author: DANIEL, Justice. SAM D. JOHNSON, Justice,

text:
    FIRST STATE BANK OF BEDFORD, Texas, Petitioner, v. Macile MILLER, Individually and as Executrix, Respondent.
    No. B-6863.
    Supreme Court of Texas.
    March 1, 1978.

      Hooper, Kerry, Chappell & Broiles, R. David Broiles and Charles W. Combs, Fort Worth, for petitioner.
    Staples & Foster, Ross T. Foster, Hurst, for respondent.
   DANIEL, Justice.

This is a usury case in which a borrower sought statutory penalties and the lender counterclaimed for interest. A note for $70,000 payable in three years, with interest payable annually at ten percent per annum, was alleged to be usurious because the lender advanced only $56,000 on the loan. It held the remaining $14,000 in a non-interest bearing account to satisfy postdated checks for the first two years’ interest. After a non-jury trial, judgment was rendered against the borrower and in favor of the lender. The Court of Civil Appeals reversed and rendered, holding the transaction to be usurious. 551 S.W.2d 89. We affirm the judgment of the Court of Civil Appeals with a modification hereinafter indicated.

The controlling facts are undisputed. In the latter part of 1971, O. W. Miller and wife, Macile, were selling a tract of land they owned in Tarrant County and purchasing a tract in Johnson County. The transactions, including financial arrangements, were being handled for them by Andy Winters, a broker and real estate agent. As partial consideration for the Tarrant County sale, Winters arranged for the Millers to receive a long-term vendor’s lien note in the sum of $219,800. Simultaneously, in order to retire a debt on the Tarrant County property and to obtain funds for improvements on the Johnson County land, Winters arranged for the Millers to borrow the $70,-000 in question from the defendant, First State Bank, Bedford. All negotiations for the loan were conducted by Winters with Blease Tibbets, President of the defendant bank. Tibbets had knowledge of the details of the proposed simultaneous land transactions in December of 1971. He was named as trustee in the deed of trust securing the Millers’ $219,800 note on the Tarrant County land. Tibbets agreed with Winters to recommend to his bank the $70,000 loan to the Millers if they would (1) assign their $219,800 note to the bank as security, (2) obtain a satisfactory “take-out letter” whereby a responsible third party would advance money to pay the note if it was not paid at the end of three years, and (3) leave in the bank under “escrow” or “freeze” $14,000 for payment of the first two years’ interest. The proposed loan was approved by the loan committee of the bank on January 6,1972, with the above conditions noted on the Loan Work Sheet.

The $70,000 was deposited to the joint checking account of O. W. Miller and Macile Miller on January 7, 1972, after Andy Winters had delivered to the bank the $70,000 note dated January 6, 1972, signed by the Millers; the assignment dated January 6, 1972, from the Millers to the bank covering their $219,800 vendor’s lien note on the Tarrant County land; and the required “take-out” letter dated January 4, 1972. Pursuant to the terms of the loan agreement, the Miller bank account was “frozen” on January 12, 1972, as to the $14,000, and on January 14, Mr. Miller-came to the bank and signed the following letter prepared by Mr. Tibbets:

“January 14, 1972
“First State Bank
P.O. Box 699
Euless, Texas
“Gentlemen:
“I hand you herewith two checks signed by me on my account # 160-202-8. Each check is in the amount of $7,000.00, one is dated January 4, 1973 and one January 4, 1974. These checks represent interest which will be due your bank on the above date on my note with your bank in the amount of $70,000.00 dated January 6, 1972.
“This will be your authority to hold amounts sufficient to cover these checks and put a freeze on my account # 160-202-8 to accomplish same.
“Sincerely,
“Otis W. Miller”

Mr. Tibbets conceded that the $14,000 remained in the non-interest bearing account of the Millers; that this sum was comingled with the bank’s own funds and loaned to other customers; and that the Millers had no access to the $14,000 for any purpose other than satisfaction of the postdated interest cheeks.

The first check for $7,000 dated January 4, 1973, was paid to the bank from this frozen account. On March 3, 1973, before the second check was payable, O. W. Miller died. That check has not been cashed. On March 27, 1973, Macile Miller qualified as independent executrix of her husband’s estate. Thereafter, she filed this suit, individually and as independent executrix, against the bank for penalties under the usury statutes and other relief. On February 17, 1975, while this suit was pending, the Ryan Mortgage Company agreement was exercised. The Company loaned Mrs. Miller $70,000, with which she paid the bank note. Without prejudice, she also paid $7,000 into the registry of the court to cover any interest which may have been due for the third year of the loan. The $7,000 for interest on the second year of the note (covered by postdated check of January 4, 1974) remains frozen in Mrs. Miller’s account in the defendant bank. The trial court, after holding the loan to be non-usurious, awarded these two $7,000 sums to the bank on its counterclaim for $14,000 in unpaid interest.

The Court of Civil Appeals held as a matter of law that $56,000 was the true amount of the principal advanced; that the $21,000 in interest contracted for and charged by the bank was usurious; that the bank was not entitled to any recovery on its counterclaim; that Mrs. Miller was entitled to a judgment for penalties in the sum of $42,000, recovery of the $7,000 on deposit with the court and the $7,000 frozen in her bank account, together with an additional $14,000 for interest theretofore paid to the bank. We agree with this judgment, except as to the latter $14,000.

Applicable Statutes and Cases

Article 16, Section 11 of the Texas Constitution, as Amended November 8, 1960, authorized the Legislature to “define interest and fix maximum rates of interest.” Pursuant thereto, the Legislature defined interest as “the compensation allowed by law for the use or forbearance or detention of money . . . and enacted the following relevant statutes, effective on October 1, 1967:

“Article 5069-1.04. Limit on rate
The parties to any written contract may agree to and stipulate for any rate of interest not exceeding ten percent per annum on the amount of the contract; and all other written contracts whatsoever, except those otherwise authorized by law, which may in any way, directly or indirectly, provide for a greater rate of interest shall be subject to the appropriate penalties prescribed in this Subtitle.”

Article 5069-1.06 provides in pertinent part:

“(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.”

The bank argues that the total interest provided for by the note ($21,000) should be spread over the entire three-year term under the rule of Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046 (1937), as recently applied by this Court in Tanner Development Company v. Ferguson, 561 S.W.2d 777 (Tex.1977). We agree that the Nevels rule of “spreading” is applicable to this three-year note. If the true principal sum of the loan had been $70,000, the $21,000 interest charge would not have been usurious. However, there is another equally well established rule in Nevels that requires the test for usury to be applied to the net amount of money of which the borrower had use, detention or forbearance. In Nev-els, the stated amount of the note was $6,400 payable in five years, but the lender withheld from the cash proceeds of the loan $320 as a fee for making the loan. This Court treated the actual principal of the loan as $6,080 in determining whether the interest charged was a sum greater than such principal debt would produce at 10% per annum during the time for which the borrower had use of the money. As to this rule we wrote on motion for rehearing in Tanner, supra:

“. . in cash loan transactions from which the lender deducts interest, fees, commissions or other front-end charges, the amount of dollars actually received or retained by the borrower is held to be the ‘true’ principal. In such cases the amount of the stated principal is reduced accordingly in testing for usury. . . .”

Since the Millers had use of only $56,000 of the stated loan, that amount should be considered as the “true” principal. The maximum lawful yield on that amount at 10% per annum for three years would be $16,800. This is $4,200 less than the $21,000 contracted for and charged. Thus, the interest was usurious, and the Court of Civil Appeals properly held that Mrs. Miller was entitled to recover penalties in the sum of $42,000.

The Bank’s Arguments to the Contrary

The bank challenges this result on the grounds that the Court of Civil Appeals erred in holding (1) that there was a $14,000 “freeze” agreement as a condition precedent to making the loan and (2) that the bank did in fact contract for, charge or receive interest in excess of the maximum lawful rate.

We have carefully considered the evidence most favorable to the judgment of the trial court for the bank and have failed to find any probative evidence on the controlling issues which would support its findings and judgment. There is evidence that the “freeze” was not fixed on the ledger sheets until January 12, 1972, from which the bank says it could be inferred that the freeze of the $14,000 was not agreed to at the inception of the loan on January 6,1972. There is also evidence that the freeze was Mr. Miller’s own idea, and that he entered the agreement of his own accord on January 14, 1972. However, it is undisputed that this “escrow” or “freeze” requirement was a condition made by the bank loan committee and noted on its Loan Work Sheet on January 6, 1972. In any event, the test for alleged usury is not concerned with which party might have originated the usurious provisions. Tanner Development Company v. Ferguson, supra.

All of the above evidence and all other material testimony in this case came from the bank president, Mr. Tibbets. Transposed to narrative form, his testimony included the following undisputed admissions:

The loan was for Mr. and Mrs. Miller and Mr. Winters was negotiating the terms of it . ..On January 6, I indicated the method of payment of the interest. I wrote on there [the Loan Work Sheet] that we were going to escrow $14,000. The purpose of that escrow was in order to pay, have the interest money available when the interest came due in January ’73 and ’74. The escrow payment that I had there is the one that’s subsequently reflected in the letter executed by Mr. Miller on the 14th day of January, 1972 . ..I would not have made the loan without that assurance, either this or some other . . .. No, I would not have made the loan without that letter and those two postdated checks freezing the $14,000 in the account . I put the freeze on there on my own [before the letter of January 14] just because he had told me what he was going to do, sir, and we were trying to expedite the closing and we just went ahead and closed it prior to his completing what he had agreed to do . at all times after January 12th there was a freeze ... at least $14,000.00 in that account was frozen . . .. That $14,000 was a part of the general deposits at the bank ... it actually constituted lendable funds to other borrowers and was most probably loaned out to other borrowers during 1972 . . .. For those loans to other borrowers the bank certainly charged and collected interest .. Between January 12, 1972 and January 12th, 1973, the Millers had absolutely no access to that $14,000.

