author: DALLY, Judge. ROBERTS, Judge, PHILLIPS, Judge,

text:
    Gerald WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 53528.
    Court of Criminal Appeals of Texas, En Banc.
    May 24, 1978.

      Richard Thornton, Galveston, for appellant.
    Ronald L. Wilson, Dist. Atty. and Jack C. Brock, Asst. Dist. Atty., Galveston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of murder; the punishment is imprisonment for 50 years.

A written statement, which the appellant made while in custody and out of the presence of his retained counsel, was admitted in evidence. The appellant urges that the trial court committed reversible error in admitting that statement in evidence, because he did not waive his right to have counsel present when the statement was made, and therefore the statement was obtained in violation of constitutional re-' quirements of the Sixth Amendment to the Constitution of the United States as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

On December 10,1974, the body of Celes-tine Williams, the appellant’s wife, was found in their home in Texas City. On December 11th, the appellant learned that he had been charged with the murder of his wife and he contacted Richard Thornton, an attorney. Thornton ascertained that a warrant for the arrest of the appellant had been issued; the appellant, accompanied by Thornton, surrendered himself in the Sheriff’s office in Galveston. Thornton told the Sheriff’s Chief Deputy, W. J. Whitburn, and other officers who were present that he represented the appellant and that he did not want the appellant, who he said was ill and on medication, interrogated unless he was present to represent him. There is no evidence that the officers agreed to Thornton’s demand. Thornton did not talk to any Texas City officers.

At 11:55 a. m. on December 11th, Texas City Police Sergeant Deril Oliver took custody of the appellant from the Galveston County Sheriff’s office. Oliver advised the appellant of his rights as required by Art. 38.22, V.A.C.C.P. and Miranda v. Arizona, supra. The appellant was taken by Oliver to Texas City, where they appeared before a magistrate at 12:50 p. m. The magistrate advised the appellant of his rights as provided by Art. 15.17, V.A.C.C.P. At 1:03 p. m. the appellant was again advised of his rights by Oliver and signed a form acknowledging the same. Oliver testified that after the appellant read and signed the form he was questioned until 1:45 p. m. Oliver stated that because the appellant was emotionally upset and crying he was placed in a cell. At 5:00 p. m. the appellant was taken to Oliver’s office and Oliver resumed questioning the appellant concerning the death of his wife. Oliver personally typed the appellant’s statement as appellant answered Oliver’s questions. When the typing was completed, Oliver read the appellant’s statement to him, including the advice concerning the constitutional rights printed at the top. Oliver also gave the appellant an opportunity to read the statement. The appellant then signed the statement at 7:05 p. m.

Appellant testified that after he was advised of his rights by the magistrate he was taken to a room at the Texas City police station and interrogated by two policemen. Appellant stated that he told the policemen that his attorney did not want him to make a statement unless the attorney was present. He said he asked to call his attorney but the policemen would not let him and told him that his attorney would not mind if he signed a statement. Appellant testified that one officer grabbed him by the shirt collar and pulled him up. He said he was frightened and crying and that he signed the statement after “they kept harassing me.” Appellant said the officer told him he would be there all night until he made a statement and that he could not have his medication. He stated that the officers did not hit him or promise him anything but that he signed the statement because he was being harassed.

Sgt. Oliver testified that he was informed by officers in the Sheriff’s office that the appellant was represented by Thornton. Oliver stated that at no time did the appellant request to see his attorney or ask to use the telephone, and that he never mentioned his medication. Oliver said the appellant discussed the case freely with him and appeared to be coherent and normal. Oliver testified that he did not strike or abuse the appellant in any manner, and that he did not threaten the appellant or promise him anything. Sgt. Stanley, who was identified by the appellant as the other officer present during the questioning, testified that he was not present when a statement was taken from the appellant. He stated that he never grabbed the appellant by the shirt collar or told him he had to make a statement.

The trial court made written findings of fact that the appellant had been advised of his constitutional rights prior to giving the police his statement. The court found that appellant’s confession was not obtained by threats, persuasion, compulsion, intimidation, violence, or promises, and that the statement was the appellant’s free and voluntary act. These findings are supported by the evidence. The appellant argues that his right to cut off questioning was not “scrupulously honored” by the police and that he did not waive his right to have his attorney present during questioning. Appellant cites and relies upon Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); and Hearne v. State, 534 S.W.2d 703 (Tex.Cr.App.1976).

In Michigan v. Mosley, supra, Mosley was arrested in connection with several robberies and advised of his rights in accordance with Miranda v. Arizona, supra. Mosley acknowledged that he understood his rights, told the detective that he did not want to answer any questions about the robberies, and the interrogation was stopped. Over two hours later another detective again advised Mosley of his rights and questioned him about an unrelated murder. Mosley then made statements that were used against him in the murder trial. The Supreme Court discussed the portion of the Miranda opinion that states that “the interrogation must cease” when the person in custody indicates that “he wishes to remain silent.” The Supreme Court declined to interpret this passage either to require a blanket prohibition against further interrogation once an accused indicates he wishes to remain silent or to allow the continuation of custodial interrogation after a momentary cessation. The Court concluded that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” The Court held that the second detective’s questioning about an unrelated homicide was consistent with a reasonable interpretation of Mosley’s earlier refusal to answer any questions about the robberies, and that the statements were admissible.

The fact situation in the present case is quite different from that presented in Michigan v. Mosley, supra. Appellant’s testimony is the only evidence that appellant told Oliver he did not want to talk with him. Attorney Thornton testified that he told two Sheriff’s officers that he did not want the appellant questioned without him being present, but the record does not reflect that the Sheriff’s officers conveyed the information to Oliver, a Texas City policeman. Oliver, on cross-examination by Thornton, testified as follows:

“Q. And he (appellant) did not tell you he didn’t want to make a statement?
“A. At no time did he say he didn’t want to make a statement.
“Q. Just voluntarily came out with it?
“A. He was discussing the case freely, yes, sir.”

The appellant’s lengthy confession is two and a half pages long. Approximately one page directly concerns the events on the day of the shooting; the remainder of his statement tells about injuries the appellant suffered while working, his relationship with his wife, the deceased, and his attempts to commit suicide. This evidence strongly corroborates Oliver’s testimony that the appellant freely discussed the case.

It is clear that where the facts are in dispute on the voluntariness and admissibility of a confession, the trial judge, as the trier of the facts, can accept or reject all or any part of the testimony of any witness, including a defendant. McKittrick v. State, 541 S.W.2d 177 (Tex.Cr.App.1976), and cases cited therein. We hold that there was sufficient evidence for the trial court to conclude that the appellant waived his right to remain silent and to admit the statement in evidence.

