accidental shooting. There is nothing in the record to establish that appellant had become the focus of a criminal investigation when Wilks asked him what had happened. To the contrary, it is clear from the record that appellant’s statement was made during the investigatory process as a part of the general on-the-scene questioning by Wilks. The trial court did not err in admitting the statement. Lovel v. State, 538 S.W.2d 630 (Tex.Cr.App.1976); Terrill v. State, 531 S.W.2d 642 (Tex.Cr.App.1976); Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975); Graham v. State, 486 S.W.2d 92 (Tex.Cr.App.1972).

Appellant contends that the trial court erred by refusing to permit testimony at the guilt phase as to appellant’s good reputation for truth and veracity. He argues that this testimony was admissible because Wilks’ testimony concerning appellant’s statement to him was in direct contradiction to appellant’s trial testimony.

This contention is without merit. First, Wilks’ testimony and appellant’s testimony are not contradictory; at no time did appellant deny making the statement attributed to him by Wilks. Moreover, even if the testimony were contradictory, evidence of appellant’s good reputation for truth would not have been admissible. The rule is well stated in Wallace v. State, 501 S.W.2d 883 (Tex.Cr.App.1973):

“In Matthews v. State, 80 Tex.Cr.R. 177, 189 S.W. 491, this Court, in sustaining the trial court’s refusal to permit defendant to prove by two witnesses his good reputation for truth and veracity, said:
“ ‘The rule is well established that, if the state had attacked his general reputation for truth and veracity by any witness, or had attempted to impeach him by proving contradictory statements, then he would have been permitted to have introduced such proof; but, until such contingency arises, the fact that he gives testimony disputing that offered by the state would make no such testimony admissible.’ [Citations omitted.]
“The State had not impeached appellant by proving contradictory statements, or attacked his general reputation for truth and veracity. The fact that appellant gave testimony disputing that offered by the State would not put his general reputation in issue. No error is shown in the ruling of the trial court.”

One of the witnesses subpoenaed by the State was Patsy Hill, who was present at the Red Fox Club on the night in question. As the witnesses were coming forward to be sworn at the beginning of the trial and in the presence of the jury, appellant’s counsel said:

“MR. BURNETT: The Rule has been invoked, Mrs. Stewart. Would you come around and be sworn? The State has subpoenaed Mrs. Stewart, if Your honor please.”

Although the record does not expressly reflect this fact, subsequent events make it clear that counsel was speaking to and about Patsy Hill.

While questioning one of the waitresses at the Red Fox Club outside the presence of the jury, the prosecutor asked about a statement made to the witness by Hill following the shooting. Appellant objected to this question. The following exchange then took place:

“THE COURT: Is Mrs. Hill going to be available to testify, I presume?
“MR. BURNETT: The State has subpoenaed her.
“MR. MARTIN: Well, we might as well get this clear, too. What is the relationship of Patsy Hill to the Defendant, do you know?
“THE WITNESS: All I know is that they are not married. They were just living together.
“MR. MARTIN: Your Honor, the attorney for the Defendant has advised the District Attorney’s office that Patsy Hill and the Defendant are married, and that he will interpose that objection to the State ever calling her as a witness . . ”

Subsequently, a stipulation was entered that appellant and Patsy Hill were married, and the State neither called her as a witness nor questioned any witness in the presence of the jury concerning any statement made by her.

During his own direct testimony, appellant was asked the following questions:

“BY MR. BURNETT:
“Q. I forgot to ask you, Mr. Stewart, your wife has been subpoenaed in this case by the State or by the District Attorney’s office, has she not?
“A. Yes, sir.
“Q. I have explained to you that you have a right to keep your wife from testifying in the case, haven’t I?
“A. Yes, sir.
“Q. I have also explained to you that you may waive that objection, and let the State do whatever they want to about calling her as a witness, have I not?
“A. Yes, sir.
“Q. And it is your wish in Open Court to waive any such objection?
“A. That’s right, sir.”

Appellant contends that the State committed reversible error in subpoenaing his wife as a witness, then having her sworn before the jury and excluded from the courtroom under the witness rule. Appellant contends that this error was compounded when the trial court gave the following instruction to the jury:

“Our law further provides that the State may not call the wife of a Defendant to testify against the Defendant in any criminal trial, and further provides that this law may not be waived by the Defendant.”

Appellant objected to this paragraph of the charge on the grounds that it is an improper statement of the law and constitutes a comment on the weight of the evidence, and requested that the following instruction be given:

“You are further instructed that the Defendant, in a criminal prosecution for any offense, may waive any right secured him by law, except the right of trial by Jury in a capital felony case.”

Art. 38.11, V.A.C.C.P., provides that:

“. . . The husband and wife may, in all criminal actions, be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution . . . ”

None of the enumerated exceptions are applicable to the instant case.

It is reversible error for the State to call the defendant’s wife as a witness, thereby forcing him to object in the presence of the jury, when this is done in such a manner as to convey to the jury the impression that the wife, if allowed to testify, would rebut defensive testimony previously given. Johnigan v. State, 482 S.W.2d 209 (Tex.Cr.App.1972); Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967). In Clayton v. State, 465 S.W.2d 769 (Tex.Cr.App.1971), on the other hand, we held that while the prosecutor erred in having the defendant’s wife sworn as a witness in order to have her excluded from the courtroom under the witness rule, this error did not require reversal.

There is nothing in the record to indicate that the State, at the time the subpoena for Hill was issued, was aware of the fact that she was appellant’s wife. Moreover, it was appellant’s counsel who drew the attention of the jury to the fact that Hill was married to appellant and had been subpoenaed as a witness, and who, in his questioning of appellant, sought to emphasize the State’s failure to call Hill by having appellant waive any objection to her testifying. We hold that, under the circumstances, the State did not commit reversible error in having Hill subpoenaed, sworn, and excluded under the witness rule.

We also hold that the trial court did not err in giving its instruction to the jury concerning testimony by the defendant’s spouse and in refusing appellant’s requested instruction. Contrary to appellant’s contention, the prohibition against adverse spousal testimony is not a right which may be waived by a defendant under Art. 1.14, V.A.C.C.P. The disqualification of a spouse as an adverse witness cannot be waived. Johnigan v. State, supra; Carabajal v. State, 477 S.W.2d 640 (Tex.Cr.App.1972); Krzesinski v. State, 169 Tex.Cr.R. 178, 333 S.W.2d 149 (1960); Bush v. State, 159 Tex.Cr.R. 43, 261 S.W.2d 158 (1953). The instruction given by the trial court is a correct statement of the law. It does not comment on the weight of the evidence, nor does it give any indication of the trial court’s opinion of the case. These grounds of error are overruled.

