author: PHILLIPS, Judge. DOUGLAS, Judge. PHILLIPS, Judge,

text:
    Thomas Edward LANDERS, Appellant, v. The STATE of Texas, Appellee.
    No. 51979.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1977.
    Opinion On State’s Motion For Rehearing April 20, 1977.
    Rehearing Denied May 18, 1977.

      Melvyn Carson Bruder, on appeal only, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler, Les Eubanks and R. Gary Noble, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

Appellant was convicted under the former penal code of the offense of passing a forged instrument and his punishment was assessed by a jury at five years. A prior conviction in this cause was reversed by this Court for the admission of a similar instrument bearing appellant’s name, operator’s license and social security number without any proof as to who wrote said items on said instrument or any evidence connecting appellant therewith. Landers v. State, Tex. Cr.App., 519 S.W.2d 115. The evidence showed that two checkbooks were stolen at a burglary on March 19, 1972. Only the check appellant was charged herein with passing was admitted. At a prior trial appellant was acquitted on the charge of passing another check allegedly taken from said checkbook, but in the instant trial said check upon which he was acquitted was excluded upon motion by the State.

Appellant’s first ground of error complains of argument by the State that the State tried to offer in evidence additional checks but that appellant’s counsel objected to them, and its subsequent argument that the law of extraneous offenses keeps the State from bringing many, many other checks, if there are any. Said ground of error is multifarious, Dorsey v. State, Tex.Cr.App., 450 S.W.2d 332, but we do not feel same would present reversible error even if such were not the case. The only ground stated for the obje tion to the first complained of argument was that same was a false statement and the only ground timely urged in the objection to the said second statement was that such was not a correct statement of law. No ground was ever stated for either of the motions for mistrial relating thereto. Even if said objections were held not within the prohibition of “general objections”, Wilson v. State, Tex.Cr.App., 541 S.W.2d 174, we hold that said argument was invited by defense counsel’s prior argument to the jury, to-wit:

“Let’s go a step further. Don’t you know that if they had any evidence, any evidence at all, that Tommy Landers . had additional checks, don’t you know they would have . . . brought that evidence and laid it right out in front of you, pass it around like they did that check? Lack of evidence. Lack of evidence.”
“It seems very strange to me, very strange, that no other checks were associated with Tommy Landers name, no other checks.”
“Why didn’t they bring up all those other checks and show you that Tommy Lan-ders, Tommy Landers’ name appeared on them?”

Hill v. State, Tex.Cr.App., 518 S.W.2d 810; Chappell v. State, Tex.Cr.App., 519 S.W.2d 453; Pesch v. State, Tex.Cr.App., 524 S.W.2d 299; Holloway v. State, Tex.Cr.App., 525 S.W.2d 165; Garrison v. State, Tex.Cr.App., 528 S.W.2d 837.

Appellant’s second ground of error contends that the prosecutor’s argument that the State was in possession of other similar checks which had been simultaneously stolen with the one charged against the appellant, when appellant had been tried and acquitted on a charge of passing one of the checks supposedly simultaneously stolen as a part of one checkbook, violated the State and Federal Constitutional prohibition against double jeopardy. Appellant’s failure to make said objection to said argument at the time of the making of same precludes review of said question. Peach v. State, Tex.Cr.App., 498 S.W.2d 192; Pete v. State, Tex.Cr.App., 501 S.W.2d 683, cert. den. 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574; Schumake v. State, Tex.Cr.App., 502 S.W.2d 758; Lamberson v. State, Tex.Cr. App., 504 S.W.2d 894; Davis v. State, Tex. Cr.App., 505 S.W.2d 800; Esquivel v. State, Tex.Cr.App., 506 S.W.2d 613; Ex parte Bagley, Tex.Cr.App., 509 S.W.2d 332; Eli-zaldi v. State, Tex.Cr.App., 519 S.W.2d 881. However, even if same had been properly raised we would be compelled to conclude that such would not present reversible error for the reason that appellant’s counsel invited the State’s reply as shown above. Even if Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972), holding that collateral estoppel as a part of the law of jeopardy prohibits any reference to proof of a collateral crime of which a defendant has been acquitted is to be followed, such would apply only to primary proof thereof and not proper rebuttal evidence or a reply to invited argument thereon. Appellant’s contention that Ex parte Seelies, Tex.Cr.App., 511 S.W.2d 300, holding that double jeopardy can be raised for the first time in the habe-as corpus proceeding, renders it unnecessary to object at the trial level to preserve the point held to be error in Wingate v. Wainwright, supra, is clearly without merit. The Constitution prohibits a prosecution for an offense of which a person has theretofore been placed in jeopardy. The Wingate question does not involve a second prosecution for the same offense, but merely involves an evidentiary matter in a prosecution for a separate offense.

Ground of error three contends that the denial of appellant’s motion to act as co-counsel in his behalf and cross examine any and all witnesses against him, make any statements to the court and argue his case before the jury if he so desired, was a violation of his rights under the Sixth Amendment to the Constitution of the United States and Art. 1, Sec. 10 of the Texas Constitution. It is true as contended by the State that the cases of Ward v. State, Tex.Cr.App., 427 S.W.2d 876; Roberson v. State, Tex.Cr.App., 513 S.W.2d 572; and Ballard v. State, Tex.Cr.App., 514 S.W.2d 267, specifically hold that an accused is not entitled as a matter of absolute right under said constitutional provisions to argue to the jury pro se. Said Roberson and Ballard cases merely cite as their authority said Ward v. State, supra, and Ward is not actually supported by any of the decisions cited therein. The recent decision by the Supreme Court of the United States in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, decided in June of 1975, in holding an accused has the absolute right under the Federal Constitution to defend himself without any counsel, made the following statements considered by us to be applicable herein:

“Although not stated in the Amendment in so many words, the right to self-representation — to make one’s own defense personally — is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
“The counsel provision supplements this design. It speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant — ■ not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. Cf. Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408; Brookhart v. Janis, 384 U.S. l,“7-8, 86 S.Ct. 1245, Í248, 16 L.Ed.2d 314; Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 829, 9 L.Ed.2d 837. This allocation can only be justified, however, by the defendant’s consent, at the outset, to accept counsel as his representative. An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.”

Appellant certainly did not allocate at the beginning of the trial, expressly or by implication, to his counsel the right to cross examine witnesses. To the contrary, he specifically in writing demanded this right for himself as to any and all witnesses against him. The trial court’s conclusion at the time of his denial of appellant’s said demand that the appellant is a “well known jailhouse lawyer” who would be impossible to work with as a co-counsel cannot properly be considered by this Court, for to do so would clearly constitute a denial of due process to appellant. Any contention that the appellant would be better off allocating his right of cross examination to his court appointed attorney is a mere argument that the framers of the Texas Constitution acted unwisely in specifically providing in Art. 1, Sec. 10 that “in all criminal prosecutions the accused . . . shall have the right of being heard by himself or counsel, or both.” (Emphasis added.) Furthermore, we might say, but we cannot know, that an accused person’s chances are better with his attorney cross examining the witnesses against him. By reason of his personal and exclusive knowledge of particular facts being testified to by the witnesses against him, he may be in a better position to cross examine said witnesses than would be his attorney. The accused for reasons personal to himself may not desire to divulge to his attorney all of the intimate details of a particular transaction that might be of value in the cross examination of a witness.

Any conclusion that an accused’s exercise of said constitutional right to examine witnesses is disruptive of orderly procedure can only be determined after such occurs. It cánnot be presumed in advance for all presumptions should be indulged in favor of the right to exercise constitutional rights.

In our recent decision of Dugger v. State, 543 S.W.2d 374 (decided November 10, 1976), we called attention to the fact that the Faretta decision is silent as to its retroactive application and it was not necessary to pass on said question since the record in said case did not show that the defendant ever asked that he be permitted to represent himself. This cause was tried in April 1975, approximately two months prior to the decision in Faretta. Since all prior decisions of this Court and the United States Supreme Court as to the Constitution’s clause pertaining to being heard by himself or counsel have held that the denial of said right renders past convictions, regardless of how remote, void, we cannot help but conclude that on this direct appeal the denial of appellant’s timely and properly presented request for his constitutional right to personally cross examine witnesses against him presents reversible error. Any matter relating to the entire scope of cross examination of any and all witnesses relates to the integrity of the fact finding process. Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969).

The judgment is reversed and the cause remanded.

ODOM, J., concurs in the results.

DOUGLAS, J., dissents.

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The State’s motion for rehearing is granted. We affirm.

Article 1, Section 10 of the Texas Constitution provides that an accused in criminal cases “shall have the right of being heard by himself or counsel, or both.” The opinion on original submission misconstrues this provision and obliterates the well established distinction between the right to be heard and the right to counsel.