In Hearne v. State, supra, the evidence was uncontradicted, and the officer freely admitted that he persuaded the defendant “bit by bit to change his mind” and talk with him after the defendant had told the officer he did not want to talk with him. The Hearne decision is not controlling under the facts of this case.

The Supreme Court recently discussed the issue of whether an accused waived his right to have his attorney present during questioning by police officers in Brewer v. Williams, supra. Williams was arrested in Davenport, Iowa for abducting a ten-year-old girl in Des Moines, Iowa. Two attorneys advised Williams not to make any statements until after he consulted with his attorney upon being returned to Des Moines. The police officers who were to transport Williams back to Des Moines by automobile agreed not to question him during the trip. Williams expressed no willingness to be interrogated without his attorney being present and told the officers several times that he would tell the whole story after seeing his Des Moines lawyer. One of the officers, who knew Williams was a former mental patient and deeply religious, obtained incriminating statements and evidence by stating to him during the trip that he felt they should stop and locate the girl’s body because her parents were entitled to a Christian burial for the girl, who was taken away from them on Christmas eve. The Supreme Court held that the policeman’s “Christian burial speech” was tantamount to interrogation and was designed to obtain incriminating statements after Williams had indicated that he did not want to make any statements until he had conferred with his lawyer in Des Moines.

In the case at bar the appellant conferred with his attorney prior to surrendering himself. Attorney Thornton told the Sheriff’s officers that he did not want appellant interrogated without him present. The record does not reflect whether the Sheriff’s officers relayed this information to Sgt. Oliver. Appellant testified that he told Oliver that he did not want to make any statements without his attorney present. He also testified that during the questioning he asked to call his attorney but was refused. Oliver disputed this testimony. He admitted that he knew the appellant had an attorney but stated that after the appellant was advised of his rights numerous times he never requested to see his lawyer or to use the telephone.

Brewer v. Williams does not hold that an accused cannot waive his right to have counsel present during questioning once he is represented by counsel. The Court specifically said that it did not hold that under the circumstances of the case Williams could not have waived his rights without notice to counsel; it only held that Williams did not waive his right to have counsel present during questioning. The fact that an attorney advises his client to remain silent or not make any statement without him present does not mean that the accused can never thereafter intelligently and knowingly waive those rights. Caraway v. State, 489 S.W.2d 106 (Tex.Cr.App.1971). See also Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974), and McKittrick v. State, supra.

There is no doubt that appellant knew he had the right to have his attorney present during questioning, having been so advised at least four times, including once by a magistrate. Indeed, he had conferred with his attorney prior to surrendering to the Sheriff. That there is no evidence the appellant explicitly waived his right to counsel does not preclude a finding that he knowingly, intelligently, and voluntarily waived that right. Moreno v. State, 511 S.W.2d 273 (Tex.Cr.App.1974); Thomas v. State, 458 S.W.2d 817 (Tex.Cr.App.1970); Easley v. State, 448 S.W.2d 490 (Tex.Cr.App.1970). We conclude that under the totality of the circumstances the State has proven “an intentional relinquishment or abandonment of a known right” and that the appellant waived his right to remain silent and his right to have counsel present during questioning. The Court did not err in admitting appellant’s confession into evidence.

Appellant contends the court erred in failing to submit his timely requested charge on the law of circumstantial evidence. The deceased was found dead by several relatives in the bedroom of her home. The autopsy revealed that she died at approximately 5:00 p. m. on December 9, 1974. There were at least five separate bullet wounds in her body caused by .22 caliber bullets. The cause of death was a bullet wound to the heart. A .22 caliber revolver was found wrapped inside a blue jacket on the dresser in the bedroom. The revolver contained six empty cartridges.

The appellant not only gave a statement to Oliver but he also testified in his own behalf at the trial. Omitting parts not necessary to our discussion, appellant’s statement reads as follows:

“On Monday the 9th day of December 1974 I picked her (deceased) up from St. Mary’s where she works and she rode to the house with me. She was going to get some things for her daughter and while we were at the house we looked at some bills and was talking. I tried to talk her into coming back home and she got mad and told me to stop pressuring her about coming home. We were in the master bedroom when the phone rang and she got up to answer it. I saw her take her pistol out of the night stand drawer. I wasn’t sure what she was going to do until she pointed it at me and pulled the trigger. The gun snapped and did not fire and at this time I began struggling with her. I don’t remember exactly what happened after that but I do remember I layed the pistol down on a blue jacket which was on the dresser. I got my medicine and got into my car and drove to Houston. I left a note on the coffee table which I wrote on Saturday the 7th day of December. I put a lot of reasons in the note and I even mentioned about once having the crabs which we had a big fuss about. I wrote one other note but then I tore it up. I had been trying to get her to come back to me but she would always get mad when I mentioned it.
“When I arrived in Houston after the shooting I stayed for awhile and then my brother Wilbur brought me back to Galveston where I turned my self in to the Sheriffs Office. The note I wrote Saturday the 7th of December is the same one the police found at my home and the pistol used belonged to my wife and it was given her by her ex-husband who is a policeman in Galveston.
“The next morning (December 9) I picked her up and drove her to work and then I picked her up from work and took her to my house. A little while later is when the trouble happened. I think the trouble happened around 5:00 p. m. but I am really not sure.” (Emphasis added.)

Appellant testified in his own behalf at the guilt-innocence phase of the trial. On direct examination appellant testified that the deceased pointed the pistol at him and pulled the trigger but that the gun did not go off. He stated, “I remember getting to her and she and I started tussling with the gun and after that I don’t know what happened.” Appellant said that he did not recall shooting his wife. He said that if he did shoot her, he did so accidentally. During cross-examination the appellant testified concerning his jealousy towards the deceased. The prosecutor then asked the appellant, “Is that why you shot her?” Appellant replied, “No, that’s not why I shot her.”

A charge on circumstantial evidence need not be given where there is evidence of an admission of the accused that he killed the deceased. Knight v. State, 538 S.W.2d 101 (Tex.Cr.App.1975); Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974); Hogan v. State, 496 S.W.2d 594 (Tex.Cr.App.1973); Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App.1973). Direct testimony from any source that the accused was an actor in bringing about the death of the deceased characterizes the case as one of direct and not circumstantial evidence. Smith v. State, 470 S.W.2d 696 (Tex.Cr.App.1971). Where the only element proved by circumstantial evidence is that of intent, no charge upon circumstantial evidence is required. Smith v. State, supra. While the appellant’s confession may not be a full admission of the offense of murder, when appellant’s written statement and his testimony at trial are considered together, we find that a charge on circumstantial evidence was not required. Steel v. State, 459 S.W.2d 649 (Tex.Cr.App.1970); Hogan v. State, supra.