The judgment is affirmed.

Before the court en banc.

OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

On rehearing appellant urges this court did not properly dispose of his contention that the trial court erred in refusing to allow him to call witnesses at the guilt stage of the trial to testify as to his general reputation for truth and veracity. In the State’s case-in-chief officer Wilks testified that when he arrived at the scene of the homicide he asked the appellant what happened and was told that the deceased had said not to call the police, had locked himself in the office and shot himself. After the State rested its case-in-chief, the appellant testified that after an argument the deceased had rushed into the room where he (appellant) was, and that acting in self-defense, he shot and killed the deceased. On cross-examination, no questions were asked of the appellant about the statement officer Wilks related that appellant made to him.

It is appellant’s contention that officer Wilks’ testimony concerning the statement made by the appellant at the scene of the shooting was inconsistent with appellant’s later testimony and thus placed appellant’s credibility in issue and justified appellant’s request that he be allowed to call witnesses as to his reputation for truth and veracity.

The general rule is that where there is no evidence except contradictory evidence, it is not permissible to bolster the testimony of the witness by proof of his good reputation for truth and veracity. See Rodriguez v. State, 165 Tex.Cr.R. 179, 305 S.W.2d 350 (1957), and cases there cited.

In 62 Tex.Jur.2d, Witnesses, § 241, p. 192, it is stated:

“Unless testimony should be admissible on the ground that it is corroborative as to what a witness has testified to on some material issue, the rule, both in civil and in criminal cases is that impeachment of the witness by the adverse party is an essential prerequisite of the calling of witnesses to sustain him in one of the recognized ways. Applying this principle, it has been ruled that it is not permissible to introduce evidence . . . that the witness has a good reputation for veracity until his veracity has been impeached

In § 242 of the same authority, it is written:

“In conformity with the import of the terms ‘impeach’ and ‘contradict’ in this department of the law, a witness may not be supported merely because testimony in conflict with his has been introduced. To authorize the introduction of supporting testimony the witness must have been impeached in the sense that he is charged with fabricating testimony or of testifying falsely; or an attempt must have been made to show that he made a prior statement in conflict with his testimony, or has conducted himself inconsistently therewith . . . .”

In § 284 of the same authority at p. 269, it is written:

“Unless a proper predicate has been laid it is not competent for a party to show that his witness bears a good reputation for veracity, for to admit that testimony without the witness’s having been impeached would be to introduce an unnecessary collateral issue.
“In accordance with the general rule, mere conflict in the evidence is not a sufficient predicate . . .

The appellant contends the general rule should not be applicable to him in light of officer Wilks’ testimony in the State’s casein-chief and his own subsequent testimony.

In Mitchell v. State, 156 Tex.Cr.R. 128, 239 S.W.2d 384, 389 (1951), a fact situation similar to the instant case, this court wrote:

“Bill of Exception No. 12 is leveled at the failure of the trial court to permit appellant to offer character witnesses’ testimony as to his good reputation for truth and veracity.
“The State, in making out its case, proved by two peace officers that upon their arrival at the scene of the homicide appellant made to them a statement as to his reason for having committed the same. When defendant took the stand, he denied having made such a statement to the officers and assigned another reason for having fired the fatal shot. Appellant claims this to be a sufficient predicate for the introduction of testimony supporting his reputation for truth and veracity and relies heavily upon Stillwell v. State, 104 Tex.Cr.R. 338, 283 S.W. 840. In that case the State had made out its case in chief; appellant had testified; had been cross-examined; and in rebuttal the State offered a confession containing statements inconsistent with appellant’s testimony. Following this, appellant offered witnesses to support his reputation for truth and veracity. These, the trial court refused to hear. Judge Lattimore pointed out that by virtue of the order of the above procedure, the State having made the issue as to the contradictory statements of appellant, he was therefor impeached and the testimony as to his reputation for truth and veracity should have been heard. The Court went further in that case and discussed White v. State, 42 Tex.Cr.R. 567, 62 S.W. 575, approving the holding therein.
“In the White case the State introduced against the accused, as a part of its case in chief, statements made by him with reference to the crime. He took the stand and swore to the contrary. He then sought to bolster his testimony by that of other witnesses. In differentiating between the Stillwell and White cases, the Court said: ‘The clear distinction is that in such case the state offers no contradictory statements to those made by appellant, but proves as original testimony his declarations and statements, and that he cannot thereafter put his character in evidence by testifying in his behalf to facts contradictory to those offered by the state.’ [104 Tex.Cr.R. 338, 283 S.W. 843].
“To sustain appellant’s contention would be to authorize every defendant to bolster his defense with witnesses as to his reputation for truth and veracity by the simple expedient of disagreeing with the State’s version of the case. The defendant himself may not create the contradiction or impeachment and profit thereby.”

See also Wallace v. State, 501 S.W.2d 883 (Tex.Cr.App.1973), quoted with approval in our panel opinion on original submission.

We remained convinced that this matter was properly disposed of on original submission.

Appellant’s motion for rehearing is overruled.

      . It should be noted that the opinion on original submission should not be interpreted, as appellant does according to his brief, as implying that a defendant or other witness must first deny making a prior inconsistent statement before the rule in question comes into play. It may be triggered by other means as well. See 62 Tex.Jur.2d, Witnesses, § 284, p. 271.


source: Caselaw Access Project

author: ODOM, Judge. DALLY, Judge.

license: Public Domain

text:
    Bertwell Elber WHITTEN, III, Appellant, v. The STATE of Texas, Appellee.
    No. 60989.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 20, 1979.
    Rehearing Denied Oct. 17, 1979.

      Scott E. Segall, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Leo B. Garcia, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary, and punishment, enhanced by proof of one prior conviction, was assessed by a jury at twenty years.