In view of this undisputed evidence, the trial court erred in not holding as a matter of law that the Millers had use of only $56,000 of the loan and that the bank’s contract for and charge of $21,000 for three years’ interest was in violation of Article 5069-1.06. We overrule the bank’s contention that the Court of Civil Appeals erred in so holding and in reversing the trial court on these points.

Recovery of Interest Payments

By counterclaim, the bank sought to recover as interest the two $7,000 sums, one of which was deposited with the court and the other being deposited in Mrs. Miller’s account at the bank. Mrs. Miller denied the claim, alleging that the interest was usurious and therefore not subject to recovery. Since the interest contracted for was usurious, the bank was not entitled to recover it. Wall v. East Texas Teachers Credit Union, 533 S.W.2d 918 (Tex.1976). In reversing the judgment of the trial court, the Court of Civil Appeals properly rendered the judgment which the court below should have rendered, that the bank take nothing on its counterclaim and that the two $7,000 deposits be paid to Mrs. Miller. We overrule the bank’s contention that the pleadings and appellate procedures were insufficient to support such action by the Court of Civil Appeals.

As heretofore indicated, we do not agree with that part of the judgment of the Court of Civil Appeals which awarded Mrs. Miller an additional $14,000 as a recovery of usurious interest paid. Mrs. Miller did not plead for recovery of any interest paid. Such a claim was not tried by consent nor was it presented by Mrs. Miller on appeal. The Court of Civil Appeals, on its own motion, added this award “to effectuate the intent of the usury statute.” A party may not sustain a favorable judgment on an unpleaded cause of action which was not presented to the trial court or in the Court of Civil Appeals. Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183 (Tex.1964); State v. J. M. Huber Corporation, 145 Tex. 517, 199 S.W.2d 501 (1947).

Neither do we agree that recovery of interest paid is authorized as an additional forfeiture penalty under Article 5069-1.-06(1), which provides that any person who “contracts for, charges or receives” usurious interest “shall forfeit to the obligor twice the amount of interest contracted for, charged or received . . . .” Section (1) of Article 5069-1.06 does not so provide. Section (2) of the same Article, relating to any lender “who contracts for, charges or receives interest which is in excess of double the amount of interest allowed by this Subtitle shall forfeit as an additional penalty, all principal as well as interest and other charges . . If the Legislature had intended the additional penalty of forfeiture of interest paid under Section (1), it would have been a simple matter to have so stated, as in Section (2). The changes made by the Legislature in the successor Articles 5069-1.04 and 5069-1.06 are obvious.

The reasoning of the Court of Civil Appeals in adding this recovery of interest paid, although not sought in Mrs. Miller’s pleadings, was stated: “To effectuate the intent of the usury statute, the interest payment should be returned to Mrs. Miller before she recovers twice the interest charged, so that the net effect is a forfeiture of twice the interest charged.” It based this reasoning on a statement in Wall v. East Texas Teachers Credit Union, supra, a case which was not in any manner comparable on this particular point. In Wall, no interest had been paid, but the lender was affirmatively seeking payment of the usurious interest. It was erroneously awarded to him as an offset against the borrower’s recovery of twice the interest contracted for. Our principal holding in Wall was that the lender cannot recover unpaid interest under a usurious contract. The case, of course, did not involve any attempt by the borrower to recover interest, because he had paid none. A correct interpretation of Wall and Article 5069-1.06 on this point was made by the Court of Civil Appeals in Ferguson v. Tanner Development Co., 541 S.W.2d 483, 495 (Tex.Civ.App.1976), but it allowed common law recovery of the alleged usurious interest, a claim therefor having been specifically sought in the pleadings of the payor. The holdings on this point were not reached in this Court, because the case was reversed and rendered on other points. 561 S.W.2d 777 (1977). We have no such common law point or pleadings before us in the present ease, and therefore express no opinion thereon.

Since provisions for forfeitures and statutes of a penal nature are to be strictly construed, we hold that twice the amount of usurious interest contracted for, charged or received is the maximum that may be recovered by an obligor under the provisions of Article 5069-1.06(1).

Accordingly, the judgment of the Court of Civil Appeals is modified by eliminating therefrom the paragraph on page 2 which orders that Macile Miller recover from the First State Bank, Bedford, Texas, the additional sum of $14,000. As so modified, the judgment of the Court of Civil Appeals is affirmed.

Dissenting opinion by SAM D. JOHNSON, J., in which STEAKLEY and McGEE, JJ., join.

SAM D. JOHNSON, Justice,

dissenting.

This dissent is respectfully submitted.

This writer agrees with the greater part of the majority opinion. Under the section entitled “Recovery of Interest Payments,” the majority correctly recites that the lender Bank is clearly not entitled to recover the two seven thousand dollar sums, one of which was deposited with the court and the other being deposited in Mrs. Miller’s account with the Bank, for under the unequivocal writings of this court the sums represent usurious interest. Wall v. East Texas Teachers Credit Union, 533 S.W.2d 918 (Tex.1976).

However, the majority then continues by holding that usurious interest actually paid by the borrower to the lender under the usurious contract is never recoverable under Article 5069-1.06, Texas Revised Civil Statutes Annotated:

“Neither do we agree that recovery of interest by the payor is authorized as an additional forfeiture penalty under Article 5069-1.06(1), which provides that any person who ‘contracts for, charges or receives’ usurious interest ‘shall forfeit to the obligor twice the amount of interest contracted for, charged or received . . .’ Section (1) of Article 5069-1.06 does not so provide. Section (2) of the same Article, relating to any lender ‘who contracts for, charges or receives interest which is in excess of double the amount of interest allowed by this Subtitle shall forfeit as an additional penalty all principal as well as interest and other charges . ..’ If the Legislature had intended the additional penalty of forfeiture of interest paid under Section (1), it would have been a simple matter to have so stated, as in Section (2).”

What the majority would therefore hold in the instant ease is that (1) unpaid usurious interest may not be recovered by the lender, (2) usurious interest on deposit in the lender’s bank under a “freeze order” may not be retained by the lender, and (3) usurious interest deposited in the registry of the court may not be recovered by the lender. But, in any instance where the usurious interest has actually been received by the lender, the lender may retain such interest even though payments may have been made through ignorance, mistake, or fear.

Such a result is, in effect, an application of the pari delicto approach in construing usurious contracts. This approach was not utilized in Texas prior to the enactment of Article 5069-1.06, and the Legislature has specifically rejected such an approach in its Declaration of Legislative Intent for this Act. The courts, whether acting under statute or common law, have generally taken one of two approaches to usurious contracts: (1) the pari delicto approach; or (2) the “victim” approach. The pari delicto theory proceeds under the premise that a usurious contract is illegal or is one under which there is no liability to pay. As such, interest paid under the usurious contract with knowledge of the facts is not recoverable. On the other hand, the “victim” approach does not regard the borrower and lender as being on equal footing in negotiating the usurious contract. This approach allows recovery of usurious interest paid, holding that the lender has taken advantage of the necessities of the victim. See 59 A.L.R.2d 522 and cases cited therein.

Prior to the enactment of Article 5069-1.-06, the Texas courts specifically rejected the pari delicto approach in Bexar Building & Loan Ass'n v. Robinson, 78 Tex. 163, 14 S.W. 227 (Tex.1890). There is no indication that this posture has been relaxed in Article 5069-1.06; on the contrary, the Legislature has most adamantly advocated the “victim” approach. The Declaration of Legislative Intent recognizes that “[m]any citizens of our State are being victimized and abused in various types of credit and cash transactions. These practices impose a great hardship upon the people of our State.” 15 Texas Revised Civil Statutes Annotated, at 1. Accordingly, to effectuate the pari delic-to approach in the instant case is to fail to accurately comport with the legislative intent in enacting Article 5069-1.06.

Furthermore, the majority opinion’s interpretation of Article 5069-1.06 reaches an inequitable if not unconstitutional result. It imposes the penalty for usurious interest unequally. The lender who exacts payment of all or part of the usurious interest places himself in the position of being, under the interpretation by the majority, penalized less than the lender who has received no payment of usurious interest. Although both lenders, under the statute, are to sustain a forfeiture of twice the usurious interest, the lender who has obtained all or partial payment of the interest is not required to refund such amount; therefore, in effect, his penalty is offset by the interest payments received. Indeed, in instances where ail the interest has been paid by the borrower, one half (or fifty percent) of the legislatively required forfeiture is eliminated. Accordingly, borrowers are placed on different footings depending on whether or not they have actually paid usurious interest. Furthermore, the present interpretation by the majority allows for varying results from case to case. In some instances the facts may involve “contracted for” terms which constitute usury, as well as payments “charged or received” under the usurious contract. One court could award twice the amount paid as a penalty; whereas, another court could award twice the amount contracted for in the usurious contract as a penalty. Such interpretations and judgments result in inequitable enforcement of the statute. The fundamental principles of statutory construction require that a statute “not be construed so as to ascribe to the Legislature an intention to do an unjust or an unreasonable thing, if such statute is reasonably susceptible of a construction that will not accomplish such a result.” Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455, 458-59 (1942); McKinney v. Blankenship, 154 Tex. 632, 282 S.W.2d 691 (1955).

The Declaration of Legislative Intent for this Act specifically indicates that the statute was not intended to develop such a variable system of regulation or penalty imposition; this Declaration provides in part:

“(5) These facts conclusively indicate a need for a comprehensive code of legislation to clearly define interest and usury, to classify and regulate loans and lenders, to regulate credit sales and services, and place limitations on charges imposed in connection with such sales and services, . and to provide firm and effective penalties for usury and other prohibited practices.” Declaration of Legislative Intent, 15 Texas Revised Civil Statutes Annotated, at 2. [Emphasis added.]