This case may be distinguished from Gamboa v. State, 528 S.W.2d 247 (Tex.Cr.App.1975), and Ellis v. State, 551 S.W.2d 407 (Tex.Cr.App.1977). Gamboa did not involve a confession of the defendant’s participation in the offense. In Ellis, the defendant was charged as a party to the offense, under V.T.C.A. Penal Code, Sec. 7.02, and in his written statement did not admit doing any acts that would have made him criminally responsible for the conduct of the actual killer.

The court did not err in refusing to submit to the jury a charge on circumstantial evidence.

Appellant contends the trial court erred in sustaining the State’s objection to testimony concerning conversations related to Oliver by Galveston County Sheriff’s officers. Appellant complains of the following ruling by the trial court during his cross-examination of Oliver:

“Q. [By Mr. Thornton]: The Galveston County Sheriff’s Department had informed you that he had been surrendered by me with me as his counsel?
“THE STATE: Your Honor, at this point, we are going to object to what may have been told tó Sgt. Oliver as being hearsay.
“THE COURT: Sustain the objection.
“MR. THORNTON: Note our exception, Your Honor. I think I have already had—
“THE COURT: You may cross-examine him, Mr. Thornton.
“MR. THORNTON: All right.”

Questions by Mr. Thornton continued:

“Q. Anyway, on the 11th of December of 1974, at about eleven o’clock a. m., you knew that the defendant had been voluntarily surrendered to the Galveston County Sheriff’s Department?
“THE STATE: Your Honor, once again, we object to that as only calling for a hearsay answer which he has previously stated.
“THE COURT: Sustain the objection.
“MR. THORNTON: Note our exception, Your Honor.
“Hearsay to whom, Judge?
“THE COURT: Sir, I sustain the objection.”

Appellant admits in his brief that “Ultimately, on extended cross-examination, the witness finally admitted the truth of these matters.” Where evidence is excluded, but the same testimony is later admitted, this Court has consistently held such exclusion does not require reversal. Hays v. State, 480 S.W.2d 635 (Tex.Cr.App.1972); Preston v. State, 481 S.W.2d 408 (Tex.Cr.App.1972). Even if appellant’s argument and theory are correct, the error, if any, in sustaining the State’s objection was harmless.

Appellant contends the court erred in allowing the State to cross-examine the appellant’s father with “have you heard” questions during the punishment phase of the trial. Specifically, appellant is complaining of the following question by the State:

“Q. Let me ask you, sir, whether or not you have heard that on June the 14th, 1967, your son was arrested for the offense of assault with intent to murder?
“MR. THORNTON: Your Honor, we object to that question based upon the Hill’s case.
“THE COURT: Based upon what?
“MR. THORNTON: Hill v. State, your Honor. There has been no question related to this defendant about the reputation inviting any matter to be brought into evidence, your Honor, such as this to invite the final conviction of any felony.
“THE STATE: Your Honor, it’s the contention of the State that the defendant has opened and placed his character and reputation by having the father testify that he has been a good man; that he has given him no trouble. We should be able to cross-examine this particular witness by mentioning any prior arrests.
“THE COURT: Overrule the objection.
“MR. THORNTON: Note our exception, Your Honor.”

Thereafter, the appellant’s father was permitted to answer the question and he stated that he had heard of the incident.

During direct examination the appellant’s father testified that appellant had never been convicted of a felony offense and asked the jury to grant his son probation. Appellant’s counsel also brought out the following testimony on direct examination:

“Q. Mr. Williams, has Gerald been a good boy up to this time?
“A. Yes, he has never given me any trouble.
“Q. Never given you and your wife any trouble?
“A. Never has.
“Q. Has he obeyed you, generally?
“A. Yes.
“Q. Mr. Williams, you know quite a bit about Gerald Williams, don’t you?
“A. Ido.”

The testimony elicited on direct examination by appellant in the case is almost identical to the testimony in Childs v. State, 491 S.W.2d 907 (Tex.Cr.App.1973). In Childs the defendant’s father was asked, “Q. And has his conduct been good since he has been there while he has been there at home? A. Really has.” In analyzing this testimony the Court said:

“True, appellant’s counsel did not use the ‘magic words,’ does your son have a general reputation of being a peaceful and law abiding citizen in the community in which he resides, in questioning the witness. However, an examination of the record clearly indicates that the entire tenor of the elder Childs’ testimony was geared toward persuading the jury to grant appellant probation by showing them his good character and law abiding habits. Appellant may not have a witness testify about his good character traits but avoid ‘placing his reputation in evidence’ simply by not specifically asking whether appellant enjoyed a good reputation in the community.”

Cf. Els v. State, 525 S.W.2d 11 (Tex.Cr.App.1975). The Court did not err in permitting the cross-examination.

Appellant also argues under this ground of error that the State’s question was so framed as to imply that the appellant had committed the offense; however, no objection was voiced on this complaint in the trial court. In order to preserve error, if any, on appeal, appellant’s objection must be the same as that raised in the trial court. See Elizaldi v. State, 519 S.W.2d 881 (Tex.Cr.App.1975); Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974). Moreover, the question was properly framed.

Appellant’s last contention is that “[t]he Trial Court erred in his actions against Defendant’s counsel with reference to the blackboard and the attempted use thereof by defense counsel in front of the jury.” Appellant does not point out where in the record this alleged error occurred. He makes no argument in support of the ground and cites no authority. This ground is not in compliance with Article 40.09, Sec. 9, Y.A.C.C.P.; nothing is presented for review.

The judgment is affirmed.

ROBERTS, Judge,

dissenting.

Although I concur with the dissenting opinion of my Brother Phillips, I also dissent from the majority’s disposition of the appellant’s contention that he was entitled to a charge on circumstantial evidence.

It is well settled that direct evidence is that evidence which directly demonstrates the main fact to be proved. Circumstantial evidence, on the other hand, is that evidence which directly proves a secondary fact which, by logical inference, demonstrates the main fact. Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973). In Ransonette v. State, 550 S.W.2d 36, 42 (Tex.Cr.App.1976) (Opinion on the Appellant’s Motion for Rehearing), this Court stated:

“A charge on circumstantial evidence is required only where the evidence of the main fact essential to guilt is purely and entirely circumstantial. See e. g. Wilson v. State, 154 Tex.Cr.R. 59, 225 S.W.2d 173 (1949). A charge on circumstantial evidence is necessary only when the State’s case depends entirely upon circumstances for conviction. See e. g. Nailing v. State, 152 Tex.Cr.R. 161, 211 S.W.2d 757 (1948); Wells v. State, 134 Tex.Cr.R. 412, 115 S.W.2d 658 (1938). An instruction as to circumstantial evidence need not be given where the State relies only in part on circumstantial evidence, Lawler v. State, 110 Tex.Cr.R. 460, 9 S.W.2d 259 (1927); Coleman v. State, 90 Tex.Cr.R. 297, 235 S.W. 898 (1921), even though the State relies on a chain of circumstances that may be considered the major part of the evidence on which the State relies for conviction. Dodd v. State, 149 Tex.Cr.R. 156, 192 S.W.2d 263 (1946). See 31 Tex. Jur.2d 682-683, Instructions, See. 123; Morris v. State, 402 S.W.2d 161 (Tex.Cr.App.1966); Russell v. State, 396 S.W.2d 117 (Tex.Cr.App.1965).” Id. at 43.