The Constitution should be interpreted in light of conditions existing at the time of its adoption. Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31 (1931). See also Cox v. Robison, 105 Tex. 426,150 S.W. 1149 (1912); and Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 (1943). Cf. Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912). Article 1, Section 10, supra, was first adopted in 1836. At that time other states had similar constitutional provisions. A mandate that an accused should have a right to be heard by himself and by his counsel was adopted by New Hampshire in 1774, Pennsylvania in 1776, Delaware in 1782 and by Connecticut in 1818. In 1790 Massachusetts adopted a provision which gave a defendant the right to be heard by himself or his counsel at his election. In 1798 Georgia provided that an accused might be heard by himself or counsel or both. New Jersey in 1776 guaranteed defendants the same privileges of witnesses and counsel as their prosecutors “are or shall be entitled to.” These colonial and early state constitutional provisions were adopted in the context of the English common law.

Originally in England the accused was not permitted to be heard by counsel upon indictment for treason or felony. In practice the English courts did allow counsel to advise the defendant on matters pertaining to the conduct of his case and on questions of law arising upon the trial, and to represent him in collateral matters. Often counsel was permitted to do everything for the accused except address the jury for him.

The rule prohibiting counsel for one accused of treason obtained until 1695 when the right to counsel was given by statute. But the rule forbidding the participation of counsel in felony cases stood until 1836. It was also abrogated by statute. Although the rule in misdemeanor cases and, after 1695, in prosecutions for treason was that the defense must be conducted either by the defendant in person or by counsel, both were not permitted to participate in the trial.

The accused had always been allowed to plead his cause orally in person. But, since the accused was not allowed to have counsel, his statements covered whatever he wanted to say regarding law, evidence, or argument. In effect, then, the accused “furnished evidence, i. e. material which affected the jury’s belief; but he was not sworn, he had no standing as a witness, and in theory of the law he therefore gave no evidence.”

During the period of recorded trials down to the latter part of the sixteenth century, the accused addressed the jury at the proper stage and was questioned freely, as if his statements could influence the outcome. However, the principle of disqualification for interest, which emerged first in civil cases, gradually extended to criminal cases, rendering the accused incompetent to be a witness in his own cause. By the time of James II, just before the Revolution, the courts were expressly repudiating the notion that the defendant’s statements were to be taken as testimony. He could still speak on his own behalf, if desired, but not under oath. The competency of the accused to testify under oath was not established in England until 1898.

It is beyond dispute that England intended her law, the common law included, to be transplanted to her American colonies. It was the common law that the first generation of colonists knew best in criminal matters, especially its procedures. After the Declaration of Independence, every state except Connecticut and Rhode Island provided by constitution or statute that the common law of England as previously practiced was to remain in force (until such time that it might be altered legislatively).

Against this background, it appears that the various constitutional provisions affording the accused the right to be heard were designed to give him the right to testify. This was recognized by Professor Wigmore:

“Under a constitutional clause providing that ‘the accused shall have the right to be heard by himself and counsel,’ the accused of course has a right to testify; this right overriding any other disqualification. . . . ”

The harsh common law restrictions upon the right to counsel and the right to be heard were discussed by the United States Supreme Court in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942). The Supreme Court then stated its interpretation of the constitutional provisions:

“In the light of this common law practice it is evident that the constitutional provisions to the effect that a defendant should be ‘allowed’ counsel or should have a right ‘to be heard by himself and his counsel’, or that he might be heard by ‘either or both,’ at his election, were intended to do away with the rules which denied representation, in whole or in part, by counsel in criminal prosecutions, . . ”

Thus, .Article 1, Section 10, supra, and similar constitutional provisions were intended to afford an accused the right to participate and be heard in his trial while at the same time removing the restrictions to full representation and participation of counsel. However, these provisions were not intended to encompass the right to counsel as that right is delineated in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

The prior decisions of this Court clarify the distinction between the right to counsel and the right to be heard. In Walker v. State, 32 Tex.Cr.R. 175, 22 S.W. 685 (1893), the trial court limited defense counsel’s time for argument. On appeal, this Court held that such limitation under the facts of that case denied the accused the right to be heard. The decision was based upon the right to be heard as provided by Article 1, Section 10, supra, and not upon the right to counsel.

In Leahy v. State, 111 Tex.Cr.R. 570, 13 S.W.2d 874 (1928), the trial court refused to permit the defendant to personally cross-examine witnesses at the hearing on motion for new trial. This Court declared that every provision of the Constitution must be given a construction in line with its reasonable intendment. Interpreting Article 1, Section 10, supra, the Court stated that “if one charged with crime had no counsel, he could not be denied the right to be heard by himself upon his trial, nor could he be denied the right to give his version of the facts and be heard to this extent in any case; likewise, if within proper limitations he desired to address the jury on the facts upon his trial, it would not be proper to deny this privilege.” But the Court concluded that Section 10 does not permit an accused and his counsel to speak at will upon each point debated during the trial. Nor does it allow both to examine and cross-examine witnesses as they choose. The Court then held that the defendant in that case “was heard by counsel, and in those matters appropriate, by himself, but the record fails to show that he was deprived of any right or any advantage by the refusal of the court to allow him to cross-examine these witnesses upon the hearing of the motion for new trial.” (Emphasis supplied).

The recent decision of Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976), is also instructive. In.that case, we reaffirmed the rule that an accused does not have the right to be both represented by counsel and also propound his own questions to witnesses and make jury argument in his own behalf. See also Ward v. State, 427 S.W.2d 876 (Tex.Cr.App.1968); Roberson v. State, 513 S.W.2d 572 (Tex.Cr.App.1974); and Ballard v. State, 514 S.W.2d 267 (Tex.Cr.App.1974).

This Court has consistently interpreted Article 1, Section 10, supra, to allow an accused and his counsel to be heard at trial in appropriate situations, but not to expand or alter the right to counsel or in any way give the accused the right to hybrid representation. Moreover, no other state court has construed such a constitutional provision to give an accused the right to hybrid representation.

The Georgia Constitution provides that “[n]o person shall be deprived of the right to prosecute or defend his own cause, in any of the courts of this State, in person, by attorney, or both.” The courts of that state have interpreted this provision to give the trial court discretion as to whether an accused may conduct any part or all of the cause where he is represented by counsel. See Heard v. State, 126 Ga.App. 62, 189 S.E.2d 895 (1972), and authorities cited therein. Thus, there is no right to hybrid representation in Georgia. Such representation is a privilege which may be granted “upon timely request.” Heard v. State, supra.

Section 11, Declaration of Rights, Florida Constitution, provides, “[i]n all criminal prosecutions, the accused * * * shall be heard by himself, or counsel, or both.” In Thompson v. State, 194 So.2d 649 (Fla.App. 1967), the defendant contended that this provision secured for him, as a matter of right, the opportunity to address the jury even though he was represented by counsel.

The court rejected that contention and held that the trial court has discretion to limit a defendant’s conduct of the case.

The Oregon Constitution provides that “in all criminal prosecutions the accused shall have the right * * * to be heard by himself and counsel.” In State v. Rogo-way, 45 Or. 601, 81 P. 234 (1905), the Supreme Court of Oregon interpreted the provision to mean that an accused has the right to be fully heard in his defense by counsel. In that case the trial court limited argument of counsel to one hour. The Supreme Court reversed and held that the time restriction upon counsel’s argument did not permit a full and fair discussion of the case before the jury and thus violated the defendant’s constitutional right to be fully heard.

The Constitution of Alabama provides that “in all criminal prosecutions the accused has the right to be heard by himself and counsel, or either.” The Alabama Supreme Court has stated this provision requires that counsel receive full and fair opportunity to present his client’s defense. Yeldell v. State, 100 Ala. 26, 14 So. 570 (1894).

An accused in Kentucky is guaranteed the “right to be heard by himself and counsel.” The courts of that state have consistently ruled that the provision means an accused has the right to have his counsel present at each stage of the trial. See Wilcher v. Commonwealth, 297 Ky. 36, 178 S.W.2d 949 (App.1944), and the authorities cited therein.

In South Dakota, an accused is accorded the right “to defend in person and by counsel.” However, this provision does “not create or guarantee dual rights. * * * An intelligent competent accused must elect either (1) to have an attorney — by employment or by appointment, or (2) to defend himself. He is not entitled as a matter of right to both.” State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121 (1960).

In California, a defendant “is not entitled to have his case presented in court both by himself and by counsel acting at the same time or alternating at defendant’s pleasure.” (Emphasis supplied) People v. Hill, 70 Cal.2d 678, 76 Cal.Rptr. 225, 452 P.2d 329 (1969), cert. denied 406 U.S. 971, 92 S.Ct. 2416, 32 L.Ed.2d 671 (1972). The Supreme Court of Nevada reached the same conclusion in Miller v. State, 86 Nev. 503,471 P.2d 213 (1970), even though that state’s constitution provides that an accused “shall be allowed to appear and defend in person, and with counsel . . See also 23 C.J.S. Criminal Law § 979(4), and 21 Am.Jur.2d, Criminal Law, Section 311, which sets forth the general rule that an accused has no right to hybrid representation.