Furthermore, the Declaration of Legislative Intent points out that the Act was intended to deal with credit abuses which impose intolerable burdens upon those segments of our society which can least afford to bear them; specifically, “the uneducated, the unsophisticated, the poor and the elderly.” Declaration of Legislative Intent, supra. Often it is this category of persons from whom actual payment of usurious interests might be exacted, yet it is this category who most needs the protection of the Act. The lenders servicing these segments of society will then forfeit less when found to charge usurious interest. Therefore, the legislative intent is thwarted by the majority’s interpretation of the statute as it does not protect all borrowers equally, does not treat all lenders exacting usury the same, does not provide a systematic regulation of usury, and does not obtain a forfeiture of “twice the amount of interest contracted for, charged or received.”

The wording of Article 5069-1.06, Subsection (1), is ambiguous in its provisions of forfeiture wherein it states:

“Any person who contracts for, charges .or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, . ” [Emphasis added.]

In a single transaction the amount “contracted for,” the amount “charged,” and the amount “received” each might be different sums. Such, in fact, is the instance in the present case. Under such circumstances, the standard for imposing the forfeiture is nebulous. Although penal statutes must be strictly construed, the fundamental principles of statutory construction apply. Accordingly, in construing ambiguous statutes the courts must determine the legislative intent. Minton v. Frank, 545 S.W.2d 442 (Tex.1976); Jones v. Del Andersen and Associates, 539 S.W.2d 348 (Tex.1975). The language of the statute is capable of a reasonable and equitable interpretation which comports with the legislative intent and allows recovery of the usurious interest actually paid by the borrower, as well as imposition of a penalty of twice the usurious interest contracted for, charged or received. Usurious contracts may be evidenced by the actual wording of the contract or by the substance or form of the transaction. Our courts have consistently held that substance rather than form of a loan transaction will determine if a loan is usurious and that the courts will ferret out various shadow transactions to determine if their provisions are usurious. State v. Community Finance & Thrift Corporation, 334 S.W.2d 559 (Tex.Civ.App.—Austin 1960), per curiam, 161 Tex. 619, 343 S.W.2d 232 (1961); Schmid v. City Nat. Bank of Wichita Falls, 132 Tex. 115, 114 S.W.2d 854 (1938). The penalty provisions of Article 5069-1.06 are designed to meet both the circumstances where there is written evidence of the usurious interest rate or those circumstances where the transactions themselves must be viewed to determine the usurious amounts. Where the contract terms provide the basis for the determination of usurious interest, Article 5069-1.06 provides that the forfeiture should be twice the amount of interest “contracted for.” Where the transaction itself must be viewed in order to determine the usurious contract, the penalty forfeiture cannot be based on “contracted for” terms and must be based upon twice the amount of interest “charged or received” evidenced by the transaction involved.

Such an interpretation does not preclude the recovery of interest paid in addition to the imposition of the penalty. This interpretation is consistent with the language of the statute read as a whole. Article 5069-1.06(2) provides for penalties where the interest rate charged is in excess of double the amount of interest legally allowed under the Act. In describing the penalty, Subsection (2) provides “all principal as well as interest” shall be forfeited. The use of the term “as well as” indicates that the forfeiture of interest has previously been authorized in the statute. If this section were the sole basis for the refunding of the interest, the proper wording would have been “all principal and interest” shall be forfeited. Therefore, such language can be validly interpreted to mean that Subsection (1) already provides for the forfeiture of the interest paid in addition to the penalty imposed therein.

The determination of whether usurious interest paid should be refunded under Article 5069-1.06 should be interpreted consistently with this court’s writing in Wall v. East Texas Teachers Credit Union, supra, in which the court stated:

“A penalty of twice the amount of usurious interest contracted for is not effected if Wall, the obligor, is required to pay the usurious interest. In such event the forfeit in his favor is not twice the interest contracted for, but only once. Unquestionably, the terms of the statute demonstrate the legislative purpose that as to interest a usurious contract is unenforceable.” 533 S.W.2d 918 at 921.

The majority attempts to confine the holding in Wall to the narrowest view of its facts. To do so is to overlook the unambiguous holding of this court in Wall that a usurious contract is completely unenforceable as to interest. In the instant case, however, the majority in effect actually enforces the partial validity of the usurious contract; that is, to the extent that the borrower has voluntarily paid the usurious interest.

This writer would hold that the statute adequately provides the basis for the refunding of the usurious interest paid, as well as the imposition of the legislatively provided penalty. However, the majority holds that even if Mrs. Miller were entitled to a refund under the statute she did not plead for such a refund and, therefore, cannot recover the interest paid. Mrs. Miller’s failure to seek such a refund should not preclude a judgment awarding her the usurious interest paid. Article 5069-1.06 is written in mandatory language, stating that where usurious interest is charged the lender “shall forfeit to the obligor.” Mrs. Miller’s burden is to establish the existence of a usurious contract. Once this element is proven the courts are mandated to enact the penalty provisions of the statute; the forfeiture provisions are specifically for the court to determine and to enforce.

In the instant case no valid reason is given by the majority for permitting the lender to retain the usurious interest received. Mrs. Miller, the borrower, is entitled to and should be refunded all usurious interest paid in addition to the legislatively required penalty of twice the contracted interest rate which was found to be usurious. This result is clearly in line with the legislative intent, the law of usury, and equitable enforcement of the statute as reflected in the Wall decision. This writer would affirm the judgment of the court of civil appeals.

STEAKLEY and McGEE, JJ., join in this dissent.

      . This is the present name of the bank. At the time of the transactions in question, it was known as the First State Bank of Euless.

      . The $14,000 to be retained was described on the January 6, 1972 Loan Work Sheet as “Escrow 14,000.00 1st year, 7,000.00 2nd year.” Bank President Tibbets testified that this provision was subsequently reflected by the “freeze” placed on the account on January 12, 1972, and by Miller’s letter of January 14 and his two postdated checks for $7,000 each.

      .This was a letter agreement from Ryan Mortgage Company to the Millers and the bank agreeing to take over the unpaid balance of the Miller’s note to the bank on or after January 5, 1975. For this commitment the Millers paid Ryan Mortgage Company the sum of $2,100 by check dated January 7, 1972. None of this fee was collected by or paid to the bank.

      . Article 5069-1.01(a). This and all other statutory references are to Vernon’s Annotated Texas Civil Statutes unless otherwise noted.

      . 21 Tex.Sup.Ct.Jour. 25 (Oct. 22, 1977), c 1977). rehearing 21 Tex.Sup.Ct.Jour. 103 (Dec. 7,

      . See Rule 434, Texas Rules of Civil Procedure.

      . Prior to the enactment of the present usury statutes in 1967, usurious contracts were provided by statute to be “void and of no effect,” and the recovery was limited to twice the amount of interest paid. Article 5071, read as follows:
      “The parties to any written contract may agree to and stipulate for any rate of interest not exceeding ten per cent per annum on the amount of the contract; and all written contracts whatsoever, which may in any way, directly or indirectly, provide for a greater rate of interest shall be void and of no effect for the amount or value of the interest only; but the principal sum of money or value of the contract may be received and recovered.” (Emphasis added.)
      Article 5073 read:
      “Within two years after the time that a greater rate of interest than ten percent shall have been received or collected upon any contract, the person paying the same or his legal representative may by an action of debt recover double the amount of such interest from the person, firm or corporation receiving the same.”

      . The statement, which applied to the facts and , pleadings in Wall v. East Texas Teachers Credit Union, supra, was “a penalty of twice the amount of usurious interest contracted for is not effected if Wall, the obligor, is required to pay the usurious interest.” 533 S.W.2d 918 at 921.


source: Caselaw Access Project

author: TOM G. DAVIS, Judge. PHILLIPS, Judge,

license: Public Domain

text:
    Billy George HUGHES, Jr., Appellant, v. The STATE of Texas, Appellee,
    No. 57394.
    Court of Criminal Appeals of Texas, En Banc.
    March 15, 1978.

      Robert A. Scardino, Jr., Houston, for appellant.
    Oliver S. Kitzman, Dist. Atty., Hemp-stead, for the State.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. Trial was in Matagorda County upon a change of venue from Austin County. After a verdict was returned finding appellant guilty of capital murder, the jury returned “Yes” answers to the questions required by Art. 37.071(b)(l & 2), V.A.C.C.P., mandating a penalty of death.

The record reveals that on April 4, 1976, the appellant was stopped by Texas Highway Patrolmen Mark Frederick and Jack Leroy Reichert after they received a radio report that appellant had used a stolen credit card. As Frederick approached the driver’s side of the car, the appellant fired a single shot from a 9 millimeter pistol at him. Frederick died as a result of the wound. As appellant’s car departed, Reic-hert fired six shots into the rear of it. The appellant was not wounded, but one of the car’s tires was hit. Appellant abandoned the car a short distance away and was arrested after a three-day manhunt.

Appellant entered a plea of “not guilty by reason of insanity.” Appellant presented the testimony of Dr. Joseph F. Pentony, a clinical psychologist. Dr. Pentony stated he found appellant to be a “paranoid schizophrenic,” and that it was “possible” that appellant could not conform his activities to the requirements of the law. In rebuttal, the State presented the testimony of Dr. John D. Nottingham, Jr., who stated the appellant was “sane” at the time of the offense. Dr. Nottingham further testified that a person can “be accurately diagnosed as a paranoid schizophrenic and still be able to recognize what conduct is wrong and be able to conform his conduct to the requirements of the law.” By a special verdict, the jury found the appellant to be “sane” before finding him guilty.