Appellant was charged in a multi-count indictment with three burglaries. After the jury was selected the prosecutor read the three charges of burglary in sequence, and after each of the first two appellant announced his plea of not guilty. After the third charge of burglary was read, appellant announced he was pleading guilty. This apparently took the court by surprise. The jury was removed so that appellant could be admonished pursuant to Article 26.13, V.A.C.C.P. before his guilty plea was accepted by the court. In admonishing appellant there was a complete failure to inform him of the punishment range affixed to the offense. Appellant complains of this fact in his first ground of error.

The State argues that appellant was adequately informed of the punishment range because he was present during the jury selection process, at which the prosecutor informed the prospective jurors of the applicable punishment range. That was not sufficient to satisfy the requirements of the Code of Criminal Procedure. In Murray v. State, Tex.Cr.App., 561 S.W.2d 821, the Court held:

“The statute provides that it is the trial court which must admonish the accused of the range of punishment attached to the offense. The statute is mandatory: It does not allow the defense attorney, or the prosecutor, or the clerk of the court, or anyone but the judge himself, to admonish the accused of the range of punishment.”

This case is controlled by Murray v. State, supra, and Walker v. State, Tex.Cr.App., 524 S.W.2d 712.

The judgment is reversed and the cause remanded.

Before the Court en banc.

OPINION ON MOTION FOR REHEARING

DALLY, Judge.

On motion for rehearing the State contends that our prior cases in this troubled area of law are inconsistent and in conflict with the holding of the panel in this case. See Wilson v. State, 456 S.W.2d 941 (Tex.Cr.App.1970); compare Murray v. State, 561 S.W.2d 821 (Tex.Cr.App.1977) and Toombs v. State, 514 S.W.2d 259 (Tex.Cr.App.1974) with Williams v. State, 522 S.W.2d 483 (Tex.Cr.App.1975). The State further urges that the question presented here was left open by this Court in Walker v. State, 524 S.W.2d 712 (Tex.Cr.App.1975), and they ask us to find substantial compliance in this case with the admonishment requirements of Art. 26.13. See Art. 26.-13(c), V.A.C.C.P. We conclude that the decision of the panel was correct.

The Code of Criminal Procedure requires that:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
“(1) the range of punishment attached to the offense . . .”

Art. 26.13(a)(1), V.A.C.C.P. If the record does not affirmatively show an admonishment as to the range of punishment, the guilty plea is invalid. McDade v. State, 562 S.W.2d 487 (Tex.Cr.App.1978); Walker v. State, 524 S.W.2d 712 (Tex.Cr.App.1975). Such an omission is fundamental error. Fuller v. State, 576 S.W.2d 856 (Tex.Cr.App.1979); see also Carrillo v. State, 576 S.W.2d 824 (Tex.Cr.App.1978); Kelley v. State, 573 S.W.2d 28 (Tex.Cr.App.1978).

The purpose of this admonishment is to insure that the defendant entered his plea with full knowledge of its consequences. An affirmative showing of such knowledge is constitutionally required as well. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). It is undisputed that the trial court did not admonish appellant about the range of punishment attached to his offense. The State points out, however, that the prosecutor explained this punishment range to the jury during voir dire in appellant’s presence and claims that this explanation substantially complied with the statute, effectively protecting appellant’s rights.

Art. 26.13(c), V.A.C.C.P. provides that:

“In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of the plea and that he was misled or harmed by the admonishment of the court.”

We observe at the outset that an affirmative showing of prejudice by appellant is unnecessary if there has been no substantial compliance with the statute; therefore the question of substantial compliance, not harmless error, is the primary focus of our analysis.

This Court has recognized two situations where deficient admonishments are considered to be in substantial compliance with the statute. The first situation is where an admonishment was not given but the admonishment was immaterial to the plea in that case, such as where the trial court failed to admonish on the non-binding character of prosecutorial recommendations and no prosecutorial recommendation had been made. See, e. g., Jamail v. State, 574 S.W.2d 137 (Tex.Cr.App.1978); Kidd v. State, 563 S.W.2d 939 (Tex.Cr.App.1978); Bouie v. State, 565 S.W.2d 543, 553 (Tex.Cr.App.1978) (Onion, P. J., concurring). However, where the admonishment is relevant to the voluntariness of the plea, as is true here with the admonishment on the range of punishment, substantial compliance cannot be satisfied merely because other required admonishments were provided. Walker v. State, 524 S.W.2d 712 (Tex.Cr.App.1975).

Substantial compliance will also be found where a required admonishment is given, but is given in a different form than that prescribed by the statute yet which effectively satisfied the statutory requirements. See Richards v. State, 562 S.W.2d 456 (Tex.Cr.App.1978); Pinson v. State, 530 S.W.2d 946 (Tex.Cr.App.1975) (form of trial court’s inquiry to defendant on voluntariness); Teamer v. State, 557 S.W.2d 110 (Tex.Cr.App.1977); Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.1975) (incorrect description of punishment range deemed harmless). The ambiguity of substantial compliance in this area, specifically related to the facts of this case, was the problem left open by Walker v. State, supra. See Walker v. State, 524 S.W.2d at 717-18 (Onion, P. J., concurring). Nevertheless, there are two essential elements in these tolerated admonishments that are present in every case. First, the trial court gives the ad-monishmént and, second, it is given directly to the defendant.

In Art. 26.13, the legislature mandated that the trial court be responsible for giving the admonishment. Murray v. State, 561 S.W.2d 821 (Tex.Cr.App.1977). We do not agree with the State’s view, expressed in their brief, that this is a mere “technicality.” The trial court, not the prosecutor, must satisfy itself as to the propriety of guilty pleas and defendants should properly look to the trial court, not the prosecutor, for admonishments on the law. In Murray, the defendant signed an affidavit containing the punishment range but did so before a deputy district clerk. The Murray court emphasized that, under the present statute, no one but the trial judge could admonish the accused. Murray did not resurrect Toombs v. State, 514 S.W.2d 259 (Tex.Cr.App.1974), overruled in Williams v. State, 522 S.W.2d 483 (Tex.Cr.App.1975), because it did not preclude the trial court from using a written instrument to perform the admonishment. See Williams v. State, 522 S.W.2d at 486 (Onion, P. J., concurring). The necessary participation of the trial court is a consistent requirement.