The right of self-representation has been granted in federal proceedings by statute since 1789. See, Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and now codified in 28 U.S.C. Section 1654. The federal courts have consistently recognized that an accused has a right to represent himself or to be represented by counsel but does not have a constitutional right to hybrid representation. Lee v. Alabama, 406 F.2d 466 (5th Cir. 1968), cert. denied, 395 U.S. 927, 89 S.Ct. 1787, 23 L.Ed.2d 246 (1969); Brasier v. Jeary, 256 F.2d 474 (8th Cir. 1958), cert. denied, 358 U.S. 867, 79 S.Ct. 97, 3 L.Ed.2d 99 (a civil case); Duke v. United States, 255 F.2d 721 (9th Cir. 1958), cert, denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365 (1958); United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973); United States v. Conder, 423 F.2d 904 (6th Cir. 1970), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267; Shelton v. United States, 205 F.2d 806 (5th Cir. 1953), appeal dismissed, 346 U.S. 892, 74 S.Ct. 230, 98 L.Ed. 395; and United States v. Wolfish, 525 F.2d 457 (2nd Cir. 1975). See also Annotation, 17 A.L.R. 266, 271, supplemented at 77 A.L.R.2d 1233, 1241. Significantly, those-hourts- have likewise universally -held that Faretta v. California, supra, does not alter the established rules of hybrid representation. United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976); United States v. Bennett, 539 F.2d 45 (10th Cir. 1976); United States v. Gaines, 416 F.Supp. 1047 (N.D.Ind.1976). And in United States v. Swinton, 400 F.Supp. 805 (S.D. N.Y.1975), the court stated:

“. . . Faretta ratified a consensus within the federal judiciary favoring a constitutional right to pro se status; that consensus has existed side by side with another finding that a defendant’s appearance as co-counsel lies within the discretion of the trial court. The Sixth Amendment does not give any indication that hybrid representation is a right of constitutional dimensions. . . .”

Furthermore, no constitutional provision of another state had been reinterpreted in light of Faretta to accord a defendant the right to hybrid representation. The Oklahoma Constitution provides that an accused “shall have the right to be heard by himself and counsel.” This provision was construed by the Oklahoma Court of Criminal Appeals in Lowe v. State, 58 Okl.Cr. 233, 52 P.2d 115 (1935), to mean that an accused has the right to testify. Cf. Cannon v. State, 58 Okl.Cr. 451, 55 P.2d 135 (1936). In the recent decision of Stiner v. State, 539 P.2d 750 (Okl.Cr.1975), the same court considered the impact of Faretta in that state and concluded that an accused has no right to act as co-counsel.

Although Article I, Section 18(a) of the Missouri Constitution gives an accused the right “to appear and defend, in person and by counsel,” such provision has not been construed to mean that a defendant is entitled to hybrid representation. State v. Velanti, 331 S.W.2d 542 (Mo.1960); State v. Ingram, 316 Mo. 268, 289 S.W. 637 (1926). In State v. Burgin, 539 S.W.2d 652 (Mo.App.1976), the accused contended that in light of Faretta the state constitution entitled him to hybrid representation as a matter of right. The court rejected that contention anc^s^ted: M, .¾,

“Faretta v. California, supra, held only that the Sixth Amendment to the United States Constitution guarantees to a defendant in a state criminal trial the right to defend himself without counsel, and that where a defendant voluntarily and intelligently waives his right to counsel, the state may not force counsel upon him. It was emphasized that Faretta ‘weeks before trial . . . clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel,’ and, consequently, the trial court erred in forcing him ‘to accept against his will a state-appointed public defender . . . ”

Therefore, Faretta v. California, supra, has not altered the meaning of Article 1, Section 10, supra, as interpreted by the many previous decisions of this Court. There is no constitutional right in Texas to hybrid representation partially pro se and partially by counsel.

Chief Justice Burger, then Judge of the United States Court of Appeals for the District of Columbia, discussed the proper roles of the defendant and his counsel at the National Defender Conference in 1969:

“Answering the question ‘who controls the progress of a case — the defendant or his counsel?’ Judge Burger had an emphatic response: ‘The defense lawyer!’ The defendant has only three decisions to make, he pointed out. To plead guilty or not guilty; to have a jury or non-jury trial; and to take the stand or not.
“The ideal and goal, according to Judge Burger, is to establish a system in which the assigned defense counsel will be indistinguishable from the retained defense counsel in skill, as well as manners.”

5 Criminal Law Reporter 2161, 2162.

The opinion on original submission and the dissent to this opinion would destroy years of precedent by misconstruing Article 1, Section 10, supra, and Faretta v. California, supra. If the dissent were adopted, it would distort the proper lawyer-client relationship in criminal cases and would carry the potential for chaos in the courtroom.

If the dissent were the rule, one would have to pity the plight of the defense counsel who would have to put up with an unruly or untrained defendant. In case of a disagreement on a tactical matter, who would control? If the lawyer prevailed in his view of the strategy and a defendant were to be convicted, many claims of ineffective assistance of counsel would be raised. No doubt many civil suits against lawyers would be filed if such a hybrid type of representation were required. For example of the many problems where an accused has acted as co-counsel, see Williams v. State, 549 S.W.2d 182 (1977).

When it is not required under the Constitution of the United States or the Constitution of Texas, we will not force trial judges to sit where there is so great a likelihood of trials being farces and mockeries of justice.

If this new proposed doctrine of hybrid representation were allowed in the trial of a case, then the Constitution of Texas would allow such representation in the appellate process because there is no limitation in Article 1, Section 10 as to when an accused may be heard.

The position of the dissent is contrary to the decisions of this State and of all the other jurisdictions which have the same or similar constitutional provisions. We give great weight to those decisions.

The State’s motion for rehearing is granted and the judgment is now affirmed.

PHILLIPS, Judge,

dissenting.

I remain convinced of the soundness of our opinion on original submission, but desire to call attention to additional factual and legal realities that further contradict the concepts in the majority opinion on rehearing.

The majority quotes and apparently adopts the view of Chief Justice Burger expounded by him at the National Defender Conference in 1969 to the effect that the defendant has no right to make decisions affecting his fate during the progress of his trial other than what plea to enter, whether to have a jury, and whether to take the stand. It was this very view, which was again expressed by Chief Justice Burger in his dissent in Faretta v. California, supra, that was overruled by the Supreme Court in the Faretta decision.

Article 1, Sec. 10 of the Texas Constitution provides:

“The accused shall have the right of being heard by himself or counsel or both.” (Emphasis added)

Under no possible construction of the English language as it has ever existed can one construe the term “heard” in the above Constitutional provision to have different meanings as to the terms himself, or counsel or both. Would the majority interpret this provision as guaranteeing defense counsel the right to testify? It is inconsistent to interpret “heard” to mean “the right to testify” when applied to the accused, while interpreting “heard” as “the right to conduct a defense” when applied to counsel.

Article 1, Sec. 10 is expressly made applicable “in all criminal prosecutions”. The term “criminal prosecution” encompasses all proceedings therein from indictment through sentence and the right to be heard applies to each and every one. In-depth analysis of the historical data set out in the majority opinion as well as that set out in Faretta, supra, verifies this obvious conclusion instead of detracting therefrom as contended by the majority.

In Faretta v. California, supra, 422 U.S. at page 819, 95 S.Ct. at page 2533, the Supreme Court of the United States makes plain to all the true meaning of the Sixth Amendment by the following pronouncements:

“The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense . The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
The counsel provision supplements this design. It speaks of the ‘assistance’ of counsel,- and an assistant, however expert, is still an assistant.' The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant— not an organ of the State interposed between an unwilling defendant and his right to defend himself personally.”

In view of these clear and certain pronouncements, how can one contend that an accused’s timely demand of his now certain right to personally make his defense by cross-examining the witnesses against him can be, or even should be, denied merely because he has an attorney sitting by his side as an assistant or a so-called co-counsel? When an accused states at the beginning of a trial that he will exercise his now ironclad right to represent himself, will the majority hold that the trial court, in the face of the Sixth Amendment and Article 1, Sec. 10, has the right to prohibit an attorney from sitting at the counsel table with him as his assistant? If not, what happens when an accused is suddenly confronted with a matter beyond his comprehension or training and, consistent with ordinary rules of procedure, his co-counsel (assistant) attempts to handle same? When consistent with ordinary procedural rules for co-counsel, would the majority hold that said co-counsel (assistant) could not participate? What if the accused himself is an attorney? Would the majority make a distinction between when a defendant singularly demands to defend himself, thereafter singularly requesting that his lawyer be permitted to assist him and when a defendant simply demands the right to act as co-counsel with his lawyer and cross-examine the witnesses against him in accordance with the rules of procedure for co-counsel? As stated by the Supreme Court in Faretta, “It is the accused, not counsel, who must be confronted with witnesses against him.” (Emphasis added.) Thus, not only does the Sixth Amendment right to counsel sustain the defendant’s position herein, but the Sixth Amendment’s personal right to confront the witnesses likewise supports and requires that the accused be afforded his right to personally cross-examine the witnesses against him. Said right was; of course, subject to the trial judge’s discretionary powers pertaining to cross-examination such as the requiring that the cross-examination of one witness be limited to one counsel, that same be conducted in an orderly manner, be non-repetitious and limited by the rules of evidence. 61 Tex.Jur.2d, Witnesses, Sec. 128 (1964) at 696.