In the present case, the main fact to be proved was that the appellant murdered his wife. The only evidence, aside from the appellant’s inadmissible confession, which can even arguably be classified as direct evidence, is contained in the following portion of the majority opinion:

“Appellant testified in his own behalf at the guilt-innocence phase of the trial. On direct examination appellant testified that the deceased pointed the pistol at him and pulled the trigger but that the gun did not go off. He stated, T remember getting to her and she and I started tussling with the gun and after that I don’t know what happened.’ Appellant said that he did not recall shooting his wife. He said that if he did shoot her, he did so accidentally. During cross-examination the appellant testified concerning his jealousy towards the deceased. The prosecutor then asked the appellant, ‘Is that why you shot her?’ Appellant replied, ‘No, that’s not why I shot her.’ ”

The majority has apparently classified the foregoing as direct evidence. This was illogical and erroneous.

The appellant’s statement that he remembered getting to his wife and “tussling” with the gun and that after that he did not “know what happened” was direct evidence that there was an altercation between the appellant and his wife; it is not direct evidence that the appellant murdered his wife. Furthermore, the appellant’s statement that he did not remember what happened after the altercation is not direct evidence of anything except a poor memory-

Moreover, the appellant’s statement that if he did shoot his wife, it was accidental is not direct evidence of anything. In light of the appellant’s testimony that he could not remember shooting his wife, this statement by the appellant was conjecture at best. Likewise, the appellant’s testimony “concerning his jealousy towards the deceased” is not direct evidence that the appellant shot his wife.

The final aspect of the appellant’s testimony which the majority relies upon is the prosecutor’s question, “Is that why you shot her?” and the appellant’s response, “No, that’s not why I shot her.” Immediately before this question and answer, the following occurred:

“Q Didn’t you think, during this period of time, that she was going out with somebody else?
“A Like I stated, I was jealous of her.
“Q The question was: Did you not think during this period of time, that she was going out with somebody else?
“A Yes.
“Q You still think at this time she was going out with somebody else?
“A I don’t know.”

The prosecutor’s question is ambiguous. It can be construed in either of two ways. First, the question can be construed to be two questions in one: (1) Did the appellant shoot his wife; and (2) Did he shoot his wife because he thought she was going out with another man. Second, the question can be construed to assume that the appellant shot his wife while asking for the reason he shot her. In either situation, the appellant’s answer can hardly be construed to be an admission that he shot his wife. I cannot conclude that the appellant’s answer to the prosecutor’s question is direct evidence of the main fact to be proved. Nor can I conclude that all of the foregoing facts are direct evidence that the appellant murdered his wife. At best, they are facts from which the jury could have inferred that the appellant murdered his wife. Beyond any doubt, these facts were circumstantial evidence, not direct evidence.

Therefore, it becomes apparent that if the appellant’s confession had been excluded, there was a complete absence of direct evidence that the appellant murdered his wife. A circumstantial evidence charge was thus required and the trial judge committed reversible error by failing to submit the appellant’s requested charge on the law of circumstantial evidence to the jury.

For the foregoing reasons, I dissent.

PHILLIPS, Judge,

dissenting.

The majority opinion finds that the appellant had waived his Fifth Amendment right to remain silent and his Sixth Amendment right to have counsel present during questioning. I cannot agree.

The testimony reveals that appellant voluntarily surrendered to the Galveston County Sheriff’s Department accompanied by his attorney, Mr. Richard Thornton. At that time, Mr. Thornton advised Captain Whitburn and other officers present that he represented the appellant. Thornton further informed the officers that appellant was ill and under several types of medication. He told the officers that he did not want the appellant interrogated unless he was present during the questioning. That the officers agreed to this demand is supported by Thornton’s own testimony and the fact that no Galveston law enforcement officer attempted to question the appellant.

Appellant was later transferred to the Texas City Police Department by Sgt. Deril Oliver. Oliver testified that he was aware that appellant was being represented by Mr. Thornton. He further stated that appellant had not at any time requested to see his attorney or use the telephone. Appellant, on the other hand, testified that he had told Sgt. Oliver that his attorney did not want him to make a statement unless the attorney was present. He stated that the officers would not allow him to call Mr. Thornton and that one of the officers had grabbed him by the collar and pulled him out of his chair. He did say that the officers did not strike him or promise him anything, but that the officers told the appellant he would be there all night without his medication if he did not make a statement.

Oliver and appellant both testified that when Oliver first interrogated the appellant he was emotionally upset to the point that he was crying. Oliver testified that he had appellant taken back to his cell for four hours before the questioning continued. Appellant, however, stated that the interrogation had been continuous up until the time he signed the statement.

There can be no serious doubt in the present case that Officer Oliver deliberately set out to elicit incriminating information from appellant. Oliver was fully aware before he left Galveston and during every minute of the interrogation that appellant was being represented by Mr. Thornton. Yet in the face of this knowledge, Oliver admitted that he continued to interrogate the appellant. His reasons can best be illustrated from his testimony on cross examination by Mr. Thornton:

“Q Do you recall me asking you why in the world you were taking a statement from a person you knew I was representing?
A Yes sir.
Q Yes, your answer wasn’t your answer to the effect that you had a job to do and you were going to do it regardless?
A I think I said something like I was obligated to make the best possible case and I am obligated to use every illegal means available to do it.
Q Regardless of whether he had an attorney or anything else, is that correct?
A I could care less if he had two lawyers.
Q That’s right, you could care less?
A That’s exactly right.”

This indicates a clear disregard for the appellant’s right to have his counsel present during the interrogation.

In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), the United States Supreme Court, in comparing that case to Massiah v. U. S., 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1963), stated that “ . . . the clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.”

Of course, the majority in the instant case recognized appellant’s right to have counsel present, but felt that appellant had waived that right. The burden of proving waiver is with the State. And, that burden is onerous as this Court stated in McKittrick v. State, 541 S.W.2d 177, 183 (Tex.Cr.App.1976):

“Miranda, of course, teaches that a heavy burden rests upon the prosecution to prove that a person in custody ‘knowingly and intelligently’ waived his privilege against self-incrimination and his right to retained or appointed counsel, 384 U.S. at 475, 86 S.Ct. at 1628.
The determination of whether there has been such an intelligent waiver must depend upon the particular facts in each case, including the background, experience, and conduct of the accused. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Thus, courts must approach the question of waiver in each case on an ad hoc basis. Narro v. United States, 370 F.2d 329, 330 (5th Cir.1966). See also McCandless v. State, 425 S.W.2d 636, 640 (Tex.Cr.App.1968).”

