text:
    Johnny Odis WOODS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 21, 1977.
    Certiorari Denied by Supreme Court May 9, 1977.

      Jay Fred Friedman, Memphis, for appellant.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Richard S. McNeese, Asst. Dist. Atty. Gen., William E. Frulla, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

TATUM, Judge.

The appellant was convicted in Shelby County for possession of marijuana with intent to sell. His punishment was fixed at not less than 2 years nor more than 5 years in the State Penitentiary and a fine of $2,000.00. We affirm the conviction.

On July 20, 1975, a search warrant was executed by police officers in order to search the residence of the appellant. As a result of the search, 165 pounds of marijuana and $13,000.00 in cash was seized. The appellant does not assail the sufficiency of the evidence, but says that the conviction should be reversed because the Court did not allow him a continuance and because the evidence should have been suppressed. The appellant also says that the Court erred in charging the jury with regard to parole and probation.

Immediately prior to the beginning of the trial, the appellant’s counsel made an oral motion for a continuance to enable him “to procure witnesses and further investigate the case”. The motion was not supported by affidavit. The Court was not apprised as to what witnesses the appellant proposed to procure or what the nature of their testimony was expected to be. The Trial Court denied the continuance and the appellant assigns this as error.

The appellant was indicted on October 28, 1975. He was arraigned on November 14, 1975. The case was originally set for trial on January 13, 1976, and was continued to January 27, 1976, at which time it was again continued to February 2, 1976. On February 2, it was reset for February 3, 1976, at which time the trial commenced.

T.C.A. § 19-413 requires that applications for continuances for the purpose of obtaining evidence be supported by a filed affidavit specifying the testimony relied upon. Baxter v. State, 503 S.W.2d 226 (Tenn.Cr.App.1973); Maxwell v. State, 501 S.W.2d 577 (Tenn.Cr.App.1973). A motion for a continuance is addressed to the sole discretion of the Trial Judge. The judgment of the Trial Judge will not be disturbed in the absence of a clear showing of an afyise of discretion, to the prejudice of the defendant. Baxter v. State, supra; Moorehead v. State, 219 Tenn. 271, 409 S.W.2d 357 (1966). Upon this record, we cannot say that the Trial Court abused its discretion to the prejudice of the defendant in denying his motion for a continuance. Assignment I is overruled.

The second assignment of error is that the Court erred in not granting the appellant’s motion to suppress evidence. The motion was based upon allegations of fraud. Under this assignment, the appellant also argues that the search warrant was insufficient on its face to establish probable cause for its issuance, and that the affidavit for the warrant was sworn to by an officer not having any knowledge of the reliability of the informant mentioned in the affidavit.

The search warrant was obtained from a General Sessions Judge of Shelby County on July 20,1975. The affidavit stated: “On July 20, 1975, the affiants talked to a reliable informer, who has given the affiants information in the past which they found to be true and correct. This reliable informer stated that within the past three (3) days this reliable informer has been inside the above described premises and has seen John Woods storing and selling marijuana inside these premises”.

In challenging the sufficiency of the affidavit, the appellant relies on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The information given by the informant came from his personal observations of the offense and the items to be seized. He had previously supplied accurate information to the law enforcement officers. Under the rules laid down in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); and Dishman v. State, 3 Tenn.Cr.App. 725, 460 S.W.2d 855 (1970), this affidavit is sufficient for an independent determination, by a neutral officer, that probable cause existed.

In neither Aguilar nor Spinelli was the affidavit based upon information received from an eye-witness to the offense. The affidavit before us specifically states that the informant has given correct information in the past and that the affidavit was based upon the informer’s personal observation of the offense. It is not necessary that the affidavit detail the reliable information given by the informant in the past. The affidavit is sufficient. See, Owens v. State, 217 Tenn. 544, 399 S.W.2d 507 (1966), and the cases cited therein.

The appellant alleged that fraud was involved in procuring the search warrant. The Trial Judge permitted the appellant to cross-examine the two officers who gave the affidavit for the search warrant, in an effort to show that the affidavit was fraudulent.

The facts stated in the affidavit upon which a search warrant is issued are not subject to contradiction at the trial for the purpose of suppressing the evidence secured by means of the search warrant, absent fraud or collusion. Solomon v. State, 203 Tenn. 583, 315 S.W.2d 99 (1958); Squires v. State, 525 S.W.2d 686 (Tenn.Cr.App.1975); Poole v. State, 4 Tenn.Cr.App. 41, 467 S.W.2d 826 (1971). However, at the hearing outside the presence of the jury, there was no evidence indicating fraud in procuring the search warrant. Officer Case testified that she talked with the informant between July 17 and 19, 1975. She said that the informant worked for her regularly and told her that marijuana was being stored in the residence of the appellant. On July 20, 1975, she and Sgt. Sanders talked with Officer Davis of the Hernando, Mississippi Police Department, and with two persons Officer Davis had in custody on drug charges in Mississippi. These two suspects implicated the appellant’s residence as a place where marijuana was stored, but Officer Case said that she did not use this information in procuring the search warrant because she could not vouch for the reliability of these two persons.