The majority opinion quite surprisingly gives as reasons and justification for its shrinking of the individual Constitutional right pronounced in Faretta the theories’ that to accord such individual right might cause a defense counsel to have to put up with an untrained defendant, might cause some claims of ineffective assistance of counsel, might cause a civil suit against a lawyer, might result in a conflict between a lawyer and his client as to trial strategy, might give a defendant a right to be heard on appeal, might increase the likelihood of a trial being a farce, and might carry the potential for chaos in the courtroom. Not one of said fears has any justification in fact. Actually, regardless of whether an accused is participating in his own defense or not, a lawyer must in all cases bow to the ultimate decision of his client on strategy or withdraw from the case; there would be less grounds for a claim of ineffective counsel and fewer law suits against lawyers would be filed; there would be less likelihood of a trial becoming a mockery of justice where an accused representing himself has the benefit of the advice of co-counsel; and disruptive conflicts between the trial judge and the accused who has elected to conduct his own defense would occur far less frequently if the accused had the settling and persuasive influence of trained co-counsel by his side. Of course, the realities are that any defendant who is bent on a course of disruption of courtroom procedure would do so regardless of the presence or absence of counsel. When such is not an avowed purpose of the defendant, the presence of a co-counsel, friendly to his own interests, would necessarily contribute favorably to orderly procedure.

The State’s Motion for Rehearing should be overruled.

ROBERTS, J., concurs in the results of the dissent.

      . 1 Chitty, Criminal Law, 406 (5th Am.Ed.)

      . 1 Chitty, supra.

      . 7 Will. 3, c. 3, section 1.

      . 6 & 7 Will. 4, c. 114, sections I and II.

      . See Betts v. Brady, infra, and the discussion contained therein.

      . Levy, Origins of the Fifth Amendment, 324 (1st ed. 1968).

      . II Wigmore, Evidence, Section 575 at 684 (3d ed. 1940).

      . Sir James Stephen, 1 A History of the Criminal Law of England 325, 377, 440 (1883).

      . II Wigmore, supra, Section 575 at 685.

      . See, e. g., 1678, Coleman’s Trial, 7 How. St.Tr.' 1, 65 (Coleman: “I came'home the last day of August”; L.C.J. Scroggs: “Have you any witness to prove that?”; Coleman: “I cannot say I have a witness”; L.C.J.: “Then you say nothing”); 1681, Colledge’s Trial, 8 How. St.Tr. 549, 681.

      . Levy, Origins of the Fifth Amendment, supra, at 324.

      . St. 1898, section 1.

      . Levy, Origins of the Fifth Amendment, supra, 336-338.

      .II Wigmore, supra, Section 579 at 701-02, fn. 4.


source: Caselaw Access Project

author: DOUGLAS, Judge. ROBERTS, Judge,

license: Public Domain

text:
    Andrew CARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 52550.
    Court of Criminal Appeals of Texas.
    March 30, 1977.
    Rehearing Denied May 25, 1977.

      Don W. King, Jr., San Antonio, for appellant.
    Ted Butler, Dist. Atty., E. Dickinson Ry-man, Sidney W. Cowan, Jr. and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Carter was convicted under Article 1408 of the former penal code for the offense of robbery by assault. After the court assessed the enhanced punishment at life, Carter gave notice of appeal.

The sufficiency of the evidence is not challenged. On February 20, 1973, appellant and a co-defendant, Jones, entered a jewelry store in San Antonio, and at gun point took from Elfriede Rhodes diamonds of the approximate value of between $70,-000 and $80,000.

Appellant contends that the court erred in admitting testimony at the guilt stage of the trial that he had been arrested in thirteen felony cases and that these had not resulted in convictions.

Appellant testified that he had pled guilty to two prior robberies. He said he did this because he was guilty of those offenses; that he pled not guilty to the instant offense because he did not commit the robbery. Appellant also judicially confessed to a shoplifting charge which was alleged to have occurred several months after the instant offense. Specifically, appellant was accused of stealing some men’s suits from J. C. Penney’s on July 10, 1973. He confessed to this to set up his defense that he was without funds shortly after he was alleged to have stolen some $70,000 to $80,000 worth of diamonds.

On direct examination he was also questioned about a separate burglary charge which was alleged to have occurred only three days after the diamond robbery. He testified to this to show his inability to make bail and further buttress the above-mentioned defensive theory. The following question was asked appellant concerning his detention for this separate burglary charge:

“Q. Okay. Now, that by no means — I want to make this clear to the jury — that was by no means the first time you had ever been in jail?
“A. No.”

He urges that his testimony did not open the door to evidence of all of his arrests and that, by virtue of the preceding question and answer, he did not leave the jury with the impression that the offenses he testified about were “the total extent of his trouble with the law.”

On cross-examination of the appellant the following occurred:

“Q. Have you ever been arrested for any other offenses besides the ones that you have testified about here today?
“A. Have I ever been arrested for any other charges?
“Q. Yes.
“A. No, sir, L haven’t:” '“

There was no objection to this questioning. The State later introduced the remaining extraneous arrests complained of.

In Nelson v. State, 503 S.W.2d 543 (Tex.Cr.App.1974), we held that generally charges of offenses are inadmissible for impeachment purposes unless the charges resulted in final convictions for felony offenses or final convictions involving moral turpitude, none of which are too remote. However, we noted in Nelson an exception to this rule. The exception arises when the witness leaves a false impression of his “trouble” with the police. In that situation it is legitimate to prove that the witness had been “in trouble” on occasions other than those about which he offered direct testimony. Id., at 545; accord, Reese v. State, 531 S.W.2d 638, 641 (Tex.Cr.App.1976). This contention is overruled.

Appellant next contends “[t]he trial court erred by allowing, over defendant’s objection, the prosecutor to repeatedly and deliberately inform the jury that the defendant’s wife had assisted in the prosecution of the case against the defendant.”

In effect, he is contending that the State violated Article 38.11, V.A.C.C.P., which provides, in part: “Neither husband nor wife shall, in any case, testify as to communications made by one to the other while married.”

Here is what happened. Appellant offered a newspaper clipping and it was admitted. This was a reproduction of a composite drawing of the two alleged robbers which had his wife’s name on it. This occurred during cross-examination of Elfriede Rhodes, the complaining witness, when appellant’s counsel offered the clipping into evidence as Defense Exhibit No. 1. The artist’s sketch was based on Rhodes’ description. Following its admission counsel asked and received permission from the court to show it to the jury. Before doing so an additional inquiry was made of the court as follows:

“MR. KING (Appellant’s counsel): Your Honor, I just noticed that there are some names and phone numbers on here which apparently someone scribbled. I would ask that the jury be instructed to disregard it or have it covered. I didn’t know there were some names on here.”

Before the court could respond, appellant’s counsel said: “That’s all right, I’ll withdraw that.”

The clipping which was admitted contained the following notations:

“Vivian A. Carter 4-24-75 5:45 P.M.
W. L. Tefteller 4-24-75 Case #32625(73)"

The testimony of Detective Tefteller showed that he had interviewed a woman in his office on April 24, 1975, and that as a result of that interview he was able to assemble a photographic lineup which included a photograph of appellant. On April 29, 1975, Rhodes identified appellant from this lineup. Tefteller further stated that he and the woman had signed and dated the clipping. He was later recalled by the State and it was at this time that the question which is the basis of this ground of error arose. The prosecutor asked Teftel-ler:

“Q. All right. Now do you know of your own knowledge the relationship, if there is any, between Vivian A. Carter and the Defendant in this cause, Andrew Carter?
“A. They represented themselves as being man and wife.”

Counsel objected as to any further questions from the prosecutor concerning any conversations with Vivian Carter. The court sustained the objection. He then objected on the basis of privileged communication and the court replied, “I’ll sustain as to any hearsay.” Appellant got all the relief he asked for. He did not ask for an instruction not to consider the answer. He is in no position to complain.

Appellant contends that this testimony allowed the State to do indirectly what it is prohibited by Article 38.11, V.A.C.C.P., from doing directly, showing that appellant’s wife was assisting in the prosecution of the case even though she had not testified.

The complained of action in the instant case cannot be construed as the wife assisting in the prosecution of the husband as condemned in Davis v. State, 160 Tex.Cr.R. 138, 268 S.W.2d 152 (1954); Davis v. State, 140 Tex.Cr.R. 597, 146 S.W.2d 994 (Tex.Cr.App.1941), and Johnigan v. State, 482 S.W.2d 209 (Tex.Cr.App.1972).