The record reflects conflicting testimony between Oliver and appellant as to whether appellant had asserted his right to counsel. In face of this conflicting testimony plus the officer’s knowledge that appellant was represented and Oliver’s statements that he “could care less” if appellant was represented pointed up the fact that there was no waiver of appellant’s Sixth Amendment right to counsel.

The majority seems to rely on the fact that the record does not show that the agreement not to interrogate appellant made by the Galveston County Sheriff’s Office was communicated to Sgt. Oliver. On the other hand, the record does not show that the agreement was not relayed to Oliver.

If the agreement had been relayed to Oliver, we are faced with a factual situation almost identical to that in Brewer, where Mr. Justice Stevens stated in his concurrence:

“If, in the long run, we are seriously concerned about the individual’s effective representation by counsel, the State cannot be permitted to dishonor its promise to this lawyer.”

If the agreement had not been communicated to Oliver, we are faced with a far more difficult question. Are we to allow law enforcement officials to circumvent an accused’s Sixth Amendment right to counsel by shuffling him back and forth until he is in the hands of the an officer who is unaware of a prior commitment made to the accused’s attorney? See Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1964); Massiah v. U. S., supra. Such a policy would effectively deny an attorney the opportunity to stop interrogations unless he was present. That such a policy should not be adopted is graphically illustrated in a situation where the accused is under medication, is ill, or is in any way incapacitated to the point that he might not be able to continuously urge his right to counsel in the face of police interrogation. An attorney representing a client with this incapacity should be able to preclude any interrogation without his presence.

In the instant case, the appellant was under several types of medication and was emotionally distraught. Realizing his client’s inability to assert his own constitutional rights, Mr. Thornton, the appellant’s attorney, told the Galveston Police Officers that he did not want the appellant interrogated. in his absence. The Galveston authorities acquiesced in this request.

In view of these circumstances, the State has not borne its burden of showing that the appellant’s rights were “scrupulously honored”, nor have they shown a waiver of the appellant’s right to counsel. See Hearne v. State, 534 S.W.2d 703 (Tex.Cr.App.1976); Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); McKittrick v. State, supra.

For these reasons, I respectfully dissent.

ONION, P. J., and ROBERTS and W. C. DAVIS, JJ„ join.


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    Harry BARRON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 54285.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 7, 1978.
    Rehearing en banc Denied June 28, 1978.

      John R. McFall and Jack R. Chappell, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., and Warren G. Tabor, Jr., Asst. Dist. Atty., Lubbock, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

Harry Barron, Jr., appeals from his conviction for the offense of murder. Punishment was assessed by the jury at thirty years.

He contends that the evidence is insufficient to sustain his conviction, either as the actual perpetrator of the offense or as a party, and that the court erred in submitting a charge to the jury on the law of parties inasmuch as such a charge allowed the jury to convict appellant upon a theory unsupported by the evidence.

On the morning of February 8, 1975, the body of Henry Guzman was found by Lubbock County Sheriff’s officers on a farm-to-market road in Lubbock County. Dr. Adolph Orina, who performed the autopsy on the body of Guzman, testified that the deceased had suffered multiple gunshot wounds. Death was caused by massive bleeding resulting from the entry of a bullet into the heart.

On February 7, 1975, the deceased returned home from work, ate and went out to purchase a car which he brought home later in the evening. The deceased took a shower and went outside his home at approximately 9:30 p. m. to inspect the new automobile. At that time appellant, Joe David Pina and Guadalupe Pina drove by and asked the deceased if he wanted to accompany them to the county line to drink beer. Guzman agreed. No arguments took place and no harsh words were uttered.

Falecia Florez testified that on February 7, 1975, she operated a beer and pool hall outside the Lubbock city limits. On that night, at approximately 10:00 p. m., she saw the deceased and three other men come into her establishment. She knew one of the deceased’s companions to be the appellant, Harry Barron.

The State’s chief witness, Guadalupe Pina, testified that he saw the appellant and his brother Joe David Pina, at a parking lot while he was on a date; that he separated from his girlfriend and joined his brother and appellant; and that he got into his brother’s red and white Ford convertible and, at appellant’s direction, drove to the home of Henry Guzman.

After picking up the deceased, Pina drove the group to Falecia Florez’ beer hall where they remained until after midnight. Pina further stated that after leaving Florez’ he continued to drive his brother’s Ford along various country roads outside Lubbock. During this period the deceased and appellant engaged in friendly conversation about a car they had planned to fix. After driving for approximately an hour, Pina stopped the car. At this time appellant occupied the front passenger seat and Joe David Pina and the deceased occupied the rear seat. Guadalupe Pina remained in the driver’s seat. Appellant opened the right car door and the deceased and Joe David Pina got out of the vehicle. Pina testified that he heard mumbling, followed by four gunshots in quick succession. Appellant and Joe David Pina got back into the car but did not appear to be in a hurry. The deceased did not return. A trail of blood was discovered leading from where the car was parked approximately fifteen feet to the spot where his body was found.

Following the murder, Guadalupe Pina drove appellant and Joe David Pina back to town; he did not ask what had happened in the darkness. On the way back to Lubbock nothing was said among the men. Appellant appeared perfectly calm and unagitat-ed. Pina was on parole from a life sentence for a murder conviction. Apparently he was attempting to prevent a revocation of his parole and at the same time not incriminate appellant and Joe David Pina any more than he felt compelled to do. It is highly probable that he knew more than he revealed to the jury.

The evidence, when construed in a light most favorable to the State, is sufficient to support appellant’s conviction as a party to the offense. There being no direct evidence of appellant’s guilt, his conviction is founded upon circumstantial evidence. Such a conviction may be sustained if the circumstances exclude every other reasonable hypothesis except that of the guilt of the accused. Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977); Dixon v. State, 541 S.W.2d 437 (Tex.Cr.App.1976); Easley v. State, 529 S.W.2d 522 (Tex.Cr.App.1975); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969); Ysasaga v. State, 444 S.W.2d 305 (Tex.Cr.App.1969); Freels v. State, 151 Tex.Cr.R. 589, 210 S.W.2d 582 (1948).

A defendant is guilty as a party where he is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. Baldridge v. State, 543 S.W.2d 639 (Tex.Cr.App.1976); Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976); Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974). The jury could have found appellant guilty as a party whether he aided in the actual commission of the offense or not. Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976); Bush v. State, supra, citing Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046 (1920); Lombardo v. State, 503 S.W.2d 780 (Tex.Cr.App.1974). Moreover, it was permissible for the jury, in determining whether appellant participated as a party, to look to events occurring before, during and after the commission of the offense as well as to actions of the parties which show an understanding and common design to murder the deceased. Ex parte Prior, supra; Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975); Bush v. State, supra.