Appellant first complains of the court’s action in excusing juror Travis Harrison for cause. During voir dire by the prosecution, Harrison testified as follows:

“MR. KITZMAN: Well, I — the law says that prospective jurors and jurors should be informed that a sentence of life imprisonment or death is mandatory upon the conviction of a capital felony. That says a prospective juror will be disqualified from serving on such jury, unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact, and that’s why I’m pestering you so much.
“MR. HARRISON: Yeah. There’s lots of difference between death and life as far as I’m concerned.
“MR. KITZMAN: Are you telling me then you could not deliberate on these questions of fact without being influenced by your knowledge of that penalty; is that what you’re saying?
“MR. HARRISON: Well, I’m afraid that’s what I’m saying.”

Defense counsel then gave Harrison an explanation of the reasons for the procedure, after which the following took place:

“MR. SCARDINO [defense counsel]: . . Now, knowing all that, the background and the history of it, do you still say that you would be unable to answer those questions without considering the effect of your answers; would you be able to answer the question based on the facts in evidence.
“MR. HARRISON: Of course, when I answered the question, I’d know the reason, what the judgment would probably be, because what he started out saying was could I visualize any kind of case where I could have possibly answered both of those questions in the affirmative. And I told him at the beginning that I could probably, well, I could, in the most extreme, vicious type of murder, but whether it would influence my, both of my answers, I think I would know what the judgment, or be reasonably sure what the judgment would be, and so I think that every juror would know probably what the judgment would be, and to sit here and tell you that answering those questions and forgetting about what the judgment is going to be, I don’t think I’d be honest in saying that. So, this is getting back to his final question, would I be influenced by what the judgment is going to be, the forethought of it. I’d have to tell you that I would be.
“Now, like I said, I could answer both questions in the affirmative in the most extreme cases, but I couldn’t answer him without being influenced by what I think the judgment would be.” [Emphasis supplied.]

V.T.C.A. Penal Code, Sec. 12.31(b), provides:

“(b) Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

Appellant contends that since Harrison testified that he could assess the death penalty “in the most extreme, vicious type of murder,” that his exclusion violates the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

This Court has held that when a juror is disqualified under Sec. 12.31(b), supra, we do not need to consider his qualifications under Witherspoon. Moore v. State, 542 S.W.2d 664, cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977); Hovila v. State, 562 S.W.2d 243 (No. 56,989, 2-8-78). Harrison’s testimony clearly reveals that his deliberation on issues of fact would be affected by the possibility of the death penalty. No error is shown in the exclusion of Harrison.

Appellant contends, “The trial court erred in failing to properly apply the standards of Witherspoon v. Illinois, in the voir dire examination of venireperson Mrs. John E. Fitzmorris.” During voir dire by the prosecution, the record shows:

“MR. KITZMAN: ... Let me ask you if you have any conscientious or religious scruples against the infliction of the death penalty as punishment for crime?
“MRS. FITZMORRIS: I’m afraid I do. I just can’t.
“MR. KITZMAN: As I’ve told you before, however you feel about that is the right answer and I’m not here to persuade you that you ought to feel any differently than you do, however you do. “Do you feel that you’ve done something about your feeling about that?
“MRS. FITZMORRIS: Well, I feel that people who do these things are ill, really, and I feel that you should make it possible somehow to have a place for them. I think that other people should be protected from them, and it seems to me if we can send a man to the moon, we could do that.
“MR. KITZMAN: Well, unfortunately, we are not doing it, are we?
“MRS. FITZMORRIS: No.
“MR. KITZMAN: You said you think they are ill. Does that mean that you’re telling me that you think that anybody who commits a horrible murder has got to be insane in order to do it?
“MRS. FITZMORRIS: I really feel that way.
“MR. KITZMAN: I’m going back to the death penalty matter.
“Can you conceive of a circumstance so bad, so horrible, that if you were sitting on the jury and had the responsibility, that you would purposely vote for a death penalty, in the case where the law provided for it and the facts warranted it?
“MRS. FITZMORRIS: I don’t think so, no.
“MR. KITZMAN: Are you telling me that you just could not do that?
“MRS. FITZMORRIS: No, couldn’t do it.
“MR. KITZMAN: We challenge for cause, Your Honor.” -

During voir dire by counsel for appellant that followed, the record reflects:

“MR. SCARDINO: Do you think a person could be mean enough to kill?
“MRS. FITZMORRIS: Well, yes. They can.
“MR. SCARDINO: Do you think a mean person is crazy?
“MRS. FITZMORRIS: Yes.
“MR. SCARDINO: That all mean people are crazy?
“MRS. FITZMORRIS: I think they are. They’re sick.
“MR. SCARDINO: Just because they are mean?
“MRS. FITZMORRIS: Yes.
“MR. SCARDINO: Can you envision a crime that is so horrid, that is so bad, for a person to plan terrible plots, gets the tools to carry it out, the guns, the ropes or the knives, carry it out and carries out a scheme, takes somebody’s money or kidnaps someone’s baby or robs somebody or burglarizes their house; while doing so, kills in order to achieve his end. He has no remorse for what he did but he’s caught and brought to trial.
“Do you think a person like that could ever consider the death penalty. Not that — give it. But would you consider the death penalty for a person like that?
“MRS. FITZMORRIS: I don’t know, I don’t think so. I just don’t know.
“MR. SCARDINO: You’re just not sure what you would do?
“MRS. FITZMORRIS: No.
“MR. SCARDINO: Then you cannot state that you would automatically vote against the death penalty in every case?
“MRS. FITZMORRIS: No, I can’t.
“MR. SCARDINO: You would not vote against it in every case?
“MRS. FITZMORRIS: I don’t know. I just don’t know.
“MR. SCARDINO: You don’t know if you would automatically vote against it?
“MRS. FITZMORRIS: No, I — I just can’t; I can’t say.
“MR. SCARDINO: It’s a hard question.
“MRS. FITZMORRIS: Yes.
“MR. SCARDINO: Not everybody likes to answer that question, and we understand your difficulty in deciding and I appreciate your listening to our questions.
“We pass the juror back, Your Honor.
“THE COURT: Juror excused on the challenge.
“MR. SCARDINO: Note our exception to the Court’s ruling.”

Appellant argues that under Wither-spoon, unless a venireman “states unambiguously that he would vote against the imposition of capital punishment no matter what the trial might reveal,” a venireman is not subject to challenge for cause. The recent Supreme Court case of Davis v. Georgia, 429 U.S. 122, 50 L.Ed.2d 339, 97 S.Ct. 399, is urged by appellant in light of the holding therein that the exclusion of a single venireman in violation of Witherspoon constitutes a denial of due process and a death penalty imposed in such a case cannot stand. In its opinion, the Supreme Court did not set forth the voir dire examination of the juror improperly excused, but the same is found in the Georgia Supreme Court’s opinion in Davis v. State, 236 Ga. 804, 225 S.E.2d 241. The improperly excused venireman, in response to a question propounded to the panel, “Are any of you conscientiously opposed to capital punishment?” answered “I am.” The question was then asked, “You are?” and the response was, “Yes.” This constituted the sole basis upon which the prospective juror was disqualified in Davis. The instant case is in sharp contrast to Davis since Mrs. Fitzmorris had stated, “No, couldn’t do it,” in response to questions about her ability to vote for the death penalty regardless of how horrible and bad the circumstances of the case were. She also answered in the affirmative to a question about “conscientious or religious scruples against the infliction of the death penalty” and followed this answer with the volunteered statement, “I just can’t,” which could only be taken to mean that she could not vote for the death penalty. While she was certain that she could not vote for infliction of the death penalty however horrible the case might be under examination by the prosecutor, she stated under examination by appellant’s attorney that she couldn’t say that she would automatically vote against the death penalty in every case.

In White v. State, Tex.Cr., 543 S.W.2d 104, prospective juror Barbour, in answer to a question as to whether she could vote for infliction of the death penalty in a proper case, answered:

(1) “I am not sure. I think I believe in it [death penalty], but I am not sure that I could carry it out.”
(2) “I think so.”
(3) “I just really don’t know.”
(4) “I don’t think so.”

In White, we concluded:

“In the light of the ‘cold’ record before us, it would be difficult to say whether venireman Barbour unequivocally stated that she would automatically vote against imposition of the death penalty; however, when she was faced with the question of whether she could take an active part as a juror in the consideration and assessment of the death penalty in a given case, she responded that she did not ‘think so.’ Her answer was tantamount to a declaration that her personal qualms about the imposition of the death penalty would prevent her from being an impartial juror in a case in which the range of punishment included the death penalty.”

In White, Tezeno v. State, Tex.Cr., 484 S.W.2d 374, was quoted with approval regarding its treatment of the troublesome area of the “equivocating venireman.” In Tezeno, it was stated:

“We cannot believe that Witherspoon v. Illinois, supra requires certain formal answers and none other. We surely feel that the test of Witherspoon is ‘not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.”

We must be mindful that where we only have a cold record before us the trial judge in passing on the answers of the “equivocating venireman” has the opportunity to observe the tone of voice and demeanor of the prospective juror in determining the precise meaning intended. Tezeno v. State, supra. While her examination was concluded by the answer, “I can’t say,” and “I just don’t know,” in response to questions about automatically voting against the death penalty, her earlier answer to questions left no doubt that she could not vote to inflict the death penalty however horrible the circumstances of the case might be.