In Davis (1954), the State had proved that the defendant’s wife had gone to the home of a State’s witness after midnight during the course of the trial and, as a result of her visit, the witness had come to testify, which testimony was in impeachment of what Davis had said while on the stand. When Davis’ counsel objected the prosecutor said to the court: “We think that if the wife of this defendant comes and asks her to testify. . . . ” Also, during closing argument, a statement was made by the prosecutor to which Davis’ counsel objected on the ground that it was outside the record. Davis’ wife, seated on the front bench in the courtroom, jumped up and verified the statement in a voice loud enough to be heard by both the court and jury.

In reversing Davis’ conviction we held “. . . that it was improper for the State to prove that the appellant’s wife was actively participating in securing witnesses to refute his testimony.”

Further, we noted that “[i]n Davis v. State, 140 Tex.Cr.R. 597, 146 S.W.2d 994, we held that it was improper for the trial court to excuse the wife of the accused from the rule and permit her to sit at the counsel table with the district attorney and prompt him. We said that this was permitting the State to do indirectly what the statute prevented them from doing directly. We concluded that her active participation in the presentation of the State’s case was tantamount to a denial by her of the truthfulness of the appellant’s testimony.” In Johnigan v. State, supra, the State called the name of Johnigan’s wife as a witness during the trial. This Court held that this would have the effect of conveying to the jury that she would rebut his testimony if she were allowed to testify. That case is not in point.

In the instant case, appellant’s wife merely identified a composite drawing which later appeared in the newspaper. As a result of her action a photographic lineup was assembled five days later from which the complaining witness identified appellant. Appellant had not been charged with the offense at this time. Carter’s wife did not identify him in court, nor was her identification of the composite used in any manner to show his participation. Rhodes’ in-court identification was relied upon by the State. The record does not contain any other facts which purport to show that his wife assisted in his prosecution.

Further, appellant’s objection as to the hearsay of Tefteller’s answer, “They represented themselves as being man and wife,” was sustained. However, no objection was made during cross-examination of appellant when the prosecutor asked him if he was married to Vivian Carter. When testimony to the same effect as that objected to comes in without objection, error, if any, is made harmless. See Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974); Owens v. State, 503 S.W.2d 271 (Tex.Cr.App.1974), and 5 Tex.Jur.2d, Section 446, page 704.

In Lockhart v. State, 171 Tex.Cr.R. 648, 352 S.W.2d 749 (1961), the conviction was for driving while intoxicated. It was contended that reversible error was committed because statements made by defendant’s wife to officers were permitted to go before the jury. Judge Morrison for the Court wrote:

“Since appellant permitted the testimony of the witness Oliver to go to the jury without objection, any error in permitting the officers to testify as to what appellant’s wife told them was waived. Andrews v. State, 161 Tex.Cr.R. 550, 279 S.W.2d 331.”

That holding is applicable to the present case.

The complained of testimony here relates to an act by appellant’s wife, not the revelation of a communication between them. Nor is there any showing in this record of an attempt by the State to show that his wife would testify otherwise in order to impeach his testimony. There is no evidence of what Vivian Carter actually said to Tefteller.

The situation here is similar to that in Grundstom v. State, 456 S.W.2d 92 (Tex.Cr.App.1970), wherein we held it was not error for the trial court to admit into evidence certain burned clothes which Mrs. Grundstrom had turned over to police just after the robbery for which Grundstrom was convicted. There, as here, the wife did an act during the investigative stage of the offense.

Here, as in Grundstom, the complained of act does not amount to testimony of a communication between husband and wife as denounced by Article 38.11, supra. “The husband-wife privilege concerning testimony of communications applies to utterances and not acts. See McCormick & Ray, Texas Law of Evidence, 2d, Section 496: Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435, and Wigmore on Evidence, 3rd Edition, Sec. 2237.” Grundstrom v. State, supra, at page 93. In short, there is no showing of any communication between appellant and his wife. No reversible error has been shown.

The judgment is affirmed.

ROBERTS, Judge,

dissenting.

The appellant offered a newspaper clipping into evidence and it was admitted by the trial court. This clipping was a newspaper reproduction of an artist’s sketch of the two alleged robbers based on eyewitness description. Scrawled on the exhibit were the names of one Vivian A. Carter and one W. L. Tefteller. Nothing on the exhibit identified Vivian A. Carter as the wife of the defendant.

Detective Tefteller of the San Antonio Police Department testified that he interviewed a woman in his office on April 24, 1975. As a result of information received .from, this (Woman, Detective Tefteller put together a photographic lineup which included the photograph of the appellant. This was the lineup from which the complainant Rhodes identified the appellant on April 29, 1975.

Tefteller testified that both he and the woman he interviewed signed the newspaper reproduction of the artist’s sketch.

On redirect examination, Detective Tef-teller testified that to his knowledge Vivian A. Carter and the appellant were man and wife, and, over objection, that Vivian A. Carter was the woman he interviewed in his office that day.

When the prosecutor cross-examined the appellant, he established that on the date Vivian A. Carter went to Detective Teftel-ler’s office the appellant and she were not on good terms. The conclusion of the prosecutor’s cross-examination of the appellant was as follows:

“Q Smokey [appellant], isn’t it a fact that your wife and you and Pam Moore and Claude Jones [co-defendant] all sat in a room and discussed this heist before it took place?
“A No, sir.”

The disqualification of adverse spousal testimony cannot be waived. Johnigan v. State, 482 S.W.2d 209 (Tex.Cr.App.1972). Nor can the prosecution do indirectly what the statute prevents them from doing directly. Davis v. State, 160 Tex.Cr.R. 138, 268 S.W.2d 152, 153 (1954). Thus, we stated in Johnigan, that:

“This Court has held that it is reversible error for the State to show that the defendant’s wife is assisting in the prosecution of the case, even though she has not testified.” (Citations). Id., at 211.

I would sustain appellant’s contention and reverse. The record reflects prosecuto-rial tactics designed to convey to the jury the impression that appellant’s wife’s testimony would have been harmful to his defense, and that she assisted in the prosecution of the case. Nor can I deem these actions harmless. Witness Rhodes identified ■ appellant from a photographic lineup more than two years after the robbery. Witness Hardy viewed a live lineup on the same day, but could not positively identify appellant. Fingerprints were taken at the scene of the robbery, but none could be matched with the prints of either appellant or his co-defendant.

The judgment should be reversed and the cause remanded.

      . This is a companion case to Jones v. State, No. 52,551, affirmed in a per curiam opinion March 30, 1977.

      . Art. 38.11, V.A.C.C.P.


author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    McCoy JAMERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 52063.
    Court of Criminal Appeals of Texas.
    May 3, 1977.
    Rehearing Denied May 25, 1977.
    Melvyn Carson, Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Russell J. Ormesher, Frank W. Watts and Mike E. Schwille, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder with malice under the former Penal Code. The jury assessed punishment at death. On February 15, 1974, the Honorable Dolph Briscoe, Governor of Texas, commuted the punishment to life. Appellant was sentenced on April 15, 1974 and then gave notice of appeal.

The sufficiency of the evidence is not challenged. The record reflects that Lottie Irene Waddle co-managed a service station in Irving. She was robbed and murdered at the station on February 4, 1970. A customer discovered her body shortly after 1 p. m. She had been shot four times in the back.

On February 6, 1970, appellant was arrested in Grand Prairie for public intoxication. He confessed to the murder of Mrs. Waddle. At that time he also confessed to participation in three other offenses: a murder on January 20, 1970 m Pantego; Ja robbery on February 3,1970 in Grand Prairie; and a murder on February 4, 1970 in Grand Prairie.

By his first ground of error, the appellant contends that the court erred in admitting over objection the appellant’s confessions to the extraneous offenses along with other evidence of these crimes. The State urges that the evidence of the extraneous offenses was properly admitted to rebut the appellant’s defensive theory. Albrecht v. State, 486 S.W.2d 97,101 (Tex.Cr.App.1972).

The appellant attempted to raise the defense of insanity by showing that he was suffering from a mental disease or defect caused by chronic alcoholism. He introduced lay testimony to support this defensive theory. The only expert testimony adduced showed that appellant was sane at the time of the offense. The trial court charged on the issue of insanity as a defensive theory.

We must concern ourselves with whether the extraneous offenses had probative value in disproving appellant’s defensive theory because if the extraneous offenses tend to disprove a defensive theory, they should be admissible. Albrecht, supra.

There may be some defensive theories which are incapable of being logically rebutted by the proof of an extraneous offense. For example, the fact that one woman was raped has no tendency to prove that another woman did not consent. Caldwell v. State, 477 S.W.2d 877 (Tex.Cr.App.1972); Jackel v. State, 506 S.W.2d 229 (Tex.Cr.App.1974). It follows that the fact that two women were murdered while the appellant was apparently sane does not tend to prove that the third was murdered while he was not insane.

Furthermore, we stated in Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1973) that:

“. . proof of an extraneous offense is in no way probative of appellant’s state of mind at the time of the killing in the instant case.” Id., at 495. [Citing, Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972); Rodriguez v. State, 486 S.W.2d 355 (Tex.Cr.App.1972).]