Upon returning to Memphis from Her-nando, Mississippi on July 20, Officer Case contacted the informant who had recently given her information about the appellant. He confirmed this information and Officers Case and Sanders based their affidavit for the search warrant on the information given her by the regular informant. She did not mention the information she had obtained from the two individuals in custody at Hernando, Mississippi, in the affidavit. After trial, the appellant filed an affidavit signed by Officer Davis, stating that Officer Case and Sgt. Sanders did not inform him, “that they knew about the people who were arrested or that there was any investigation that this information aided in”. The affidavit does not contradict the testimony of Officers Case and Sanders or the affidavit for the search warrant. It was not unusual that Officers Case and Sanders did not tell the Mississippi Officer about their confidential informant.

Both Officer Case and Sgt. Sanders signed the affidavit. Sgt. Sanders' testimony was substantially the same as that of Officer Case, but he stated that he was not personally acquainted with the informant who gave the facts upon which the affidavit was based. He said that he had been previously involved in a telephone conversation with the informant when the informant gave reliable information concerning law violations, although he had not dealt with the informant “directly”. There is no evidence that either Officer Case or Sgt. Sanders gave the affidavit fraudulently. The evidence is to the contrary.

The Trial Judge’s ruling on questions of law are conclusive unless the evidence preponderates against his findings. His findings will be given the weight of a jury verdict. See, Taylor v. State, 180 Tenn. 62, 171 S.W.2d 403 (1943); Janow v. State, 4 Tenn.Cr.App. 195, 470 S.W.2d 19 (1971). The evidence in this case does not preponderate against the finding of the Trial Judge that there was no fraud in procuring the search warrant.

The Trial Court permitted the appellant to attack the veracity of the affidavit for the search warrant on the mere allegation by counsel in open court that the affidavit was fraudulent. This was error. We hold that the defendant must initially show by affidavit of persons having personal knowledge of the facts, or other evidence, that the search warrant was procured by the officers either through perjury or collusion before the defendant can delve below the surface of a facially sufficient affidavit. The mere unsupported allegation of fraud is insufficient. United States v. Luna, 525 F.2d 4 (6th Cir. 1975); United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973). Evidence should not be suppressed unless the trial court finds that the warrant is obtained by actual fraud or collusion. An innocent or mere negligent misrepresentation is not sufficient to invalidate a warrant or nullify a search. United States v. Luna, supra; Solomon v. State, supra.

In United States v. Luna, supra, the United States Court of Appeals, Sixth Circuit, adopted a procedure requiring a party attacking a facially sufficient affidavit to first submit prima facie proof of grounds for such attack before being entitled to a hearing on the validity of the affidavit and warrant, then stated:

“However, once such a hearing is granted, more must be shown to suppress the evidence. Evidence should not be suppressed unless the trial court finds that the government agent was either recklessly or intentionally untruthful. A completely innocent misrepresentation is not sufficient for two reasons. Most importantly, the primary justification for the exclusionary rule is to deter police misconduct (see Kipperman, supra, at 831, and cases cited), and good faith errors cannot be deterred. Furthermore, such errors do not negate probable cause. If an agent reasonably believes facts which on their face indicate that a crime has probably been committed, then even if mistaken he has probable cause to believe that a crime has been committed. Such errors are likelier and more tolerable during the early stages of the criminal process, for issuance of a warrant is not equivalent to conviction.
Negligent misrepresentations are theoretically deterrable, but no workable test suggests itself for determining whether an officer was negligent or completely innocent in not checking his facts further. We therefore conclude that evidence should not be suppressed unless the officer was at least reckless in his misrepresentation. Even where the officer is reckless, if the misrepresentation is immaterial, it did not affect the issuance of the warrant and there is no justification for suppressing the evidence. Arguably, the same conclusion could be reached as to deliberate but immaterial misrepresentations. However, we conclude that if deliberate government perjury should ever be shown, the court need not inquire as to the materiality of the perjury. The fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing.” 525 F.2d 4, at 7. Assignment II is overruled.

The appellant’s third assignment of error is that the Trial Court erred in allowing the search warrant to be introduced into evidence. The appellant did not assign this as error in his Motion for a New Trial and therefore, we cannot consider this assignment. Tenn.Sup.Ct.R., Rule 14(5); Whisnant v. State, 532 S.W.2d 572 (Tenn.Cr.App.1975); Henley v. State, 520 S.W.2d 361 (Tenn.Cr.App.1974). However, there is no merit in this assignment as there was compliance with T.C.A. §§ 40-516 and 40-518. The fact that the search warrant, after its return, was kept in the District Attorney General’s office or elsewhere for a time does not invalidate the search or nullify the search warrant.

The Trial Judge charged the jury concerning parole under T.C.A. § 40-2707 and the appellant assigns this as error, citing Farris v. State, 535 S.W.2d 608 (Tenn.1976). The evidence of the appellant’s guilt is overwhelming. He was shown to have in his possession 165 pounds of marijuana. We are convinced beyond a reasonable doubt that the Trial Judge’s instructions to the jury concerning parole violations did not affect the results of the trial either as to guilt or to punishment. Therefore, under the mandate of Farris, — “let every tub stand on its own bottom” — we must overrule this assignment.