As was the case in White, it would be difficult to say whether Mrs. Fitzmorris unequivocally stated that she would automatically vote against imposition of the death penalty. We find, however, that we need not reach the question of whether the prospective juror was disqualified under Witherspoon. Our review of the answers given by the venireman to questions asked as well as information volunteered by her reflects that the court did not err in sustaining the State’s challenge for cause. Under questioning by both the State and appellant, Mrs. Fitzmorris persisted in stating that she felt people mean enough to kill and commit crimes were “crazy,” “sick,” “ill,” and “insane.” She volunteered that ip a time when we can send a man to the moon there should be a place for these people. In light of the fact that appellant’s defense was insanity, we find no abuse of discretion in the court concluding that the venireman would not be an impartial juror and sustaining the challenge for cause. See Art. 35.16(a)(9), V.A.C.C.P.

Appellant next complains of two instances of improper jury argument by the prosecutor. The first complained of argument is claimed by appellant to have injected an extraneous offense. The record reflects the following argument by the prosecutor at the guilt stage of the trial:

“Ladies and Gentlemen, with the evidence before you, with this arsenal, with this map, with this other thing, I think you can assume that that car had been used before April the 4th in another piece of bad business.”

The car which appellant was driving when he shot Frederick was found shortly after being abandoned by the appellant. A search of the car revealed the following items: (1) a .30 caliber M-l carbine rifle; (2) a twelve-gauge sawed-off shotgun; (3) a .300 or .303 caliber rifle with a case; (4) a shoulder holster; (5) an “ordinary holster”; and (6) a rubber mask. In addition, when appellant was arrested he had in his possession a 9 millimeter Browning automatic pistol. Expert testimony was presented that this was the gun from which the fatal shot was fired.

An examination of the automobile revealed that it contained six gunshot holes and that a tire had also been punctured, apparently by a seventh bullet. Officer Reichert testified that he fired six shots at the car and that the deceased did not fire any shots. An examination of the deceased’s service revolver revealed that it contained three live rounds and three spent shell casings. The investigation also revealed that the pistol was not in working order when it was taken from the deceased. The State presented expert testimony that a slug recovered from the car definitely did not come from Reichert’s pistol. The expert further testified that after having Frederick’s pistol repaired he obtained a sample firing from it. He said the slug from the car was similar to one fired from Frederick’s pistol, but that it was too mutilated to make a positive comparison. Finally, testimony revealed that one of the bullet holes in the trunk appeared to have a little rust around it.

In an attempt to explain the seventh bullet hole, the appellant’s counsel made the following argument:

“But this — the dead police officer had three rounds missing. I don’t think you can believe anything other than the fact that when he went on duty that night that he was a good police officer and that he got dressed and he put that Colt .357 in his holster and that it was loaded and it had six rounds in it when he went on duty that night.”

The complained of argument was made in response to the foregoing argument. The argument by the prosecutor was as follows:

“Now, then, the extra bullet.
“There was some comment about this. “ * * * We wanted to show you that there were several bullets in that car and we wanted to show you that there was a strange bullet in that car, a bullet that did not come from any gun — any weapon in this vicinity.
“Now, our man didn’t quite do it for us. He said he couldn’t say that it didn’t come from the Colt [Frederick’s weapon], but he could not say that it did.
“But if you have Officer Reichert’s testimony saying it did not, which you have got to believe — nobody is going to disbelieve that young man — the tragedy he has been through — we know there is a seventh bullet on that car.
“Green [an officer who examined the car] testified further that he thought there was a little rust around the hole.
“Ladies and Gentlemen, with the evidence before you, with this arsenal, with this map, with this other thing, I think you can assume that that car had been used before April the 4th in another piece of bad business.
“MR. SCARDINO: Your Honor, we will object to that.
“THE COURT: All right, sir. Overrule it.”

In Alejandro v. State, Tex.Cr., 493 S.W.2d 230, this Court said:

“To receive the stamp of approval of this court, jury arguments need to be within the areas of: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement.” [citations omitted]

The argument in question here is proper both as an answer to argument of opposing counsel and as a reasonable deduction from the evidence. The appellant had argued that the seventh bullet hole came from the deceased’s gun, and the State was attempting to demonstrate that it had to have come from some other source. Taking all of the evidence cited by the State into consideration, it is reasonable to assume that the seventh bullet hole might have come as the result of “bad business.” Surely any time a gun is fired at a car, it can be characterized as a “bad piece of business.” No error is shown.

The second complained of argument occurred during the penalty stage of the trial. The record reflects the following argument by counsel for the State:

“Ladies and Gentlemen, let me put it this way and I will do this as humbly as I can. “I know this, that out of the thirteen of us I am the more expert at assessing punishment for crimes and for assessing penalties—
“MR. SCARDINO: Judge, we have given the prosecutor a lot of latitude, but we are going to object to that.
“MR. SALYER: I will withdraw it, Your Honor.
“But I will just say this:—
“THE COURT: He withdrew it.
“MR. SALYER: ... as the people’s attorney:—
“THE COURT: You are instructed not to consider it since he withdrew it.
“MR. SCARDINO: And we will further ask for a mistrial.
“THE COURT: I will overrule your mistrial motion.”

The argument was clearly improper; however, the court’s prompt instruction to disregard rendered the error harmless. See Hicks v. State, Tex.Cr., 545 S.W.2d 805; Easley v. State, Tex.Cr., 454 S.W.2d 758; Wood v. State, Tex.Cr., 440 S.W.2d 640; Morris v. State, Tex.Cr.App., 432 S.W.2d 920.

Appellant next complains of the admission of two photographs into evidence. One of the photographs shows the guns which were recovered from the appellant’s car, and the other shows the mask which was also in the car. The appellant complains that both photographs tend to show extraneous offenses.

The record reveals the following testimony from Sheriff T. A. Maddox of Austin County, prior to the introduction of the photograph of the guns:

“Q. Do you recall what weapons, if any, were found in the trunk?
“A. Yes, sir. There was a sawed-off shotgun and a high-powered rifle.”

The appellant’s counsel made the following objection when the photograph of the guns was offered:

“As to State’s Exhibit No. 19, it serves no purpose in this cause except to bolster the testimony of Sheriff Maddox. He has testified that there was a rifle found in the trunk of the Defendant’s automobile —or, purported automobile of the Defendant, and that the photograph of a rifle that is purported to be the same one he found does nothing but bolster the testimony and serves no other purpose. . ” [Emphasis added.]

Both the record and appellant’s objection reveal that testimony about the guns found in the car had already been received without objection.

In Alford v. State, Tex.Cr., 505 S.W.2d 813, this Court said:

“ . . .a photograph, proved to be a true representation of the person, place or thing which it purports to represent, is competent evidence of those things of which it is material and relevant for a witness to give a verbal description.”

See also: Terry v. State, Tex.Cr., 491 S.W.2d 161, and Martin v. State, Tex.Cr., 475 S.W.2d 265.

Sheriff Maddox gave a verbal description of the guns without objection and further testified that the photograph did “accurately depict the conditions as they were. . . ” The guns in appellant’s vehicle were a circumstance surrounding the offense and a photograph of them was admissible. See Burns v. State, Tex.Cr., 556 S.W.2d 270; Calverley v. State, Tex.Cr. 511 S.W.2d 60.

With respect to the photograph of the mask, the only identification in the record comes when Sheriff Maddox identified the photograph. At the time the photograph was introduced, the appellant made the following objection:

“ . . . I would like to state to the court that in State’s Exhibit No. 17, which is a photograph — an eight-by-ten color photograph of what appears to be an extremely grotesque Hallowe’en mask, I submit to the court that the admission of State’s Exhibit No. 17 into evidence serves no purpose in the cause; is irrelevant and immaterial.”

On appeal, appellant is urging that “the trial court erred in holding that a photograph of a mask tending to show extraneous offenses was admissible.”

In Burns v. State, Tex.Cr., 556 S.W.2d 270, this Court upheld the admissibility of a baggie of marihuana which was found near the body of the deceased but not linked to the defendant. The decision was based on “the rule which provides that all of the facts and circumstances surrounding the commission of an offense are admissible.” See also: Calverley v. State, Tex.Cr., 511 S.W.2d 60; Lassere v. State, Tex.Cr., 458 S.W.2d 81. In the instant case, the mask was found in the car from which the fatal shot was fired. Appellant abandoned the vehicle a short time later. We hold that the presence of the mask in the car was “a circumstance surrounding the commission of the offense” and was properly admissible. No error is shown.

In appellant’s final ground of error, it is contended “the trial court erred in holding evidence of a former conviction offered at the commencement of the State’s case-in-chief to show motive admissible.”

The record reflects that the first witness called by the State was Jene W. Owens, an FBI agent from Mobile, Alabama. Owens testified that the appellant had been convicted on September 26, 1975, in the U. S. District Court for the Southern District of Alabama for “threats to extort and bomb several banks in Mobile,” and that appellant had been assessed a three-year probated sentence. After the appellant objected, the trial court ruled the evidence admissible to prove “motive.” The court then admonished the jury that the evidence “is limited for your consideration for the purpose of establishing motive, if any, and for no other purpose.” A copy of the judgment was admitted into evidence.

The police bulletin which resulted in Frederick’s and Reichert’s attempt to stop appellant’s vehicle was the result of a transaction at the Days Inn near Brookshire. Jo Ann Johnson, the general manager of the motel at the time of the fatal shooting, identified appellant as the person who had registered at the motel in the name of Harold B. Martin on that date. Appellant told her that he wanted to pay the bill with a Bank Americard bearing that name. Johnson later called Bank Americard for an authorization number and was told that the credit card had been reported stolen and to try to get it away from the party and return it to their office. Johnson went to appellant’s room, knocked on the door, and told appellant that she needed his credit card to “restamp it” because she had “stamped it wrong.” Appellant responded that he was going to eat at the restaurant and that he would bring it to her. According to Johnson, appellant had already eaten in the restaurant and asked that the charge for the meal be placed on his account. She told appellant that the restaurant was closed and she would take the card and save him a trip. Appellant answered, “I will take it up myself.” Johnson then contacted hotel security guard Bennett Cook to get the card from appellant. Johnson then saw appellant “driving out of the driveway real fast. . . ” Johnson gave Cook the information regarding appellant and Cook contacted the authorities by radio.