We must sustain appellant’s contention and reverse. None of the exceptions to the rule against the admission of extraneous offenses apply, including rebuttal of a defensive theory. Albrecht, supra.

The judgment of the trial court is reversed and the cause is remanded.

DOUGLAS, Judge,

dissenting.

Jamerson was convicted for murder with malice under the former penal code. Lottie Irene Waddle was robbed and murdered at a service station where she worked on February 4, 1970. Twenty-five dollars was taken from the cash drawer. Some of the station’s inventory, including several containers of motor oil, STP and brake fluid, was also taken.

On February 6, 1970, appellant was arrested in Grand Prairie for public intoxication and placed in jail. His automobile contained several oil and STP cans. He confessed to the robbery-murder of Mrs. Waddle. He also confessed to participation in three other offenses: a robbery-murder on January 20, 1970 in Pantego; a robbery on February 3, 1970 in Grand Prairie; and a robbery-murder on February 4, 1970 in Grand Prairie.

Appellant executed a consent to search his residence. The murder weapon was found there.

In the instant case, appellant raised a defense of insanity resulting from chronic alcoholism. He introduced lay testimony to support the defense. The sole expert witness testified that appellant was sane at the time of the offense. Appellant raised the issue of mental disease or defect caused by chronic alcoholism. The trial court charged on the issue of insanity as a defensive theory. Appellant complains that the court erred in admitting evidence of the other robberies where murders were committed.

The testimony of the three other robberies tended to defeat the defensive issue of insanity and were admissible. The trial court followed the correct rule.

Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), sets out when extraneous offenses may be admissible. There the Court wrote that they are admissible “(6) [t]o refute a defensive theory raised by the accused.”

Insanity is a defensive issue raised by the accused in the present case. The evidence of the other robberies and murders committed in a like manner tends to defeat the defensive theory.

In Asay v. State, 456 S.W.2d 903 (Tex.Cr. App.1970), the conviction was for indecent exposure to a child. He testified that he was intoxicated at the time of the offense. The commission of another offense of like nature by him was proved. He contended that there was no exception to the rule prohibiting evidence of an extraneous offense. This Court held:

“. . . To the contrary, the testimony is admissible to rebut appellant’s testimony that he was intoxicated. 23 Tex.Jur.2d, Evidence, Sec. 195, n. 17. See also Rangel v. State, 171 Tex.Cr.R. 620, 352 S.W.2d 275.”

This question is governed by Sanders v. State, 449 S.W.2d 262 (Tex.Cr.App.1969). In Sanders, the accused was convicted of robbery. At trial he advanced a defensive theory of temporary insanity by reason of a psychomotor seizure. On appeal, he complained of the admission of two other robberies. We affirmed and held the evidence was admissible to rebut the defensive theory of insanity.

What is the difference between the two cases and the present case? They should be distinguished or overruled.

No error is shown. The judgment should be affirmed.

ONION, P. J., joins in this dissent.

      . Although not in force at the time of the instant offense, the new Penal Code provision which defines the defense of insanity supports the above reasoning. V.T.C.A., Penal Code, Section 8.01 provides:
      “(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.
      “(b) The term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”
      Under Subsection (b) of the above-quoted statute, the Legislature has provided that a defendant may not establish the defense of insanity by showing that he is a criminal generally. Consequently, we should not allow the State to rebut the defense of insanity by showing that the defendant is a criminal generally.


author: ODOM, Judge. DOUGLAS, Judge,

text:
    Antonio DeLAO, Appellant, v. The STATE of Texas, Appellee.
    No. 52868.
    Court of Criminal Appeals of Texas.
    May 11, 1977.

      Barry J. Brooks, Dallas, for appellant.
    Robert 0. Smith, Dist. Atty. and David A. Sheppard, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of heroin. Punishment was assessed at seven years’ confinement.

The sole ground of error contends that the trial court committed reversible error in denying appellant’s motion to suppress evidence found at the time of his arrest. The State urges that the evidence is admissible under the “plain view” doctrine.

On January 21, 1975, the appellant was wanted by the San Antonio Police Department for possession and sale of heroin. A San Antonio police officer notified the Austin Police Department that he had a warrant for appellant’s arrest and that he had information indicating that appellant was residing at a house located in Austin. The officer from San Antonio, accompanied by Austin policemen, proceeded to this residence.

The house appeared to be unoccupied. A surveillance of the residence was established and shortly thereafter the appellant opened a rear window, crawled out, and started “trotting” down the street. There is no evidence whatsoever that he had seen the officers before or at the time he left the house, or that he was fleeing. To the contrary, he was apprehended within a block of the house when he halted in response to the officer’s order.

According to his testimony at the examining trial, Officer Kenneth Williams of the Austin Police Department returned to the residence in order to secure the window opened by the appellant. The officer noticed a red balloon on the window sill just inside the residence. Williams seized this item and it was later discovered to contain heroin. This evidence was introduced at appellant’s trial in order to establish his commission of the offense alleged in the indictment.

Initially, we observe that this appeal does not involve evidence seized pursuant to a lawful search incident to an arrest. At the time the balloon was seized, appellant was away from the residence and in the custody of the police. He did not pose a threat to the officers, nor was he capable, at this time, of destroying any evidence located in the house. See, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

The “plain view” doctrine permits an officer to seize contraband which he sees in plain sight or open view if he is lawfully where he is. Jackson v. State, Tex.Cr.App., 489 S.W.2d 565. The facts of the case at bar, however, do not indicate that the officer saw contraband in plain view. In Nicholas v. State, Tex.Cr.App., 502 S.W.2d 169, at 172, we stated:

“In its discussion of the ‘plain view’ doctrine in Coolidge v. New Hampshire, supra, the Supreme Court said it must be ‘immediately apparent to the police that they have evidence before them;’ . .”

In the case at bar, the testimony taken at the examining trial establishes that the officer was not aware that incriminatory evidence was before him when he seized the balloon. Williams testified that he returned to the open window, saw a red balloon, and seized it.

The State urges that it is a well known fact that heroin is kept in balloons. The officer’s testimony, however, does not demonstrate that he was cognizant of this “well known” fact or immediately aware that heroin was in the balloon at the time of the seizure. Coolidge v. New Hampshire, supra; Nicholas v. State, supra. The seizure must be based on what was known by the officer at the time he acted, yet this record contains not a scintilla of evidence that the officer knew what the State now alleges in its brief on appeal is a “well known” fact. The burden was on the State to show facts authorizing the seizure here challenged. Had the State produced any evidence on this issue, there might have been shown a basis for its claim on appeal, but this was not done.

The circumstances of this case fail to establish that what was in “plain view” was evidence of any crime or criminal behavior. A red balloon in “plain view” on the window sill was not “contraband or fruits or instrumentalities” of any offense. Nicholas v. State, supra.

We also observe that the record does not reveal, nor does the State urge, that admission of the seized evidence was rendered harmless by the admission of other proper evidence of the same facts. Although the examining trial testimony, admitted by stipulation at the bench trial on guilt, does reveal testimony by the arresting officer of statements made by appellant after arrest, those statements do not invoke the rule mentioned (1) because the statements are not sufficiently unambiguous to constitute other evidence of the same facts, and (2) because those statements, being fruits of the illegal seizure, are not other proper evidence of the same facts. Furthermore, those statements were also objects of the same motion to suppress that was directed to the seized evidence.

Evidence obtained in violation of state or federal constitutional prohibitions against unreasonable seizures is inadmissible and must be suppressed upon proper motion. Smith v. State, Tex.Cr.App., 542 S.W.2d 420.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The majority reverses appellant’s conviction on the ground that the heroin filled balloon taken from his windowsill was seized during an illegal search and for this reason the admission of the heroin into evidence violated the Texas and United States Constitutions. The “plain view” doctrine applies.

The evidence must be immediately apparent to the police before the “plain view” doctrine obtains. The doctrine “may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583 (1971). But this rationale is not applicable to the instant case.

Officer Williams knew that appellant was wanted for possession of heroin. And it is common knowledge that users and sellers of narcotics carry the substance on their persons in rubber balloons, often called finger-stalls. See Guzman v. Estelle, 493 F.2d 532 (5th Cir. 1974). See also Bailey & Rothblatt, Handling Narcotic and Drug Cases, Section 298 (1972).

The officer was performing a legitimate function when he returned to appellant’s residence to secure the window. Cf. Robertson v. State, 541 S.W.2d 608 (Tex.Cr.App.1976), cert. denied - U.S. -, 97 S.Ct. 1145, 51 L.Ed.2d 563 (1977). Hence, the “plain view” doctrine is applicable and the heroin was properly admitted into evidence. Jackson v. State, 489 S.W.2d 565 (Tex.Cr.App.1973); United States v. Erwin, 507 F.2d 937 (5th Cir. 1975).

The majority views the events surrounding the seizure of the balloon in a vacuum.