The evidence adduced by the State essentially shows that appellant was in the company of the deceased in the evening and early morning hours preceding his death; that the deceased was picked up at his home at appellant’s direction; and that without having to be verbally told to do so, Guadalupe Pina stopped the car on the shoulder of a country road whereupon appellant silently got out of the car and Joe David Pina methodically followed. Appellant and Pina occupied seats which blocked the deceased’s ingress and egress from the car; by exiting the car simultaneously they were able to force the deceased out of the vehicle. Mumbling was heard followed by gunshots, whereupon appellant and Pina immediately returned to the car but the deceased did not. Finally, the record reflects that throughout this entire violent transaction and the return to Lubbock after the murder appellant and the Pina brothers remained totally calm, unagitated and silent.

The evidence excludes every other hypothesis except that the deceased was murdered by either the appellant or Joe David Pina. It is, moreover, conceded that appellant was present at the commission of the offense. This is in itself a circumstance which tends to prove that one is a party. Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App.1974). The only question for this Court is whether, presuming that Joe David Pina fired the shots that actually killed the deceased, sufficient evidence existed from which the jury could conclude that appellant aided, abetted, or encouraged the commission of the offense.

Each of the crucial events leading up to and following the murder allegedly occurred in total silence, yet the actions of both appellant and Joe David Pina appear to have been remarkably well-coordinated. It was reasonable for the jury to conclude that such smoothly synchronized transactions could not have occurred in the absence of an understanding and prior agreement by appellant to encourage or abet and thereby facilitate Joe David Pina’s commission of the offense. These circumstances, taken with the fact that it was at appellant’s instigation that the deceased was picked up and taken drinking, and the fact that he was present at the offense, are sufficient to support appellant’s conviction as a party. Torres v. State, 491 S.W.2d 126 (Tex.Cr.App.1973); Childress v. State, 465 S.W.2d 947 (Tex.Cr.App.1971); Locke v. State, 484 S.W.2d 918 (Tex.Cr.App.1972). See and compare, Flores v. State, 491 S.W.2d 144 (Tex.Cr.App.1973); Gonzales v. State, 171 Tex.Cr.R. 373, 350 S.W.2d 553 (1961); Allen v. State, 150 Tex.Cr.R. 283, 200 S.W.2d 1021 (1947).

He next contends that it was error for the court to instruct the jury on the law of parties. Appellant reasons that since there was no evidence that Joe David Pina actually shot the deceased there was likewise no evidence upon which the jury could have concluded that appellant aided, abetted or encouraged Pina’s commission of the offense as a party.

We disagree with the contention that no evidence existed which implicated Joe David Pina in the offense. On the contrary, the evidence conclusively established that either Joe David Pina or appellant or both defendants shot the deceased. If, as he asserts, appellant did not fire the fatal shots, such shots could only have been fired by Joe David Pina. It would have been to appellant’s advantage for the jury to presume that Pina was the one who actually perpetrated the offense. The issue was thus raised that the conduct of the appellant was not sufficient in and of itself to sustain a conviction but was, instead, dependent upon the conduct of another. Under such circumstances, the law of parties should be submitted. McCuin v. State, 505 S.W.2d 827 (Tex.Cr.App.1974).

No error is shown. The judgment is affirmed.


author: PHILLIPS, Judge.

text:
    Delfino M. VITELA, Appellant, v. The STATE of Texas, Appellee.
    No. 56149.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 14, 1978.
    William L. Rivers, County Atty., Perry-ton, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation wherein appellant was convicted of driving while intoxicated, subsequent offense; the punishment, two years confinement in the Department of Corrections.

Although the record before us contains a transcription of the court reporter’s notes, no brief was filed in the trial court in appellant’s behalf, pursuant to Article 40.-09, Section 9, Vernon’s Ann.C.C.P., and none has been filed in this Court. A review of the record indicates that an issue of indigency exists in this case.

On January 19, 1977, the State filed a motion to revoke appellant’s probation alleging a violation of several terms and conditions of probation. A warrant for appellant’s arrest was issued the same day. On February 14, 1977, appellant executed an affidavit of inability to employ counsel and requested the court to appoint an attorney to represent him. The trial court appointed the Honorable Bruce Roberson to represent appellant in this cause on February 14, 1977. The order appointing counsel states that “The Honorable Bruce Roberson, an attorney practicing at the Bar of this Court be, and is hereby appointed to represent said defendant and to defend him in this cause of action and to handle the appeal of this casé to the Court of Criminal Appeals.” Likewise, on February 14, 1977, the trial court conducted a hearing on the State’s motion to revoke probation, appellant having waived the time allowed by law to prepare for trial upon such motion. At the conclusion of the hearing the trial court entered an order revoking appellant’s probation. A motion for new trial was filed on February 18, 1977, which was overruled on March 14, 1977, the date appellant was sentenced to serve not less than two nor more than two years in the Texas Department of Corrections. The docket sheet reflects that notice of appeal was given on March 14, 1977.

The trial court’s order overruling appellant’s motion for new trial dated March 14, 1977, also indicates that appellant excepts and gives notice of appeal. While it is impossible to determine from the record whether a notice of appeal was given prior to sentencing and therefore premature, we conclude from the docket entry that notice of appeal was given in a timely fashion.

A written notice of appeal prepared by appellant’s court-appointed counsel was filed on March 25,1977,11 days after appellant was sentenced. This notice of appeal contains the following:

“. . . Comes Now the defendant in the above styled and numbered cause by and through his attorney of record at the trial of this cause, the Honorable Bruce Roberson, and would respectfully show the court, that although the defendant has not finally communicated to the undersigned, his desire to appeal his conviction in this cause to the Court of Criminal Appeals of the State of Texas, the undersigned does believe that said defendant does wish to appeal his cause to the Honorable Court of Criminal Appeals of the State of Texas, and therefore files this notice of appeal to the Honorable Court of Criminal Appeals of the State of Texas. The undersigned does, however, want the record to affirmatively reflect that the undersigned has not been retained as counsel for the defendant for the appeal, but in the abundance of caution, has given this notice of appeal to allow the defendant an opportunity to arrange for counsel to handle the appeal . . .”

The docket entry by the trial judge on March 14, 1977, reflects the following:

“Defendant sentenced to two years TDC motion for new trial overruled. Defendant gives notice of appeal. Court determines that defendant is not indigent and he is advised to hire his own counsel.”

Notice of completion of the record in this cause was sent to Bruce Roberson, appellant’s court-appointed counsel at trial, on June 2, 1977. On June 3, Roberson informed the court by letter that although he gave notice of appeal at the time of sentencing, appellant had not been in contact with him to retain his services to perfect an appeal. Roberson also stated that he had attempted to notify appellant on two occasions, but that his attempts had been unsuccessful.