In Ellisor v. State, 162 Tex.Cr. 117, 282 S.W.2d 393, under a similar set of facts, it was stated:

“A number of bills were reserved to the action of the court in permitting witnesses to testify and allowing a portion of the confession to be introduced, both of which showed that some two days before the homicide the appellant had burglarized a tourist court and had stolen the guns which he used to kill Officer Crosby and the money which was found on his person at the time he was apprehended. The fruits of the burglary were in the possession of the appellant at the time Officer Crosby gave chase; the appellant knew that they were stolen and that if Officer Crosby was successful in arresting him and found them he (would probably be held accountable for their theft. We think that the evidence relating to the burglary was admissible on the issue of the appellant’s intent at the time he shot Crosby.
“Without the proof of the presence of stolen property in appellant’s automobile and without the proof as to the shooting of Scarborough, the jury would have had no evidence as to the appellant’s intent when he shot Crosby. Without such evidence, they might have concluded, as the appellant asked them to, that the shooting of an officer in order to avoid receiving a speeding ticket was the act of an insane man.”

In Cherry v. State, Tex.Cr. 488 S.W.2d 744, upon appeal from a conviction for murder of a police officer on January 10, 1969, this Court held that for the purpose of showing motive, evidence of defendant’s escape from the Georgia State Board of Corrections on May 28, 1968, was admissible. See Chappell v. State, Tex.Cr., 519 S.W.2d 453; Hicks v. State, Tex.Cr., 389 S.W.2d 950; Stephens v. State, 147 Tex.Cr. 510, 182 S.W.2d 707; Stalcup v. State, 130 Tex.Cr. 119, 92 S.W.2d 443.

With only seven months having elapsed since appellant had received a three-year probated sentence, his desire to avoid apprehension on the occasion in question was apparent. Not only was he fleeing from a motel where he had expressed a desire to pay for his room and a meal with a credit card in another person’s name, but in addition thereto he was in possession of a virtual arsenal of weapons. The introduction of the conviction upon which appellant received the three-year probated sentence was probative evidence of appellant’s motive to avoid apprehension on the occasion in question. As in Ellisor, the evidence of the probated sentence tended to refute appellant’s plea that he was insane at the time of the fatal shooting. We hold that the court did not err in admitting evidence of the probated sentence to show motive for the fatal shooting.

In addition, appellant’s father took the stand and testified regarding the conviction. In the course of the direct examination, he testified that appellant had been taken into custody by federal authorities, that he had been present at the trial of his son and that he had received “three years probation.” Appellant’s introduction of evidence of the three-year probated sentence cures error, if any, in its introduction by the State. See Allen v. State, Tex.Cr., 536 S.W.2d 364; Watson v. State, Tex.Cr., 532 S.W.2d 619; Lovel v. State, Tex.Cr., 538 S.W.2d 630; Doggett v. State, Tex.Cr., 530 S.W.2d 552.

The judgment is affirmed.

VOLLERS, J., not participating.

PHILLIPS, Judge,

dissenting.

I dissent from the majority’s disposition of appellant’s ground of error complaining of a violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). For the purposes of this dissent I adopt the reasoning of Part I of Judge Roberts’ dissent in Shippy v. State, Tex.Cr., 556 S.W.2d 246 at 257.

ROBERTS, J., joins in this dissent.


author: ODOM, Judge.

text:
    Jim VANDERBILT, Appellant, v. The STATE of Texas, Appellee.
    No. 56834.
    Court of Criminal Appeals of Texas, En Banc.
    March 22, 1978.
    Rehearing Denied April 12, 1978.
    Jim B. Brown, Canyon, for appellant.
    Tom Curtis, Dist. Atty., and Bruce P. Sadler, Asst. Dist. Atty., Amarillo, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder. The jury returned affirmative findings on each issue submitted under Article 37.071(b), V.A.C.C.P., and accordingly, the punishment was assessed at death.

The evidence reflects that the deceased, Katina Moyer, was abducted by the appellant, a former Amarillo police officer, at gunpoint from an Amarillo high school at about 3:15 p. m. on April 1, 1975. She was evidently handcuffed and was forcibly taken to appellant’s house and subsequently was taken outside the city limits but within Potter County where appellant shot her in the back of the head. In view of our disposition of this appeal, further discussion of the facts will be limited to the events surrounding the interrogation of the appellant at police headquarters after he was taken into custody.

Appellant complains of the exclusion of evidence from the jury concerning an alleged deal used to induce him to confess. In brief, the record shows an oral confession on the evening of April 11, 1975, and a written confession in the early morning hours of April 12. The oral confession was ruled admissible and the written confession was excluded. We will first outline the evidence heard by the court on appellant’s motion to suppress the oral confession, next note the trial court’s ruling on the written confession as related to the oral confession, then detail the rulings on the evidence for the jury on the oral confession issue, and finally discuss the law on the matter and dispose of the issue.

Evidence to the Court on the Oral Confession

Appellant filed a motion to suppress an oral confession that was obtained from him during the interrogation. During a Jackson v. Denno, 387 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) hearing conducted outside the presence of the jury, the following evidence was adduced. Officer Ed Foree testified that appellant was arrested when leaving a class at the police academy at about 6:00 p. m. on April 11,1975. He was taken to the polygraph room at police headquarters and was read his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 674 (1966) rights. Officer E. N. Smith took custody of appellant immediately thereafter and testified that he stayed with him from 6:00 p. m. until 9:00 p. m. and that appellant did not request counsel until 8:00 p. m. at which time he was allowed to contact an attorney of his choice. The attorney contacted by appellant declined to represent him but did advise him of the nature of the charges about which he was being interrogated and further advised him to say nothing to the police. Smith further testified that as far as he knew appellant did not during this period of time attempt to call another attorney and never requested that one be appointed for him.

Officer Jimmy Boydston testified that he took custody of the appellant between 9:00 to 9:30 p. m., and immediately thereafter the appellant asked him some questions concerning the capital murder statute and the possibility of a deal being made to avoid the capital murder charge. Boydston testified that District Attorney Tom Curtis then came into the room and after Boydston had related to him what the appellant had been talking about, a deal was discussed. The terms were that if a signed written statement was given and was used in trial, then the State would not ask for the death penalty. Evidently at this point, the appellant was asked again by Curtis if he wanted an attorney, to which he replied that he did not but that he would like to see his wife. Once again, at this juncture, appellant was read his Miranda rights.

Boydston further testified that approximately thirty minutes later the appellant’s wife arrived and talked with him for ten to fifteen minutes, and that after she had left the room Curtis handed the appellant a blank statement form and told him “that he could write it out as well as he could,” referring to a written statement. At this point, according to Boydston’s testimony, the appellant stated that he was not going to make a statement. To this, Curtis retorted that any deals or possible deals that had been considered were off and he asked if the appellant understood this to which he replied that he did.

The evidence reflects that Curtis then left the room and Officer Davis came in and made a statement to the effect that maybe a hundred policemen were working on this case and that they knew who did it and the only question remaining was why he had done it, referring to the appellant. Davis and Boydston testified that appellant then began to confess. After listening for a few minutes, Davis left the room and returned fifteen or so minutes later with a typed statement which the appellant refused to sign. At this point, the appellant did request the presence of counsel and asked that one be appointed for him. Curtis was immediately apprised of the appellant’s request and a few moments later came back into the room with Tabor Scott, a practicing attorney who had been appointed by Justice of the Peace Byrd to represent the appellant. Scott had arrived at the station house at about 9:30 to 9:45 p. m. and was allowed to see the appellant between 11:00 and 12:00 p. m.

Scott testified that he saw the appellant at about midnight, conferred with him for an hour, left on several occasions to meet with District Attorney Curtis, and that later in the evening had a meeting with Curtis, which Justice of the Peace Byrd, Officer Fields and a few other individuals attended. Although Scott declined to testify as to the subject of the conversation with Curtis, apparently believing that the attorney-client privilege would prevent him from doing so, a transcription of the conversation occurring at 2:35 a. m. on April 12, 1975, was introduced at pre-trial, including the agreement entered into by Curtis and Scott on behalf of the State and the appellant respectively, as well as the written signed confession with an agreement. These exhibits establish that a written confession was signed by the appellant at 3:00 a. m. on April 12, 1975 in which he confessed to the murder of the deceased. At the end of the written confession is contained the language:

“that by confessing in writing and signing this written, voluntary confession to the murder I will not be in jeopardy of receiving a death penalty as punishment, upon my conviction for capítol (sic) murder, but will instead be punished only by life imprisonment for that offense.”

The instrument states that it was executed at 3:00 a. m. on April 12, 1975. The transcription of the conversation between Scott and Curtis occurring at 2:35 a. m. on April 12, 1975, established that unless a signed written confession was produced in the capital case then the agreement was to have no effect.

The appellant took the stand at the Jackson v. Denno hearing and refuted most of the State’s testimony. He testified that after the Miranda rights were read to him, at about 6:30 p. m. on April 11, 1975, he began asking for an attorney, and that he requested one approximately every ten minutes. He stated that, although there was no verbal response to his repeated requests, he was not in a position to get up and go to the phone. He testified that no one offered to let him go to a phone or offered to call an attorney for him until about 8:00 p. m. He stated that after he was shown a picture of the deceased he informed E. N. Smith that he did not want to talk to him about the case and again requested an attorney.