This case does not involve the observation and seizure of an apparently innocuous item. Instead it concerns the confiscation of a commonly recognized drug container in plain and open view, such container belonging to a man arrested only moments before for possession and sale of heroin. This Court has consistently upheld “plain view” seizures in the past involving similar items. See, e. g., Simpson v. State, 486 S.W.2d 807 (Tex.Cr.App.1972) (matchbox); Cazares v. State, 488 S.W.2d 455 (Tex.Cr.App.1972) (matchbox).

The judgment should be affirmed.

      . 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.


author: DAVIS, Commissioner.

text:
    Ex parte Don Ray HAYWOOD.
    No. 54950.
    Court of Criminal Appeals of Texas.
    May 11, 1977.

      Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is a post-conviction writ of habeas corpus brought pursuant to Art. 11.07, V.A. C.C.P.

Petitioner was convicted for the offense of robbery by assault under the old Penal Code in Cause No. 196324 in the 183rd District Court. After the jury returned a verdict of guilty, the court assessed punishment at twenty years. No appeal was perfected.

Petitioner has filed his application for writ of habeas corpus in the trial court, contending that the indictment in this case was fundamentally defective for the reasons set out in Lucero v. State, Tex.Cr.App., 502 S.W.2d 128 and Bouie v. State, Tex.Cr. App., 528 S.W.2d 587. The trial court denied the application without findings of fact and conclusions of law.

In reviewing the record before this Court and the indictment in this cause, we are in agreement with petitioner that the indictment for robbery by assault is fatally defective for the same reasons set out in Lucero v. State, supra, and Bouie v. State, supra. See also Batro v. State, Tex.Cr.App., 531 S.W.2d 614; Page v. State, Tex. Cr.App., 532 S.W.2d 341; Jones v. State, Tex.Cr.App., 535 S.W.2d 184. These cases held that an indictment which failed to allege the party to whom the property allegedly taken belonged (in the robbery) was fundamentally defective.

A petitioner may challenge fundamentally defective indictments by way of a post-conviction application for writ of habe-as corpus. See Standley v. State, Tex.Cr.App., 517 S.W.2d 538; Ex parte Roberts, Tex.Cr.App., 522 S.W.2d 461; Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266; Ex parte Jones, Tex.Cr.App., 542 S.W.2d 179; Ex parte Davis, Tex.Cr.App., 547 S.W.2d 43.

The relief prayed for is granted and the prosecution under this indictment is ordered dismissed.

Opinion approved by the Court.


author: SPURLOCK, Justice.

text:
    TEXAS ELECTRIC SERVICE COMPANY, Appellant, v. V. D. WHEELER et al., Appellees.
    No. 17721.
    Court of Civil Appeals of Texas, Fort Worth.
    June 4, 1976.
    Rehearing Denied July 1, 1976.

      Cantey, Hanger, Gooch, Cravens & Munn, Jack C. Wessler and S. G. Johndroe III, Fort Worth, Chandler & Chandler, and Joseph A. Chandler, Stephenville, for appellant.
    McMillan & Lewellen, and C. 0. McMillan, Stephenville, Dixon & Petrovich, and Jimmie C. Dixon, Granbury, for appellees.
   OPINION

SPURLOCK, Justice.

Appellant, Texas Electric Service Company, hereinafter referred to as TESCO, or condemnor, instituted a statutory condemnation proceeding before the County Judge of Hood County, Texas, against appellees, V. D. Wheeler and wife, Zelma Wheeler, and David Wheeler, their son and tenant, a part time farmer, hereinafter referred to as owners, Wheelers, or condemnees, for the condemnation of a right-of-way across the land owned by Mr. Wheeler and wife. After due proceedings were had before special commissioners the Wheelers appealed to the District Court of Hood County, Texas, where said case was tried before a jury. TESCO appeals only from that part of the judgment awarding damages to the “remainder” of the property. The appeal is predicated upon “no evidence” and “insufficient evidence” points concerning testimony in support of the jury’s findings.

We affirm.

TESCO is a public utility operating in north central, east, and west Texas, and at the time of trial was engaged in the construction of the first nuclear-power generating plant to be built in Texas. The plant is located in both Hood and Somervell counties, southwest of Fort Worth. On December 18, 1974, TESCO acquired a permanent easement of a strip 240' wide across the owners’ land for the purpose of constructing and using the land for any purpose for which it was needed in connection with the construction of electric transmission lines and two 48" water lines and the use of the easement thereafter. In addition thereto they acquired a 50' strip adjoining the easement in the nature of a temporary easement to be used during the construction of the electric and water lines.

The tract of land involved consisted of 316.239 acres. The permanent easement consisted of 16.972 acres and the temporary easement consisted of 3.539 acres, leaving a remainder of 295.728 acres.

In accordance with the stipulation of the parties the jury was instructed that the easement was acquired on December 18, 1974. The jury was carefully instructed concerning the nature of the easement and the rights acquired by TESCO, including the right to repair, inspect, control, remove obstructions therefrom, and other rights. They were given a correct definition of “market value”. TESCO did not object to any of the court’s charges or instructions contained therein.

In summary form the jury found: (1) that the value of the land on which the permanent easement was sought immediately before the taking was $1,100.00 per acre, (2) the value of the same land immediately after the taking was $50.00 per acre, (3) the value of the remainder of the land immediately before the taking was $1,100.00 per acre, (4) its value after its taking was $650.00 per acre, and (5) the damage suffered by reason of the taking of the temporary easement was $500.00.

TESCO does not question the jury’s finding that the value of the land taken for the permanent easement was $1,100.00 per acre before the taking, its value thereafter, nor the damages found because of the taking of the temporary easement. The controversy stems from the jury’s findings of diminution of the value of the residue.

TESCO, by its point of error No. 1, asserts the trial court erred in rendering judgment for the owners because there was “no evidence” to support the jury’s answer to Special Issue No. 3 that the remainder of the land not within the easement had a value of $1,100.00 per acre before the taking.

By its point of error No. 3 it assigns an “insufficient evidence” point to the jury’s answer to the above issue.

By its points of error Nos. 2 and 4 TES-CO assigns as its points of error that there is “no evidence” and “insufficient evidence” to support the jury’s findings of the value of the remainder before and after the taking.

We first direct our attention to the “no evidence” points. In passing on these points we are required to view the evidence in the light most favorable to the jury’s findings and disregard all evidence which is contrary thereto. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In determining whether the evidence is “insufficient” to support the jury’s findings, the reviewing court must review all the evidence. State v. Haire, 334 S.W.2d 488 (Tex.Civ.App., Austin, 1960, ref., n. r. e.).

Maurice Wendt, TESCO’s representative during the trial, being their Engineering Manager in charge of all the design of construction of all transmission lines for the company, was called as an adverse witness. He testified that the land was being taken for the purpose of transmitting electricity and water across the property in connection with TESCO’s construction and operation of its first nuclear power plant which was being built within a distance of a few miles from the land in question. This plant would generate 22,000 million watts. The company would construct steel poles on the easement 105' tall, electricity would be conducted through aluminum wire 1.1" in diameter or 3" in circumference. The wires would come no closer than 26½' from the surface of the land. The steel poles would have three wires which would conduct 345,-000 volts and would have shield wires above them. Condemnees’ land was 5 miles from Lake Granbury and 3 miles from Squaw Creek Lake. There would be 3100' of wire crossing the owners’ property which would weigh one pound per foot.

The second row of poles consisted of wooden poles with H-frames conducting 138,000 volts through three lines with shield wires above them.

It was shown that this nuclear plant would supply some electricity for metropolitan Dallas-Fort Worth, a portion of east Texas, a portion of west Texas, and as far south as Waco, Texas.

Water would be transported by pipeline from Lake Granbury across owners’ property into Squaw Creek and then to the nuclear plant where it will be used in the generating process. It is then pumped into a small lake near the plant and transported by another pipeline across the owners’ property to Lake Granbury where the cycle starts again.

V. D. Wheeler, one of the owners of the land, testified that he and his family had lived on the land involved for the past 14 years. He bought this property before Lake Granbury was built and since then the land had increased greatly in value because of the influx of people from the metropolitan areas seeking to avoid congestion and to buy small tracts of land on which to build homes and reside. The property is ½ mile from Mitchell Bend in the region below Lake Granbury dam. It is near land that has been subdivided, such as Indian Harbor and other subdivisions, the highest and best use of the land when he bought it was for irrigated farming but at the time of the taking its highest and best use was for subdivision purposes.

A gas pipeline crosses the land from the NW to SE. TESCO’s easement would cross SW to NE, creating an “X”. This would “kill” about 100 acres of land in that particular area for the purpose of cutting it into small acres. Wheeler testified that the transmission poles and wires were unsightly and would depreciate the market value of the remainder of the property. He had planned to subdivide his farm before the taking. He was familiar with the market value of the land in the area and was aware of the fact that the nearby Williams tract of land, a comparable tract, had recently been sold on the open market for $1,500.00 per acre. He had been pricing land and knew the market value of his property. He testified that the market value of the remainder of his property was $1,500.00 per acre prior to the taking and $500.00 per acre after the taking.