The defendant must also be the object of the admonishment. To comply with both Texas law and federal due process, the defendant must hear and understand the admonishments. For a question of such significance, we refuse to create a presumption that defendants listen to, acknowledge, and understand whát a prosecutor, or even the court, chooses to say to the jury. In Palacios v. State, 556 S.W.2d 349 (Tex.Cr.App.1977), the trial judge admonished the defendant after entry of his guilty plea, just before the jury retired to consider punishment. This court found substantial compliance because the admonishments were correctly given and defense counsel did not object to the belated nature of the admonishments. In Stewart v. State, 580 S.W.2d 594 (Tex.Cr.App.1979), the trial court did not admonish the defendant on the range of punishment but did announce the range of punishment in defendant’s presence during the charge to the jury. We refused to follow Palacios, stating:

“The fact that the range of punishment is included with the court’s charge cannot be held to substitute for the requirement under Art. 26.13, supra, that a defendant be admonished as to the range of punishment attached to the offense.”

580 S.W.2d at 595. The key distinction between Palacios and Stewart is that admonishments under Art. 26.13 are properly directed to the defendant, not to the jury. Since Wilson v. State, 456 S.W.2d 941 (Tex.Cr.App.1970), decided under the previous Art. 26.13, cannot be reconciled with this view, it is overruled.

In this case, the trial court did not participate in the admonishment and the admonishment was not directed to the defendant. There was consequently no substantial compliance with the provisions of Art. 26.13. We also note that the record contains no affirmative indication that appellant understood or even heard the prosecutor’s voir dire explanation, so that this result is also mandated by requirements of due process. See Walker v. State, 524 S.W.2d at 718 n. 2 (Onion, P. J., concurring), and authorities cited therein.

The State’s motion for rehearing is overruled.

      . Fuller implicitly overruled Ex parte Taylor, 522 S.W.2d 479 (Tex.Cr.App.1975), a case decided under the previous Art. 26.13. Williams v. State, 522 S.W.2d 488 (Tex.Cr.App.1975) and Guster v. State, 522 S.W.2d 494 (Tex.Cr.App.1975), despite their apparent reliance on Taylor, remain valid because, unlike Taylor, the trial courts in Williams and Guster substantially complied with the statutory admonishment requirements. See Williams v. State, 522 S.W.2d at 489 (Douglas, J., concurring); Guster v. State, 522 S.W.2d at 495 (Douglas, J., concurring).


author: KEITH, Commissioner.

text:
    George Walton WATTS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 61369.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 10, 1979.

      Donald W. Rogers, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Kenneth B. Levi, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., ODOM and DALLY, JJ., and KEITH, C.
   OPINION

KEITH, Commissioner.

Appellant was indicted on a two-count indictment, the first charging burglary of a habitation and an attempt to commit rape under V.T.C.A., Penal Code, Sec. 30.02(a)(3). The second count charged attempted rape. Appellant entered a plea of nolo contendere and there was no recommendation from State’s counsel as to his punishment. He executed a waiver of jury trial and a stipulation as to the evidence.

The trial court found him to be guilty on count one and assessed his punishment at confinement for fifteen years. Count two was dismissed.

Although he did not file a motion to quash the indictment, appellant’s sole ground of error is a contention that the indictment was fundamentally defective in count one because such count “fails to allege a culpable mental state.” His sole authority is Holcomb v. State, 573 S.W.2d 814 (Tex.Cr.App.1978).

We reproduce, in parallel columns, the pertinent parts of the indictment in Holcomb, supra, and this case:

State’s counsel argues that our decision in Holcomb that the indictment was fundamentally defective because it omitted the necessary culpable mental state allegations was incorrect and should be overruled. Counsel argues that the two cases relied upon in Holcomb are readily distinguishable.

Counsel also argues that the presence of the word “unlawfully” preceding the word “enter” distinguishes Gonzales and Winton from Holcomb. We disagree and decline the invitation to overrule Holcomb.

One of the elements necessary to establish an offense under V.T.C.A., Penal Code, Sec. 15.01(a), is that the accused, “with specific intent to commit an offense,” does an act, etc. The bald conclusory allegation that he entered the habitation and did “attempt to commit the felony of RAPE” is insufficient, as a matter of law, to charge a crime. Drye v. State, 14 Tex.App. 185, 191 (1883); Brinster v. State, 12 Tex.App. 612, 613 (1882); Williams v. State, 12 Tex.App. 395, 400 (1882). See also Dovalina v. State, 564 S.W.2d 378, 385 (Tex.Cr.App.1978) (concurring opinion).

We reaffirm our holding in Holcomb, supra, that an indictment under V.T.C.A., Penal Code, Sec. 30.02(a)(3) must include an allegation of a culpable mental state; and, since none was included in the indictment in this cause, the indictment was fundamentally defective. V.T.C.A., Penal Code, Sec. 6.02(a) and (b).

Since the indictment if fundamentally defective, the judgment is reversed and the prosecution under this indictment ordered dismissed.

Opinion approved by the panel.

      . We cited and footnoted the allegations in the indictments in Ex parte Gonzales, 557 S.W.2d 790 (Tex.Cr.App. 1977), and Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977). See 573 S.W.2d at 815 nn. 3 and 4, respectively.

      . “What was overlooked in the Holcomb opinion was the decisive difference in allegation of ‘unlawfully enter’ and mere allegation of ‘enter.’ ”

      . “(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.”


author: ROBERTS, Judge.

text:
    Marc Norman WATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 54140.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1979.
    Robert G. Dohoney, Hillsboro, for appellant.
    Charles F. Campbell, Jr., Former Dist. Atty., Neal T. Jones, Jr., Dist. Atty., Hills-boro, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

ROBERTS, Judge.

On original submission, a panel of this Court affirmed the appellant’s conviction for murder (with a punishment of 99 years’ confinement). On the appellant’s motion for rehearing, we noticed that the record was devoid of any evidence that the minor appellant was afforded, or that he waived, an examining trial after he was transferred from the juvenile court to the district court for criminal proceedings. See V.T.C.A., Family Code, Section 54.02(h). Accordingly, the Court en banc reversed the judgment and ordered the indictment dismissed. Now a supplemental record, which shows the proceedings before indictment, has been transmitted to us; the State asks us to rehear the cause. Both of our prior opinions are hereby withdrawn.