The record was approved without a hearing on June 27,1977. Again, Roberson was notified of this fact and was advised by the clerk that he had 30 days from the 27th of June in order to file a brief. On July 8, 1977, Roberson filed a motion to withdraw as counsel stating that he had made repeated attempts to contact appellant regarding the appeal but had been unable to contact him and that he was not retained to handle the appeal in the cause. The motion to withdraw as counsel was granted on July 11, 1977, prior to the time appellant’s brief was due to be timely filed. No brief has been filed in this case and the record was received on September 14, 1977.

It is settled that the Texas and United States Constitutions require that an indigent defendant is entitled to the effective assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975). Furthermore, the decision of the Supreme Court of the United States in Anders v. California, supra, requires that court-appointed counsel file a brief in appellant’s behalf. In the instant case, no brief has been filed and the issue presented is whether appellant is indigent on appeal and entitled to court-appointed counsel in order to protect appellant’s rights on appeal.

While the docket notation in this cause indicates that on March 14, 1977, the date of sentencing, the court determined that appellant was not indigent and that he was advised to hire his own counsel, the record is devoid of any information of the hearing on indigency which would enable this Court to determine whether there was an abuse of discretion by the trial court in denying appellant court-appointed counsel on appeal. See Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972). Furthermore, we note that the original order entered on February 14, 1977, which appointed counsel to represent appellant at the revocation proceeding also appointed counsel to defend appellant in this cause of action and to handle the appeal of this case to the Court of Criminal Appeals. The notice of completion of the record and notice of approval of the record were sent to the same counsel. The fact that appellant’s court-appointed counsel filed an untimely notice of appeal in which counsel indicated that he had not been retained as counsel for the defendant on appeal and counsel’s action in filing a motion to withdraw after the record had been approved on the grounds that counsel had not been retained to handle the appeal in this cause are not relevant to the issue of whether appellant was in fact indigent for purposes of appeal. In Hicks v. State, 544 S.W.2d 424 (Tex.Cr.App.1976) the appeal was abated in order that a transcription of the court reporter’s notes of the hearing on indigency would be provided to appellant in order that he would have appellate review of the court’s order denying the relief requested in his pauper’s oath in which appellant requested a free record of the hearing in which he was determined not to be indigent. While appellant has made no personal effort in order to obtain a record which would show that the trial court abused its discretion in denying him a free transcription of the court reporter’s notes, appellant has been effectively abandoned for appellate purposes by court-appointed counsel in the cause. Counsel stated in the notice of appeal and motion to withdraw as counsel that he had been unable to contact appellant but the indication was that counsel had not been retained to handle the appeal. Consequently, appellant’s court-appointed counsel withdrew from the case, prior to filing a brief in appellant’s behalf.

Due to the confusing state of the record in which it is impossible to determine whether appellant was not indigent as stated by the court or whether the initial order of the court appointing counsel through the appeal should be honored, we have concluded that the appeal should be abated. As stated in Hicks v. State, supra:

“If a defendant is to have full appellate review in accordance with Griffin [Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891] and Article 40.09, Section 5, supra, it follows that he is entitled to have an appellate court review of the court’s adverse determination on a hearing on the defendant’s pauper’s affidavit in which a' free record is requested for appeal.”

Unlike Hicks, however, the statement of facts in this cause has been prepared and forwarded to the Court. Appellant has, however, not been afforded assistance of a counsel on appeal, and we are unable to determine whether the trial court’s order allowing the withdrawal of appellant’s court-appointed counsel constitutes an abuse of discretion without a supplementation of the record as to facts pertaining to appellant’s indigency.

We therefore abate this appeal in order that the trial court may cause the record to reflect the basis of the docket entry in which it was stated that appellant was not indigent and should employ his own counsel.

It should be further noted that, during the proceedings in order to clarify the record, the court can determine whether appellant still desires to appeal. See Lessing v. State, 509 S.W.2d 356 (Tex.Cr.App.1974). If, however, appellant is found to be indigent, and still desires to appeal, the appeal should be returned to this Court subsequent to the filing of appellate briefs.

The appeal is abated.


author: W. C. DAVIS, Judge.

text:
    Michael Luther YORK, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57953-57960.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 14, 1978.

      Larry M. Cunningham, Arlington, for appellant.
    Henry Wade, Dist. Atty., J. T. Langford, James D. Burnham, and Reed Prospere, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

Appellant brings these appeals from eight convictions for burglary of a habitation. On January 25, 1977, in cause numbers F-76-6974QK, F-77-431K, F-77-432K and F-77-433K (our cause numbers 57,953; 57,955; 57,956 and 57,957), appellant entered pleas of guilty before a jury, which assessed his punishment at seventeen years in the Texas Department of Corrections in each case.

On February 10, 1977, appellant entered pleas of guilty before the trial court in cause numbers F-76-10381 HK, F — 77— 908K, F-77-909K and F-77-910K (our cause numbers 57,954; 57,958; 57,959 and 57,960). His punishment was assessed by the court at seventeen years confinement. All sentences were to run concurrently.

Appellant urges three grounds of error. In his first ground of error, he contends that there was fundamental error in the court’s charge to the jury during the January 25th hearing before the jury on punishment. He contends that since the jury was not charged that it should not assess appellant’s punishment by lot, or by averaging the total number of years suggested by each juror, the charge was fundamentally erroneous and he was thereby deprived of due process and equal protection. This contention is without merit.

Appellant did not object to this omission in the charge as required by Article 36.14, Vernon’s Ann.C.C.P. Thus, only fundamental error in the court’s charge will be considered on appeal. Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974); Peterson v. State, 508 S.W.2d 844 (Tex.Cr.App.1974).

This Court may not reverse a conviction for any error or omission in the charge unless such error or omission was “calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” Article 36.19, Vernon’s Ann.C.C.P.

In the instant ease, appellant complains of the omission of an admonitory instruction to the jury. The giving of admonitory instructions by the trial court, in order to guard against jury misconduct, is within the sound discretion of the trial court. Williams v. State, 511 S.W.2d 64 (Tex.Cr.App.1974); Hernandez v. State, 169 Tex.Cr.R. 418, 334 S.W.2d 299 (1960); see also, Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977); Fitzsimmons v. State, 471 S.W.2d 858 (Tex.Cr.App.1971). Since the failure of the trial court to give this admonitory instruction was not error, much less fundamental error, appellant’s contention is overruled.