The appellant also testified that Davis made him a deal that if he would confess to the Moyer murder then Davis would take care of his wife, Davis evidently being in charge or having access to certain money in the police metro fund. The appellant stated that when he began confessing the deal with Curtis was still on, that it had not been withdrawn, and that the substance of the deal was that if he would confess to the crime then the death penalty would not be sought. The appellant testified that when Curtis wanted him to give the statement and when he refused Curtis became very angry and told him that the same deal would not exist tomorrow if the deal was not made then. Appellant stated that the oral confession was given to Officers Davis and Boydston because of the deals concerning the death penalty and the taking care of his wife. When Davis left the room to type up what the appellant had told him, and subsequently returned with a typewritten statement, appellant testified that the instrument was not complete, that it did not accurately depict what he had said, and thus he refused to sign the instrument.

Officer Davis testified that, although he did tell appellant that he would do what he could to shield his wife from the press, that this offer was not made contingent on appellant giving a confession, but was rather made because they had been police officers together and “that there is a certain bond between police officers. . . . ”

The Jackson v. Demo hearing testimony was extensive, and other witnesses testified relative to issues not necessarily germane to the present inquiry and thus their testimony will not be discussed. Based on the testimony presented at the hearing, the trial court ruled that the oral confession made by the appellant to Boydston and Davis was admissible and denied the motion to suppress.

The Written Confession and the Oral Confession

At a pre-trial hearing, the trial court ruled that the written confession signed by the appellant at 3:00 a. m. on the morning of April 12 would not be admissible in the trial on the merits in the event the State sought to prosecute the appellant under a capital murder indictment, evidently on the ground that the written confession was a product of a palpably unlawful inducement. Although the court stated that it would allow extensive examination of both prosecution and defense witnesses as pertained to any allegedly improper inducements surrounding the oral confession, the court took the position in its rulings and in fact instructed defense counsel:

“to introduce no evidence concerning any deal or alleged or supposed deal made after the oral confession was made.”

Evidence to the Jury on the Oral Confession

During the cross-examination of Boyd-ston before the jury, defense counsel Brown approached the bench and inquired of the trial court if it would allow him to go into the deal surrounding the written confession that had been earlier suppressed. The following colloquy in pertinent part resulted:

“THE COURT: You moved to suppress that [the written confession], and it is suppressed.
“MR. BROWN [Defense Counsel]: All right, Judge. I have not moved to suppress the deal that was made at 2:35 a. m.
“THE COURT: You cannot go into a written confession which has been suppressed on your motion. Now you have gone into the deal, whatever the deal.
“MR. BROWN: There was a deal made at 9:00 o’clock or 9:30; there is another one at 2:35 (a. m.).
******
“MR. BROWN: I didn’t ask to suppress the deal, I asked to suppress the confession. I want to go into the deal.
“THE COURT: The deal at 2:30 you would not be entitled to go into because that happens after, after the oral confession has been made.”

Subsequently during further proceedings out of the presence of the jury, the following exchange occurred:

“THE COURT: Now, I permitted you at that time, (during the Jackson v. Den-no hearing) and I have since permitted you, to go into any kind of deal, whatever deals they are, leading up to the oral confession which has been admitted in evidence, and you (defense counsel) indicated to me that you intended to put into evidence matters involving deals with the District Attorney that occurred after the oral confession and that were involved concerning the written confession which has been suppressed on your motion, is that right?
“MR. BROWN: That’s correct.
“THE COURT: Now, on what basis do you intend to put that in?
“MR. BROWN: The State has entered evidence that they offered the defendant a deal sometime in the evening of April the 11th to sign a written confession. Then, they put in evidence that they immediately withdrew it and he thereafter immediately gave an oral confession based upon no deal whatsoever.
“Now, I want to show that the State did not in fact withdraw the deal, because the deal was still being talked about from approximately midnight until 2:35 a. m., at which time Mr. Curtis dictated the deal on a tape which was played here the other day, and later had it transcribed.
“I want the jury to be able to decide for itself whether in fact the deal was made, and if it was, whether or not it was withdrawn.
“If I am denied the right to show that the deal was still in effect from the time that it was made until 2:35 a. m., or whatever, then, the jury does not have the evidence with which to make that determination, the Court will have to cut me off short of that defense.
“It has allowed the State to show that they have withdrawn it, got an oral confession, entered the oral confession, and the only way that I can show that that deal was not withdrawn is by putting on evidence that it was still in effect at that time of the day.
“Now, I don’t have anyone else, other than the defendant, that I can put up on that stand, besides police officers and members of the prosecution that asked about that, but there is written evidence before this Court, there is tape recorded evidence before this Court, two written instruments, a signed confession with the deal in it, a transcript of the deal, and a tape recording of the deal before this Court, which, surely to goodness shows the Court that that deal was still in effect at 2:35 a. m.
“I think the jury ought to see that so they can make their determination when they look at the Charge and determine the voluntariness of the confession.
* ⅜ * * ⅜: ⅜:
“MR. CURTIS: First off, Your Honor, these are matters of law. At a pre-trial hearing on defense motion, the written signed confession that was at that time marked that came along at some 3:00 o’clock or so which is referred to in a tape recording that has already been played for the Court and transcribed, that written signed confession has been suppressed on Mr. Brown’s motion, and it is not in this case, contrary to what Mr. Brown said, because he got it out way ahead of time by suppressing it. The Court granted his motion, and that is that.
⅜ * * ⅜ * ⅜
“Now, the agreement on tape with the transcript, that the Court verified is before the Court for its consideration as a matter of law, to predicate the rulings that the Court is now fixing to make its rulings upon, its not a jury question, its a matter of law. And I understood yesterday the Court had ruled four or five or six times on it, all in the same way, and its in no way a proper matter for a jury.
“Now, these are matters that are in the record away from the presence of the jury, and they are irrelevant and immaterial to any fact issue that the jury is called upon to decide in a capital murder case.
“They can be brought to the attention of any appellate court and there is a proper record made on that, and that’s the proper way to handle this.
“MR. BROWN: Your Honor, may I point out that we, the defense, filed a motion to suppress the written confession; we also filed a motion to suppress the oral confession, which we were unsuccessful in, but the Court did suppress the written confession.
“Now, I’m not asking that the written confession be introduced in evidence, but neither did I ever ask this Court to suppress evidence of the deal that he made; I have never asked that, Your Honor, never before, and I’m not asking it now and I’m not asking that the statement be introduced, and I never asked that the fact be suppressed that I could not ask about an act performed by my client.
“He signed that confession, that’s all I want to do. I don’t want, the confession, I’m not asking the Court to change its ruling on that. I just want to show the jury that the prosecutor made a deal, made a deal at those early hours in the morning, still in effect, and that the Defendant carried out his part of the deal, that’s all, no statement.
“Now, in order for that jury to be able to determine whether or not the deal was withdrawn, they need to see the whole picture, they don’t need to see it cut off at 11:00 o’clock or whatever it is; they need to see it as it goes through. All I want to do is put somebody up here to show that a deal was made, to show that a statement was signed. .
“THE COURT: Under no circumstances will I permit the jury to know that there is a signed statement which they are not entitled to look at.
# # * * * *
“The testimony on this case thus far is that any deal that was offered was withdrawn prior to the oral confession. For that reason, I will restrict the Defendant and I will instruct you to introduce no evidence concerning any deal or alleged or supposed deal made after the oral confession was made. That is the ruling of the court.
“MR. STORRS [Defense Counsel]: Your Honor, for the purposes of clarification of the record, we are not going to be entitled to introduce even evidence as impeachment evidence, now, not evidence that he signed a written statement, but evidence as impeachment evidence of a later deal that came up to impeach the State’s position that the deal was called off, we have to take that verbatim?
“MR. STORRS: I am not confronting the witness, I am not talking about pulling that statement out of the box at all. The confession is suppressed, we will not touch it with óur hands, period, or talk about the confession.
“I am just asking if the court will allow us to offer evidence besides the confession of a later deal solely for the purpose of being impeachment evidence to impeach the State’s position that the deal was called off and that he understood the deal was called off.
“MR. CURTIS: Could not be offered for impeachment in that event or in any event.
“THE COURT: I don’t see how it could be.”

Finally, after the State had rested, the appellant called attorney Tabor Scott and during cross-examination by the State Scott was asked whether he conducted any negotiations on the appellant’s behalf with anyone, to which he replied yes. Defense counsel approached the bench and outside the presence of the jury argued to. the court that the State had opened the door by asking the aforementioned question regarding negotiations concerning the deal and in that counsel was not permitted to see his client until after midnight, this obviously meant that Scott was referring to negotiations occurring after the oral confession. The following is thus reflected in the record:

“THE COURT: No, he didn’t open the door.
“MR. BROWN: We can’t ask him what the negotiations were, I don’t suppose?
“THE COURT: You cannot.
“MR. BROWN: 38.24, I believe, Your Honor, applies both to the defense and to the State as well, and I request that the Court read it and that we have the same opportunity—
“THE COURT: I have done so.
******
“THE COURT: It is my holding that the question asked by the prosecutor was not sufficient to open the door to go into that situation.
“MR. BROWN: All right. Then I respect that order. Now, the one earlier, where they have gone into the deal and oral confession, 38.24 would open the door for us to go into the negotiations which occurred at 2:35 a. m. and the act by the Defendant in response to that, the act of signing the written confession, Your Honor.
“THE COURT: No, because those are two separate and distinct acts, you—
“MR. BROWN: The notes of Boydston, marked State’s exhibit 46, were transcribed, typed on the statement verbatim, with the exception of the last two lines of it, and they have gone into the deal surrounding that, and that would be part of the additional negotiations where he eventually signed that statement.
“THE COURT: No, I disagree with you, Mr. Brown. I will not permit you to go into that.
“MR. BROWN: Note our exception, and we respectfully move this Court for a mistrial based upon the fact that the court is denying him his constitutional rights of cross examination of witnesses and the right to present evidence in his own defense.
“THE COURT: Which is denied.
“MR. STORRS: Are we not specifically going to be allowed to ask this witness what conversations — what negotiations he went into or he had concerning his client that night?
“THE COURT: Yes, that’s my ruling.
“MR. BROWN: Note our exception.”