The State alleged that on March 2, 1975, the minor appellant committed murder. On March 3, 1975, a “first hearing on detention” was held in the juvenile court, and the appellant was ordered detained. On a day (identified in the court’s order as the 11th, but in its docket sheet as the 14th) of April, 1975, the juvenile court held a transfer hearing and waived its jurisdiction over the appellant. On April 24th, an examining trial was held in the district court, and the appellant was remanded to the custody of the sheriff. On May 6,1975, the grand jury returned an indictment alleging murder under V.T.C.A., Penal Code, Section 19.-02(a)(2).

On September 2, 1975, the State moved that the district court remand the child to the juvenile court because there was no showing of record that the appellant had been served with a summons to the transfer hearing. On the day the motion was filed, the district court found that the State’s allegation was correct, and it remanded the appellant to the juvenile court. The juvenile court set aside its transfer order.

Thereafter the State started from scratch. It filed a petition for adjudication in the juvenile court, alleging the offense of murder under V.T.C.A., Penal Code, Section 19.02(a)(1). A transfer hearing was held and the appellant ordered transferred to the district court on November 24,1975. It does not appear that the appellant was afforded, or that he waived, an examining trial. On December 17, 1975, the grand jury returned an indictment alleging murder under V.T.C.A., Penal Code, Section 19.02(a)(1). It was on this indictment that the appellant was tried and convicted.

The motion and order of September 2 amounted to a finding that the appellant had not been served with a summons to the first transfer hearing. Such service is a jurisdictional requirement which cannot be waived; the failure to make such service deprived the juvenile court of jurisdiction to transfer the appellant, and the transfer was a nullity. Grayless v. State, 567 S.W.2d 216 (Tex.Cr.App.1978). Without a valid transfer, the district court had no authority to conduct an examining trial. This is implied by the language of the statute (“The examining trial shall be conducted by the court to which the case was transferred . . . .” V.T.C.A., Family Code, Section 54.02(h)). More importantly, it is the policy of our Legislature that a child shall not be subjected to adult criminal proceedings unless and until he is transferred by the juvenile court.

“Unless the juvenile court waives jurisdiction and certifies the individual for criminal prosecution, a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age except [certain perjury and traffic offenses].” V.T.C.A., Penal Code, Section 8.07(b).

“On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest.” V.T.C.A., Family Code, Section 54.02(h). The strong implication is that if there is no transfer, the child shall not be dealt with as an adult, and there is no arrest. An examining trial is a part of adult criminal proceedings after arrest. See V.A.C.C.P., Article 16.01. If there has been no valid transfer, there can be no examining trial.

“It is clear from [the present transfer statute and its predecessors] that the legislative intent has been that a three step procedure be followed before a juvenile . is tried in district court as an adult.” Menefee v. State, 561 S.W.2d 822, 828 (Tex.Cr.App.1977). See White v. State, 576 S.W.2d 843, 845 (Tex.Cr.App.1979) (Onion, P. J., concurring). The three steps are a transfer hearing, an examining trial, and a grand jury’s deliberation; then trial may follow. If one of these steps is omitted or rendered void by a jurisdictional defect, then there can be no jurisdiction to proceed with the next step. The district court had no jurisdiction to subject the appellant to an examining trial on April 24, just as it would have had no jurisdiction to try the case (Grayless v. State, 567 S.W.2d 216 (Tex.Cr.App.1978)).

When the State and the district court recognized that the first step of the proceeding (the transfer hearing of April 14th) was void, they started over from step one. We note that the State apparently took the opportunity to change its allegation of the offense from V.T.C.A., Penal Code, Section 19.02(a)(2) to Section 19.02(a)(1). It was necessary to follow all three steps before trial. The record does not show that any valid examining trial was held before the indictment of December 17, or that the appellant waived an examining trial. Thus the indictment was void. White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979).

The judgment is reversed and the indictment is ordered dismissed; the appellant is remanded to the district court of Hill County, Texas, for proceedings in accordance with V.T.C.A., Family Code, Section 54.-02(h).

DOUGLAS, TOM G. DAVIS and DALLY, JJ., dissent.

      . The judge of the district court and the judge of the juvenile court was the same person.

      . The district court could have had jurisdiction only to determine whether it had jurisdiction. It effectively made this determination on September 2, 1975.


text:
    Ex parte Leon Willis Johnston.
    No. 56906.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 3, 1979.

      None appearing for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is a petition for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

The applicant was convicted of the offense of rape on his plea of not guilty to a jury and was assessed the death penalty in June of 1964. The conviction was affirmed on appeal. See Johnston v. State, 396 S.W.2d 404, (Tex.Cr.App.), cert. denied 384 U.S. 1024, 86 S.Ct. 1976, 16 L.Ed.2d 1029 (1966).

The applicant filed a petition for writ of habeas corpus in the convicting court alleging that he was denied due process of law during his trial, because he was mentally incompetent to stand trial, and the trial court failed to conduct a separate hearing to determine if he was competent to stand trial when the issue was raised by the evidence. The convicting court, without an evidentiary hearing, reviewed the statement of facts of the original trial and made the following findings:

“The testimony of Dr. Norman L.'Rubin, who was an expert witness in psychiatry and neuropsychiatry, testified [sic] that Petitioner was, and had been all of his lifetime, obsessed with things of a sexual nature and a compel [sic] within him to carry on these acts. He further testified that, in his expert opinion, and based upon the history of Petitioner, that Petitioner is not in touch with reality at all times. He further diagnosed the illness of Petitioner as schizophrenic reaction, undifferentiated, chronic. This Doctor’s testimony was corroborated by Doctor H. L. Pope, another medical expert. His testimony also found much support in many lay witnesses who testified as to their knowledge and acquaintance with this Petitioner during all of his lifetime, including his teachers in school, and all testified that he was ‘not all there,’ and other peculiarities not possessed by normal [sic] acting people of his age.”

Based upon his review of the original record, the convicting court concluded that the testimony adduced at the main trial was sufficient to raise a bona fide doubt as to the competency of the applicant to stand trial, and that the denial of a separate hearing on competency to stand trial was a denial of due process. The convicting court’s findings of fact and conclusions of law have not been challenged by the State.

Our own review of the record reflects that the applicant’s witnesses at the original trial indicated that he “acted different” from other persons, that he acted like a “smaller child . . . when he was grown,” that he “just wasn’t all there,” that he was “not like other children,” that his grades in high school deteriorated with age, that he had polio when he was a child, this affliction lasting several years, that he was somehow “injured” while in the Navy. In addition, there was testimony that the applicant, shortly before the crime in question, indicated to his mother that he “needed a psychiatrist or mental doctor,” and that he was afraid of what he “might do.”