Appellant next contends that in his January 25th trial on punishment before the jury the trial court erred in admitting evidence of the circumstances of each of the four offenses to which he pled guilty. The record reflects that each of the four owners of the burglarized premises testified as to how they discovered the burglary, what property was stolen, which items were recovered and the aggregate value of their respective property losses. Appellant asserts in his brief that he objected to the introduction of this evidence; the record reflects no such objection. Therefore, appellant’s failure to object waives any complaint as to the admissibility of such evidence. Stutes v. State, 530 S.W.2d 309 (Tex.Cr.App.1975); Cortez v. State, 520 S.W.2d 764 (Tex.Cr.App.1975).

Further, even had appellant preserved this issue for review, there was no error in the admission of evidence concerning the circumstances of the offenses to which appellant entered pleas of guilty. A plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt; the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them to assess the penalty. Brown v. State, 487 S.W.2d 86 (Tex.Cr.App.1972); Alexander v. State, 479 S.W.2d 44 (Tex.Cr.App.1972).

The State’s right to introduce evidence is not restricted by the entry of a plea of guilty by the defendant, or by his admission of facts sought to be proved; relevant facts admissible under a plea of not guilty are also admissible under a plea of guilty. Morgan v. State, 557 S.W.2d 512 (Tex.Cr.App.1977); Asay v. State, 456 S.W.2d 903 (Tex.Cr.App.1970). The evidence complained of was clearly admissible at this hearing on punishment. Appellant’s second ground of error is overruled.

In his third ground of error, appellant contends that the evidence is insufficient to sustain his convictions in cause numbers F-76-10381 HK, F-77-908K, F-77-909K and F-77-910K (our cause numbers 57,954; 57,958; 57,959 and 57,960). Appellant entered pleas of guilty to these offenses before the trial court on February 10, 1977. This ground of error is without merit.

In numbers F-76-10381 HK, F-77908K, and F-77-909K (our cause numbers 57,954; 57,958 and 57,959), the State introduced into evidence signed judicial confessions by appellant, in which he admitted all of the elements of the offenses of burglary of a habitation. These judicial confessions, standing alone, are sufficient to support the convictions. Jiminez v. State, 552 S.W.2d 469 (Tex.Cr.App.1977); Byrom v. State, 528 S.W.2d 224 (Tex.Cr.App.1975); Araiza v. State, 491 S.W.2d 116 (Tex.Cr.App.1973).

In cause number F-77-910K (our cause number 57,960), the State introduced into evidence a judicial confession signed by appellant. However, the confession stated that he,

“did intentionally and knowingly enter a habitation consent of Robert W. Leiske, the owner thereof, with intent to commit theft.”

This confession does not admit all of the necessary elements of the offense, since it omits part of the clause “without the effective consent [of the owner].” Thus, a necessary element of the offense was not established by this confession. V.T.C.A., Penal Code, Sec. 30.02. The evidence offered to support this conviction is insufficient.

Appellant’s testimony and admissions at the time of offering the guilty plea are also insufficient to prove this element of the offense. Nowhere did he state that the allegations in the indictment were true, Adam v. State, 490 S.W.2d 189 (Tex.Cr.App.1973); Miles v. State, 486 S.W.2d 326 (Tex.Cr.App.1972), nor did he admit each element of the offense while testifying. Spruell v. State, 491 S.W.2d 115 (Tex.Cr.App.1973). He only admitted that he was guilty as he stated in his confession. Since the confession here did not set out all of the necessary elements of the offense, his affirmation of his confession was not sufficient to prove the necessary elements under Sec. 30.02, V.T.C.A. Penal Code.

Therefore, we conclude that the evidence is insufficient to support the conviction in cause number 57,960. See Griggs v. State, 558 S.W.2d 474 (Tex.Cr.App.1977); Mears v. State, 529 S.W.2d 78 (Tex.Cr.App.1975).

The judgments in numbers F — 76-6974QK, F-76-10381 HK, F-77-431K, F-77-432K, F-77-433K, F-77-908K, F-77909K (our cause numbers 57,953; 57,954; 57,955; 57,956; 57,957; 57,958 and 57,959) are affirmed.

The judgment in cause number F-77910K (our cause number 57,960) is reversed and remanded.

      . See Article 40.03(3), Vernon’s Ann.C.C.P. (Grounds for New Trial in Felony).


author: ROBERTS, Judge.

text:
    Vernon JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 58600.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 14, 1978.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

Appellant was convicted by a jury for aggravated robbery. The jury assessed punishment at imprisonment for 15 years.

The record is before us without a transcription of the court reporter’s notes. No brief was filed in the trial court pursuant to Art. 40.09(9), Vernon’s Ann.C.C.P., and none has been filed here. Nevertheless, we must reverse the judgment below, because the trial court, in applying the law to the facts in his charge to the jury, authorized them to convict appellant on a theory not alleged in the indictment. See Art. 40.-09(13), Vernon’s Ann.C.C.P.

The indictment alleged that appellant committed the offense of aggravated robbery under V.T.C.A., Penal Code, Secs. 29.-02(a)(2) and 29.03(a)(2). In pertinent part it alleged that appellant did, “while in the course of committing theft, knowingly and intentionally place Marietta Jo Mosley in fear of imminent bodily injury by exhibiting a deadly weapon, namely, a handgun, with intent to obtain control of money of the United States, the property of Marietta Jo Mosley, without her effective consent and with the intent to deprive her of her property, . . . .”

In its charge to the jury the trial judge authorized the jury to convict appellant not only if it found that appellant committed aggravated robbery under Secs. 29.02(a)(2) and 29.03(a)(2), but also allowed them to convict appellant if they found he committed aggravated robbery under V.T.C.A., Penal Code, Secs. 29.02(a)(1) and 29.03(a)(1). In applying the law to the facts, the trial court instructed the jury as follows:

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 10th day of July, 1977, in Gregg County, Texas, the Defendant, VERNON JONES, with intent to deprive Marietta Jo Mosley, the owner, of her personal property, to-wit, money belonging to said owner, did unlawfully appropriate or unlawfully attempt to appropriate from Marietta Jo Mosley said money belonging to Marietta Jo Mosley, and that the Defendant, in so doing, and with intent to obtain or maintain control of said money, then and there intentionally, knowingly, or recklessly caused bodily injury to said Marietta Jo Mosley, or the Defendant then and there intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that the Defendant, in committing the foregoing acts, if you do so find, caused serious bodily injury to Marietta Jo Mosley or that, Defendant used or exhibited a deadly weapon, to-wit, a handgun, then you will find the Defendant guilty of aggravated robbery as charged in the Indictment.”

Under our recent decisions in Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977), and Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977), the trial court’s charge, which authorized a conviction for either of the two different modes of committing aggravated robbery when only one was alleged, constituted reversible error. See also Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976); Johnson v. State (Tex.Cr.App., decided April 12, 1978); Cleland v. State (Tex.Cr.App., decided April 12, 1978).

The judgment is reversed, and the cause is remanded.