Discussion of the Law and Disposition of the Issue

We understand appellant’s position to be that he was deprived of his constitutional right to submit evidence to the jury in his defense on the issue of the voluntariness of the oral confession introduced at trial. He also relies on Art. 38.24, V.A.C.C.P. His basic argument is that the State was allowed to place before the jury the fact of the existence of a deal, the subsequent withdrawal or rescission of the deal and the fact that the appellant immediately thereafter orally confessed, without allowing him to put on evidence that the deal had not been withdrawn, but, to the contrary, was very much alive and had in fact been embodied in a written confession signed by him at 3:00 a. m. on April 12.

The State argues, as the court ruled, that evidence surrounding the events of the written confession signed by the appellant at a later time in the early morning of April 12 was irrelevant to the issue of whether the earlier oral confession was voluntarily made in that the oral confession was an independent and separate act from the written confession. The trial court also reasoned that since the appellant at a pretrial hearing had successfully challenged the admissibility of the written confession on his own motion, he was thus precluded from presenting evidence concerning the events surrounding the written confession and the agreement entered into by District Attorney Curtis, Tabor Scott and the appellant later in the evening.

Without reaching the merits of whether the trial court erred in admitting the oral confession, we find reversible error in the court’s action of refusing to allow the appellant the opportunity to develop evidence before the jury relative to the issue of the voluntariness of the oral confession.

Article 38.22, Section 2, V.A.C.C.P., in effect at the time of this trial, provided in part:

“Upon the finding by the judge as a matter of law and fact that the confession or statement was voluntarily made, evidence pertaining to such matter may be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that the confession or statement was voluntarily made, the jury shall not consider such statement or confession for any purpose nor any evidence obtained as a result thereof.”

Under this provision of the Code of Criminal Procedure, a defendant is allowed the opportunity to present evidence to the jury on the issue of the voluntariness of the confession which the State has introduced at trial against him. This statutory provision entitled the accused:

“to offer evidence before the jury as to the voluntariness of a confession despite the judge’s earlier findings thereon to the contrary.” Ross v. State, Tex.Cr.App., 504 S.W.2d 862, 864. See generally Lopez v. State, Tex.Cr.App., 384 S.W.2d 345; Taylor v. State, Tex.Cr.App., 498 S.W.2d 346, 348.

Furthermore, the general rule is:

“[A]ll material and relevant testimony on the question of the voluntary nature of the confession should be admitted . .” Bownds v. State, Tex.Cr. App., 362 S.W.2d 858, 860.

Article 38.24, V.A.C.C.P., provides:

“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may bg inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

This provision of our Code of Criminal Procedure was originally enacted in 1856 and has not been significantly amended since that time. In Greene v. State, 17 Tex.App. 395 (1885) referring to Art. 751 of the Code of Criminal Procedure of 1856, now Art. 38.24, V.A.C.C.P., it was stated:

“This article expands the common law rule with reference to such evidence. At common law, when a confession or admission is introduced in evidence against a party, such party is entitled to prove the whole of what he said on the subject at the time of making such confession or admission . . But the above quoted article does not restrict the explanatory act, declaration, conversation or writing to the time when the act, declaration, conversation or writing sought to be explained occurred, but extends the rule so as to render such acts or statements admissible, if necessary to a full understanding of, or to explain the acts or statements introduced in evidence by the adverse party, although the same may have transpired at a different time, and at a time so remote even as to not be admissible as res gestae.” 405-406

In Greene, supra, the State had introduced a statement of the defendant admitting that he had killed the deceased but objected to the introduction of a written statement made by the defendant the next day in which he stated that he had killed the deceased because the latter had raped his step-daughter. The Court in relying on Art. 751 (now Art. 38.24, V.A.C.C.P.) reversed the conviction and remanded the case for a new trial, holding:

“We think he (the defendant) was entitled to have it submitted to the jury for their consideration, in connection with his confession made the day before, and upon which confession the state relied for a conviction. Its credibility, and the weight to be given to it, were matters for the jury to determine. By the jury it might be wholly disregarded, or it might be credited, and if credited might properly influence them favorably to the defendant, mitigating the punishment, or reducing the grade of the homicide.” at 407.

In Roman v. State, Tex.Cr.App., 503 S.W.2d 252, in discussing Art. 38.24, supra, we held:

“The purpose of this provision is to reduce the possibility of the fact finder receiving a false impression from hearing the evidence of only a part of the conversation, writing, act or declaration.”

In the present case the appellant was prejudiced by the trial court’s action in refusing to allow him to develop testimony before the jury concerning the transactions occurring later in the evening of April 12, 1975. Certainly, had the jury been cognizant of the 2:35 a. m. meeting between District Attorney Curtis and Tabor Scott, the appellant’s initial court-appointed counsel, and had they been aware that a deal had been discussed and in fact entered into between the parties in the early morning of the 12th of April, they could have concluded that the oral confession was in fact the product of an unlawful inducement, reasoning that the deal or offer by the State had in fact not been withdrawn when the appellant orally confessed.

The State contends that the oral and written confessions were independent and separate acts, arguing that evidence surrounding the written confession was irrelevant to the issue of whether the oral confession was voluntary. True, the jury might well have determined that the two confessions and the events surrounding each constituted separate acts and that the oral confession was not tainted by an impermissible inducement or promise. Nevertheless, Art. 38.22, supra, entitled appellant to present evidence to the jury on whether the oral confession was voluntary. This clear requirement of the statute controls even where the trial judge has made “earlier findings thereon to the contrary.” Ross, supra.

We find it of little moment that the oral confession and events surrounding the same occurred earlier in the evening. In Clewis v. State, Tex.Cr.App., 415 S.W.2d 654, reversed on other grounds, Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967), the defendant confessed three different times over a nine-day period. He challenged the admissibility of the third confession. At the trial a police officer was allowed to testify that after the defendant had signed one of the prior statements he stated:

“I feel like I can eat something now. I have that knot out of my stomach. I got it all straight with the Lord.”

The Court held that pursuant to Art. 728, Y.A.C.C.P. (now Art. 38.24, supra) the evidence was admissible as it

“related to appellant’s acts and statements during his interrogation about the crime and was admissible on the issue of the voluntary nature of the confession. Such testimony was in rebuttal of testimony offered by appellant on the question of the voluntary nature of his confession, and, as a part of the same transaction, was admissible under Art. 728, Vernon’s Ann.C.C.P.” (Emphasis added.)

Again, in Clewis, supra, the statements made by the defendant during interrogation occurring over a nine-day period which produced three written confessions were held to fall within the purview of Art. 728 (now Art. 38.24, supra) and were admissible, as being part of the same transaction in that it related to appellant’s acts and statements during the interrogation. The interrogation process was viewed as being “the same transaction” e.ven though several confessions were given over an extended period of time. See also, Route v. State, 168 Tex.Cr.R. 388, 327 S.W.2d 761, which recognized the rule that events after a confession may be considered on the voluntariness issue.

In light of Clewis, supra, and under both Art. 38.24, supra, which has been interpreted to expand the common law rule of completeness (Greene v. State, supra, see also 17 South Texas L.J. 105 (1975)), and Art. 38.22, supra, which entitles the defendant to present evidence on the issue of the volun-tariness of a confession, Ross, supra, we hold the exclusion of the evidence appellant attempted to get before the jury constituted reversible error.

Furthermore, the fact that the appellant had secured suppression of the written confession does not dissuade us from this holding. If the written confession were based on a palpably unlawful inducement, it was incumbent upon defense counsel to challenge its admissibility in efficaciously representing his client’s interests. Moreover, the fact that the defense secured its exclusion would not estop or prevent it from eliciting testimony or evidence of the existence of a deal or offer being made at a time subsequent to the oral confession. This could have been accomplished in the present case without introducing the written confession itself. In fact, the record reflects that defense counsel stated that they would not introduce the written confession nor even elicit testimony concerning it, but did want to question witnesses relative to the 2:35 a. m. meeting and any negotiations or deals entered into by the State and the appellant. In that the interrogation of the appellant and the facts and events surrounding it in the present case constitute the same transaction, the events occurring subsequent to the oral confession but within the interrogation transaction relevant to the issue of the voluntariness of the confession were admissible.

The judgment is reversed and the cause remanded.

VOLLERS, J., not participating.

      . The written confession actually signed by the appellant in this case is not the instrument that Davis handed him to sign shortly after he began to orally confess. The written confession signed by the appellant and made a part of this record is the instrument executed at 3:00 a. m. on April 12, 1975. The shorter written instrument which appellant refused to sign was evidently misplaced and was not introduced at trial or any pre-trial hearing.

      . See generally Fisher v. State, Tex.Cr.App., 379 S.W.2d 900; Wechsler v. State, 172 Tex. Cr.R. 559, 361 S.W.2d 379.

      3. The voluntariness of a confession may be made a fact issue for the jury. Art. 38.22, V.A.C.C.P.

      . Since the case has been disposed of by the grounds of error discussed, we need not discuss the other grounds. However, we note that the State introduced no evidence at the punishment stage of the trial. In the event of a re-trial, we call attention to the recent case of Warren v. State, 562 S.W.2d 474, on sufficiency of the evidence to support an affirmative finding to special issue No. 2 of Art. 37.071, V.A.C. C.P.