During the trial, one of the applicant’s court-appointed attorneys informed the court that the medical testimony presented was relevant to the defendant’s “state of mind this morning in this court room,” indicating that psychiatric problems were persisting through the period of the trial. Also, in the cross-examination of the State’s sole medical witness, Dr. Smith, it was pointed out that the applicant’s own court-appointed attorney had gone to Dr. Smith, the county medical officer, to get tranquilizers for the applicant so that “we could interview him.”

No testimony was presented either at the original trial or during the habeas corpus proceeding by either of the applicant’s original trial counsel. However, we note that trial counsel did submit a requested charge to the court asking the court to charge the jury on present insanity (incompetency) at the time of the trial. We also note that the trial court did charge the jury that it must acquit if it found that the applicant was presently insane. This means that the trial court believed that the evidence had raised the issue of present insanity (incompetency to stand trial); this is a factor to be considered in determining whether there was a bona fide doubt of the applicant’s competence. Ex parte Hagans, 558 S.W.2d 457 (Tex.Cr.App.1977).

We agree with the convicting court’s conclusion that there had been raised at trial a bona fide doubt as to the applicant’s competence. Compare Ex parte Hagans, supra; Ex parte Halford, 536 S.W.2d 230 (Tex.Cr.App.1976).

When there is a bona fide doubt of a defendant’s competence to stand trial, a state must provide procedures that are adequate to protect the defendant’s due process right not to be tried while he is incompetent. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). This rule is applied retroactively. Ex parte Halford, 536 S.W.2d 230 (Tex.Cr.App.1976). To be adequate, the procedure must provide for a competency hearing that is separate from the trial on the issue of guilt. Ex parte Hagans, 558 S.W.2d 457 (Tex.Cr.App.1977). Such a procedure was not followed at the applicant’s trial; the issue of his “present insanity” (incompetency to stand trial) was presented to the jury along with the issue of his guilt. The applicant is entitled to relief. Ex parte Locklin, 583 S.W.2d 787 (Tex.Cr.App.1979).

A second reason for giving relief is that only the M’Naghten standard was given to the jury to determine both “present insanity” and insanity at the time of the offense. This was an improper standard for determination of present competency to stand trial. Ex parte Hagans, 558 S.W.2d 457 (Tex.Cr.App.1977).

The applicant’s conviction for rape in cause 6096 in the 29th Judicial District Court of Palo Pinto County, in which judgment was rendered on June 3, 1964, is set aside. By virtue of the indictment pending in that cause, the applicant is remanded to the custody of the Sheriff of Palo Pinto County.

It is so ordered.

      . This sentence was subsequently commuted to life imprisonment.

      . The convicting court’s references to “Petitioner” mean the applicant, Leon Willis Johnston.
      “The word applicant, as used in this Chapter, refers to the person for whose relief the writ is asked, though the petition may be signed and presented by any other person.” V.A.C.C.P., Article 11.13.

      . This Court may take judicial knowledge of its own records in such matters. See Salinas v. State, 542 S.W.2d 864 (Tex.Cr.App.1976); Ex parte Flores, 537 S.W.2d 458 (Tex.Cr.App.1976).


author: ONION, Presiding Judge.

text:
    John Richard WILLIAMS, Jr., Petitioner, v. John L. PLACKE, Judge 21st Judicial District Court of Bastrop County, Texas, Respondent.
    No. 61629.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 3, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This action is brought seeking a writ of mandamus directing the Honorable John L. Placke, Judge of the 21st District Court of Bastrop County, to vacate his order of March 19, 1979, in which he refused to dismiss the indictment for possession of more than four ounces of marihuana pending against the petitioner.

Petitioner contends that he was not afforded a trial “within 120 days from the commencement of [the] criminal action [against]” him, as he is guaranteed under the provisions of the Speedy Trial Act, Article 32A, V.A.C.C.P. Our recent decision in Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979), however, renders petitioner’s contention meritless. Since an appeal is available to petitioner in the event of his conviction to test any possible denial to his right to a speedy trial, either on a statutory or constitutional basis, mandamus is not available to him to compel the discretionary action which is vested in the trial court pursuant to the provisions of the Speedy Trial Act, Article 32A, supra. Ordunez v. Bean, supra.

To this extent, petitioner’s contention is overruled and the application for writ of mandamus is denied.


author: DALLY, Judge.

text:
    Randy Glenn GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 61914.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 3, 1979.

      Kenneth Valka, on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Michael C. Kuhn, Doug Shaver and Tenny G. Wilson, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of capital murder. The punishment was assessed at death.

Appellant complains of the admission at the punishment stage of testimony concerning an extraneous offense and opinion testimony concerning appellant’s character. He also contends that the arguments of counsel at the guilt-innocence stage were improperly presented prior to the reading of the court’s charge to the jury, and the prosecutor violated appellant’s right to remain silent by commenting on his failure to call certain witnesses.

The evidence, which includes appellant’s written confession, establishes that on the night of June 28, 1976, appellant robbed and fatally beat Harold Robinson, the owner of a tavern in Baytown. During the same criminal episode, appellant raped and severely beat a female employee of the tavern.

On November 5,1976, appellant entered a plea of guilty in the circuit court of Yazoo County, Mississippi, to the offense of the murder of Beverly Clark on July 31, 1976. He was sentenced to imprisonment for life in the Mississippi Department of Corrections.

At the punishment stage of appellant’s trial, the State called as a witness William Jennings, a Yazoo County deputy sheriff. Appellant contends that the trial court erred in permitting Jennings to testify as follows:

“Q. Can you tell the members of the jury where you found the body of Beverly Ann Morris Clark?
“A. In a shallow ditch in Beach Hill Estates, Yazoo County.
“Q. What time on August 1st did you find her body?
“A. 4:15 p. m.
“Q. Can you tell the members of the jury what age Beverly Ann Morris Clark was?
“A. Eighteen.
“Q. What was she wearing, if anything?
“A. Nothing.
“Q. How was her body positioned when you first found it?
“A. She was laying face up in the ditch.
“Q. What injuries were evident or obvious to you when you found the body of the deceased, Beverly Ann Morris Clark?
“MR. BARNETT: If your Honor please, we object to that. He can’t say who put the injuries there. We don’t think a description of this body has anything to do with this particular case. We think it’s irrelevant and immaterial and being offered solely and only in prejudicing the jurors against this defendant.
“THE COURT: That objection is overruled.
“Q. (By Mr. Wilson) Deputy Jennings, could you tell the members of this jury what injuries you saw on the person of the deceased, Beverly Ann Morris Clark?
“A. The upper part of her body and head were dark, discolored, blue. The eyes were bugged out and her tongue was swelled out. There was blood and several holes across the upper part of her chest.”