David Wheeler, son of the owner and tenant on the farm, testified that land in the area was being subdivided into small tracts such as the Brazos River Acres and the River Community, just east of the owners’ property, there were two gas lines crossing the property underground and buried about 7' deep, the owners had made plats and rough sketches on how they had planned to subdivide the property, they had managed to work around the gas lines, and that the TESCO easement destroyed con-demnees’ land for subdivision purposes.

Thomas B. King, a licensed surveyor, was in the process of preparing a county-wide ownership map and had completed the part of the map that included the Wheeler property. He had subdivided an 800 acre tract in the Mitchell Bend area. He enumerated numerous tracts that had been subdivided into lots or tracts of 10-15 acres. He had discussed with the owners the possibility of subdividing their land. He had prepared a plat showing a proposed subdivision of the Wheeler property, working around the existing gas pipeline easement. This plat was placed in evidence as defendant’s Exhibit No. 4. It was admitted for the limited purpose of showing that the land was adaptable for land subdivision.

Vernon Thomas testified that he is a licensed real estate broker, has been in the appraisal business for 15-16 years, was appraiser for the American Appraisal Company of Milwaukee and was a staff appraiser for the Texas Highway Department, had made appraisals all over Central and West Texas, as well as in New Mexico, Oklahoma, Ohio, Wisconsin, Georgia, Florida, and other states, and had done appraisals for the U’. S. Corps of Engineers. He testified that the highest and best use of the property involved was for small tract developments such as small acreage and ranchette-type tracts, it was a growing area and there had been 21,000 property transfers during the last 3-4 years. He had appraised the property in question and used a comparable sales approach in arriving at his opinion concerning the fair market value. His five comparable sales are as follows:

(1) Hidalgo to Knipe: a 1973 sale of 72 acres for $1,000.00 per acre;

(2) Peters to Blaylock: a 1973 sale of 65 acres for $700.00 per acre;

(3) Wallace to Goldsmith: a 1972 sale of 50 acres for $947.00 per acre;

(4) Williams to Hyde: a 1974 sale of 30 acres for $1,500.00 per acre;

(5) Ballard to Pearson: a 1973 sale of 245 acres for $1,000.00 per acre.

He was of the opinion that the fair market value of the remainder of condemnees’ property immediately before the taking was $1,000.00 per acre and $400.00 per acre thereafter. Its highest and best use would change from property desirable for subdivision purposes to that of peanut farming. The easement would restrict the use of the land and adversely affect its marketability.

He further testified that the electricity conducted through the transmission lines would interfere with TV and radio reception and would distort TV pictures.

There was further testimony from the owners that this property had 2 water wells and 4 ponds located on it. One of the wells produced 400 gallons per minute and was 500' deep. It was used for irrigating 100 acres of peanuts and 75 acres of coastal bermuda grass. The irrigation water was carried by aluminum pipes from the well to the irrigated areas. Volume guns were used that distributed water 330' horizontally and 45' high. The pipe was in 30' sections. There was danger that water or spray could come in contact with high voltage lines and thus conduct electricity through the water into the aluminum pipes and create a hazardous condition. It would interfere with the irrigation process. Prospective buyers would not pay the same sum of money for land containing unsightly high voltage electric wires across it when they could go across the farm-market road and buy land without the unsightly and dangerous towers for the same amount. These wires depreciated the value of the land. Various maps, charts and diagrams of this property and the adjoining area were admitted into evidence.

Jim Daniels, an appraiser for TESCO, agreed that before the taking the highest and best use of the Wheeler land was for small acre development. He testified that the value of the residue before the taking was $850.00 per acre, and $850.00 per acre after the taking. On cross-examination he admitted that some of the sales he had used as comparables were not irrigated or cultivated land and some had no irrigation available and that he had made a “windshield” appraisal of another comparable tract.

The thrust of TESCO’s claimed error is that the owners failed to prove the damage to the remainder because they failed to show the nature of the damage, its effects on the various portions of the tract and the relationship of the same to market value.

The above rule applies to a party claiming damages but not to the testimony of expert value witnesses. Coastal Industrial Water Authority v. Reynolds, 503 S.W.2d 593 (Tex.Civ.App., Houston, 1st Dist., 1973, ref., n. r. e.); City of Houston v. McFadden, 420 S.W.2d 811 (Tex.Civ.App., Houston, 14th Dist., 1967, ref., n. r. e.); State v. Holland, 453 S.W.2d 871 (Tex.Civ.App., Tyler, 1970, no writ hist.); State v. Scarborough, 383 S.W.2d 839 (Tex.Civ.App., Texarkana, 1964, ref., n. r. e.).

It is our opinion that the owners’ testimony constituted admissible testimony and testimony of probative value concerning market value and met the requirements of the above test which is stated in Tennessee Gas & Transmission Co. v. Zirjacks, 244 S.W.2d 837 (Tex.Civ.App., San Antonio, 1951, writ dism.).

In any event such error, if any, is harmless because an analysis of the testimony shows that the jury awarded less damages than the damages testified to by the owners’ expert witness.

The owners, in testifying to the before and after value, testified that the value before as being $1,500.00 and the value after as being only $500.00, being $1,000.00 per acre diminution in value. The owners’ expert, Vernon Thomas, testified the value before was $1,000.00 and the value after was only $400.00, being $600.00 per acre diminution in value. The jury found $1,100.00 before and $650.00 after, representing a $450.00 per acre diminution in value. This is $150.00 per acre diminution in value less than that testified to by the owners’ expert witness. In addition thereto the jury found the fair market value before the taking at $1,100.00, which is $400.00 less than the comparable sale of Williams to Hyde, testified to by the owners’ expert witness.

TESCO relies upon the following authorities to sustain its position: Tennessee Gas & Transmission Co. v. Zirjacks, supra; City of Cedar Hill v. Wheeler, 326 S.W.2d 236 (Tex. Civ.App., Dallas, 1959, ref., n. r. e.); Natural Gas Pipeline Co. of America v. Mitchell, 440 S.W.2d 415 (Tex.Civ.App., Beaumont, 1969, ref., n. r. e.); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (Tex.Com.App., 1936); Texas Electric Service Company v. Vest, 310 S.W.2d 733 (Tex.Civ.App., El Paso, 1958, ref., n. r. e.); Texas Electric Service Company v. Yater, 494 S.W.2d 271 (Tex.Civ.App., El Paso, 1973, ref., n. r. e.); Texas Electric Service Company v. Campbell, 161 Tex. 77, 336 S.W.2d 742 (1960).

In the case of Texas Electric Service Company v. Yater, supra, cited by TESCO, that court found that the following testimony, referring to the construction of electric lines across the owner’s property, was adequate to support the opinion of appellee’s witness as to the damage to the remainder when the property is considered as adaptable to rural homesites. That court stated:

“This support is in the testimony that the towers and cables are unsightly and would hurt the general appearance of the land; that radio and television reception would be adversely affected, that prospective purchasers would be frightened that their children might be hurt playing near the towers and the existence of a general fear in homeowners from lightning and of being near the lines during storms. . . . The cases which distinguish the Zirjacks doctrine are applicable here. Texas Power & Light Company v. Trinity Valley Ranch Company, 395 S.W.2d 866 (Tex.Civ.App.-Dallas 1965, no writ); Texas Electric Service Company v. Etheredge, 324 S.W.2d 322 (Tex.Civ.App.-Eastland 1959, no writ).’.’

The eases cited by TESCO are clearly distinguishable from the facts in this case. These cases are analyzed and distinguished in Southwestern Bell Telephone Company v. Griffin, 429 S.W.2d 576 (Tex.Civ.App., Texarkana, 1968, no writ hist.) and State v. Scarborough, supra.

We will not unduly lengthen this opinion by again analyzing these cases cited by TESCO and showing why they are distinguishable from the case before us because this analysis is so ably made in the two cases cited above.

The record reflects there is evidence of probative value supporting the jury’s findings concerning damage to the remainder. TESCO’s “no evidence points” are overruled.

Here the facts of damage to the residue are in the record and the witnesses are acquainted with such facts. Their testimony translated this damage into a diminished market value. The maps, plats, and exhibits admitted into evidence aided the jury in their understanding of the factors of diminished market value of the residue.

Jurors are not compelled to credit all the testimony of any witness or to reject it all. Opinion evidence is not conclusive. The jury is at liberty to reach its conclusion by blending all the evidence admitted before it, aided by its members’ own experience and knowledge of the subject of inquiry. A jury may consider and accept or reject opinions or it may find its own opinion from evidence and by utilizing its own experience in matters of common knowledge. Coastal Industrial Water Authority v. Reynolds, supra; Roberts v. State, 350 S.W.2d 388 (Tex.Civ.App., Dallas, 1961, no writ hist.); McCarthy v. City of Amarillo, 307 S.W.2d 595 (Tex.Civ.App., Austin, 1957, no writ hist.); Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 (1944); State v. Haire, supra.

We hold that the evidence is sufficient to support the jury’s findings concerning the before and after value of the residue.

These points are overruled.

Judgment is affirmed.