Prior to this testimony, during voir dire examination of Jennings outside the presence of the jury, the trial court had sustained appellant’s objection to the introduction of photographs of Clark’s body, but overruled his objection to a verbal description of the body. This earlier objection was substantially the same as the objection voiced during Jennings’ testimony before the jury.

While appellant does not question the admissibility of the Mississippi offense, he contends that it was improper to permit the State to show the details of the offense, citing Lege v. State, 501 S.W.2d 880 (Tex.Cr.App.1973) and Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973). These cases involved the application of Art. 37.07, Sec. 3, V.A.C.C.P. Under Art. 37.071(a), V.A.C.C.P., which does apply to capital cases, the trial court is given wide discretion in admit ting and excluding evidence at the punishment stage insofar as the relevance of the evidence is concerned. Porter v. State, 578 S.W.2d 742 (Tex.Cr.App.1979). The trial did not abuse its discretion by admitting evidence that appellant had committed a similar murder approximately one month after the charged offense. Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979); Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979); Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979); Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). It was within the court’s discretion to refuse to admit the photographs but to admit the testimony.

Appellant contends that Jennings should not have been permitted to testify because the police reports on which his testimony was based were not made available to the defense, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant asserts that these reports would have contained information tending to impeach Jennings’ testimony.

At the pretrial hearing on appellant’s discovery motion, the trial court refused to order the immediate disclosure of the Mississippi police reports but ordered the State to have the reports available for inspection during the trial should they become material. Appellant expressed his satisfaction with this arrangement. The record reflects that appellant did not subsequently ask to examine and to use for cross-examination the police reports referred to by Jennings during his testimony, and did not object to his testimony on this ground. In the absence of a request by appellant to examine the police reports, constitutional error is presented only if there is a showing that undisclosed evidence exists which creates a reasonable doubt that did not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978). Appellant has made no such showing, nor is there any support in the record for his contention that the State suppressed the police reports. This ground of error is overruled.

Following his arrest in Mississippi, appellant was admitted to the Mississippi State Hospital at Whitfield for observation and testing. Two of the doctors who examined appellant during his six-week stay in the hospital were Donald Guild, Director of Forensic Psychiatry at the hospital, and Charl-ton Stanley, a staff psychologist. At the punishment stage, Guild and Stanley were questioned extensively concerning the opinions they had formed as a result of their examination of appellant. Among other things, both doctors testified that appellant was without psychosis and competent to stand trial, but that he had an anti-social or psychopathic personality. The doctors also testified, contrary to appellant’s defensive contention, that appellant’s conduct on the night of the Houston murder was not precipitated by his habitual heavy use of alcohol and that his conduct was deliberate. Both doctors stated that, in their opinion, it was probable that appellant would commit acts of violence in the future and be a continuing threat to society.

Appellant contends that the trial court erred in permitting Guild and Stanley to testify because the State refused to make available to the defense the records and reports on which the two doctors based their testimony, again citing Brady v. Maryland, supra. However, at no time did appellant object to Guild’s testimony on this ground. Appellant did raise this point in an objection during Stanley’s testimony, but the objection was directed to a specific question which was withdrawn by the State and which the jury was instructed to disregard.

Moreover, the record does not sustain appellant’s contention that the defense was denied access to the psychiatric reports. During his cross-examination of Stanley, appellant’s defense counsel asked for and was given the records from which Stanley testified, and a recess was taken in order to give counsel time to examine them. Stanley was cross-examined extensively from these records, and testified that they were the same records used by Guild in his earlier testimony. Appellant did not ask that Guild be recalled for further cross-examination. Appellant’s contention is without support in the record and is overruled.

Appellant also contends that Jennings, Guild, and Stanley should not have been permitted to testify because their names did not appear on the State’s list of witnesses. Again, appellant did not raise this objection in the trial court. Moreover, appellant neither requested that the witness list be included in the record nor objected to the record because of its exclusion. Nothing is presented for review.

Appellant contends that the trial court erred by permitting the arguments of counsel to be made prior to the reading of the charge. Art. 36.14, V.A.C.C.P. This contention is not supported by the record. The following entry appears on the docket sheet for November 14, 1977:

“Trial resumed at 1:05 P.M. . Court’s charge having been prepared and presented to counsel for both sides on Friday, November 11, 1977, was filed; no objections or exceptions to the charge were filed; at 1:25 P.M. charge was read to jury and each side was granted 45 minutes for argument; State waived opening and reserved right to close; defense argument began at 1:40 P.M. and concluded at 2:15 P.M. State’s argument began at 2:15 P.M. and concluded at 2:24 P.M. Jury retired to deliberate at 2:25 P.M. ...”

This ground of error is overruled.

Appellant’s final contention is that the prosecuting attorney commented on appellant’s failure to testify when he argued:

“Let me not also forget to tell you that the defense has subpoena powers in this case. They could have brought forth witnesses had they desired. Let me refer you to and got back to this confession and those names mentioned. They could have brought those in if those men had something different to say.”

This was a comment on appellant’s failure to call available witnesses, not on his failure to personally testify. See Lyles v. State, 582 S.W.2d 138 (Tex.Cr.App.1979). In addition, appellant did not object to this statement, and the error, if any, was not preserved. Earnhart v. State, 582 S.W.2d 444 (Tex.Cr.App.1979).

The judgment is affirmed.

ROBERTS, J., not participating.


author: ROBERTSON, Justice.

text:
    Joe Shelby SPILLMAN, Robert Frank Spillman, John Milton Spillman, Ruth Ann Ratliff, Mary Alice Sanders, and Judy L. Spillman, Appellants, v. ESTATE OF Amanda Alice SPILLMAN, Deceased, Appellee.
    No. 19959.
    Court of Civil Appeals of Texas, Dallas.
    July 27, 1979.
    Rehearing Denied Aug. 28, 1979.

      Reid A. Rector, Erhard, Cox & Ruebel, Dallas, for appellants.
    William Andress, Jr., Dallas, for appellee.
    Before AKIN, ROBERTSON and HUM-PHREYS, JJ.
   ROBERTSON, Justice.

This is a will contest. Proponents-appel-lees Ken Wallis and Republic National Bank of Dallas filed an application to probate the will of Amanda Alice Spillman. Contestants-appellants, the children of Amanda Spillman, filed a contest to this application alleging lack of testamentary capacity because of an insane delusion, undue influence because of a fiduciary relationship, and failure to actually sign and execute the will. Trial was to a jury, but at the close of the evidence the court sustained appellees’ motion for an instructed verdict on all of the issues except that of undue influence. The jury answered this issue adversely to appellants. We affirm.

Appellants’ first contention is that the trial court erred in refusing to submit appellants’ proposed issues on fiduciary relationship and undue influence. This latter issue included an instruction on fiduciary relationship. Appellants claim that the evidence raised this point and, thus, these issues should have been submitted. We disagree. If there is some evidence of fiduciary relationship, a presumption of undue influence is raised. Price v. Taliaferro, 254 S.W.2d 157, 163 (Tex.Civ.App.—Fort Worth 1952, writ ref’d n. r. e.); Rounds v. Coleman, 189 S.W. 1086 (Tex.Civ.App.—Amarillo 1916, no writ). The only effect of this presumption, however, is to establish the burden of producing evidence. A presumption is not evidence of something to be weighed along with the evidence. Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854 (1942); Armstrong v. West Texas Rig Co., 339 S.W.2d 69 (Tex.Civ.App.—El Paso 1960, writ ref’d n. r. e.). An issue on undue influence was submitted to the jury and answered adversely to appellants. This was all that appellants were entitled to, and the trial court did not err in refusing to submit appellants’ proposed special issues.

Appellants next argue that the trial court erred in instructing a verdict on the issue of whether the testatrix signed and executed her will on September 29, 1972. We disagree. The undisputed evidence reflects that the testatrix signed the will on September 29, 1972. Although there is some discrepancy between the way the pages were initialed and the testatrix’ signature, no real controversy exists regarding the actual signing of the will. Although the trial court properly instructed a verdict on this issue, the better practice would have been to submit this issue to the jury because if there had been evidence on appeal, the case could be rendered rather than reversed. See Cross v. City of Dallas, 581 S.W.2d 515, 516 (Tex.Civ.App.—Dallas 1979, no writ).

Appellants’ third contention is that the trial court erred in allowing certain lay witnesses to testify that decedent was of sound mind. We disagree. Although a lay witness cannot give an opinion about whether a person has testamentary capacity, he may testify that a person is of sound mind if a proper predicate is laid. Carr v. Radkey, 393 S.W.2d 806 (Tex.1965); Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454 (1941). To lay a proper predicate, it must be shown that the witness had sufficient personal contact with the decedent to reasonably form such an opinion from firsthand knowledge. Storey v. Hayes, 448 S.W.2d 179 (Tex.Civ.App.—San Antonio 1969, writ dism’d). A review of the record reveals that this predicate was laid and, thus, the trial court correctly allowed these witnesses to testify regarding the soundness of the testatrix’ mind.

Appellants also argue that there was sufficient evidence to submit the question of lack of testamentary capacity based on an insane delusion to the jury and that the trial court erred in instructing a verdict for appellee. We disagree. In Knight v. Edwards, 153 Tex. 170, 264 S.W.2d 692 (1954), the supreme court set up a two-pronged test defining insane delusion: (1) the belief of a state of supposed facts that do not exist; and (2) which no rational person would believe. This test was followed in Lindley v. Lindley, 384 S.W.2d 676 (Tex.1964), with the court explaining the second part of the test. The court held that to prove the second element, a party must show that an organic brain defect or a functional disorder of the mind existed. Lindley v. Lindley, 384 S.W.2d at 679.

The second paragraph of Amanda Spillman’s will contains her reasons for leaving only a small portion of her estate to her children. Paragraph Two states:

Over the years my children have used my property without paying rent or contributing to the expenses, and they have borrowed money from me which has never been repaid, and they turned their backs on me when I was in financial difficulty and in danger of losing my properties.

The record reflects that appellants rented property from the testatrix but that they paid rent for the usage of such property. There is also evidence to show that the testatrix was not destitute nor ever in any danger of losing her property. The record also demonstrates that the testatrix’ financial condition was sound and that she never failed to meet any of her financial obligations. It appears that a conflict exists between the state of facts set out in Paragraph Two of the will and the facts adduced at trial thus satisfying the first requirement for an insane delusion. No evidence exists, however, to show that the testatrix suffered from any mental disorder. As the court in Knight stated:

But the fact that there is evidence that Mrs.. Lockhart was laboring under a false belief or a delusion does not necessarily mean that there is evidence that she was the victim of an insane delusion. A delusion and an insane delusion as that term is defined in law, are altogether different mental conditions. 264 S.W.2d at 695.

At most, the evidence illustrates that the testatrix was mistaken in her belief regarding her children. There is no evidence in the record to show that the testatrix’ belief could not have been entertained by a rational person under the circumstances. Thus, the evidence is not sufficient to raise the issue of insane delusion, and the trial court properly instructed a verdict on the issue of testamentary capacity.

Finally, we feel compelled to comment on the method used by the trial court to submit this case to the jury. The trial court granted appellee’s motion for an instructed verdict on the issues of testamentary capacity, of whether the testatrix actually signed and executed the will, and of whether the testatrix signed and executed the will with the formalities required by law. Nevertheless, the court submitted these issues to the jury with answers favorable to appellee and with instructions from the court that these answers were required by the evidence. No need existed for the judge to submit these issues and answers upon which he had instructed a verdict. The appropriate way of submitting this case would have been to submit only the special issues required to be answered by the jury. The method of submission used in this case might be a comment by the trial judge on the credibility of the witnesses and on other evidence because the same testimony and evidence may be relevant to what the jury is required to answer as well as the issues on which the judge instructs an answer in his charge.

Affirmed.