The judgment of the Criminal Court of Shelby County is affirmed.

WALKER, P. J., and RUSSELL, J., concur.


source: Caselaw Access Project

author: BYERS, Judge.

license: Public Domain

text:
    Brenda McKINNEY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 17, 1977.
    Certiorari Denied by Supreme Court May 9, 1977.

      Michael Edwards, Hendersonville, for appellant.
    Brooks McLemore, Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, O’Brien Price, Dist. Atty. Gen., Springfield, for ap-pellee.
   OPINION

BYERS, Judge.

The Appellant was found guilty of violation of T.C.A. § 39 — 4202—larceny—in the Criminal Court of Sumner County and sentenced to serve not less than three (3) years nor more than three (3) years in the penitentiary.

The Appellant says the evidence is insufficient to support the verdict of the jury and that the evidence preponderates Against the verdict of the jury, that the conviction is based only upon the uncorroborated testimony of an accomplice, and that the trial court prevented the Appellant from showing good character on the question of whether she would commit a crime.

We overrule the assignments of error and affirm the judgment.

This case is somewhat unique because the allegations against the Appellant are that she, the manager of a convenience market, conspired with her nephew, Randall Blair, to have him enter the store and fake an armed robbery of the business, and that afterward, Blair divided the money obtained with the Appellant.

On the morning of March 16, 1976, at approximately 9:30 a.m., Sumner County officers, and an agent of the T.B.I. went to the Majik Mart in Sumner County in response to a report of an armed robbery. When they arrived, the Appellant reported that two (2) men had entered the market and, by use of a pistol, caused her to surrender to them money, money orders, checks, and a money order writing machine which belonged to the Majik Mart, a business owned by Munford Foods, Inc. The Appellant described the two (2) men but related she did not know either of them. During the occurrence she stated the pistol was fired with the bullet going into the ceiling. The officers found an empty shell on the floor.

While the officers were questioning the Appellant, Randall Blair and a man named Timothy Powers arrived at the market in a vehicle. When these men appeared, the Appellant fainted. The Appellant was taken to the hospital and remained a patient for some time.

The officers were informed by witnesses that a 1957 Chevrolet automobile, white, with mag wheels, was seen at the market at the approximate time of the reported robbery. As a result of this information, the officers located a similar vehicle later in the day. When the vehicle was stopped, it was occupied by Randall Blair,- Timothy Powers, and Robert Blair. These three (3) men denied any knowledge of the events at the Majik Mart and were released.

The evidence shows that Blair had thrown the check writing machine into a creek. He, along with Timothy Powers, had disposed of checks and other unwanted items throwing them in a river. A message, of disputed origin, was given to Randall Blair, directing him to call the Appellant at the hospital. This message was written on an envelope at the home of the Appellant’s mother.

On the afternoon of the day of this event, Randall Blair went to a service station where a sixteen (16) year old boy named James Crunk worked. Blair gave young Crunk the envelope on which the message directing him to call the Appellant was written, two hundred twenty-seven dollars and twenty cents ($227.20) in currency, and a .25 caliber pistol. Blair asked Crunk to get rid of the pistol, and to deliver the money to the Appellant and tell her that was her share from the market. The amount of money taken from the Majik Mart was four hundred fifty-nine dollars and sixty-four cents ($459.64). Blair then left Tennessee and went to Oklahoma.

James Crunk became concerned about the items in his possession because an officer visited the station and informed him that they knew Blair had been there. Subsequently, after talking with relatives, Crunk delivered these items to the police. The following day, Blair called Crunk from Oklahoma. Crunk informed Blair that he had given the items left with him to the police.

Blair testified that after he called Crunk and received the information that the police had the items he called the Appellant at the hospital. The Appellant says that she never received this call. However, an employee of the telephone company testified that a call was made from Oklahoma by Randall Blair to a person of the same name as the Appellant at the hospital in Tennessee. This employee testified that the call was charged to a Tennessee phone number listed in the Appellant’s name. This conversation lasted approximately fifteen (15) minutes.

Blair testified that in the conversation the Appellant advised him to not say anything that the police knew nothing. Blair says he told Appellant that James Crunk had gone to the police.

Sometime after this call, an officer testified that the Appellant called him at the police station and reported that she recalled who had robbed her. She reported that it was James Crunk and a boy named Mike who had committed the crime.

The T.B.I. ran a ballistic comparison on the .25 caliber shell found at the market and on the .25 caliber pistol which Blair had given Crunk. The comparison showed the shell had been fired from this pistol.

The Appellant maintains in her testimony that she was the victim of an armed robbery and that she did not conspire or confederate with Blair to take her employer’s money.

The Appellant’s insistence that there was insufficient corroboration of the accomplice Blair’s testimony is not well taken.

The rule is that there must be some fact testified to, entirely independent of the accomplice’s testimony which, taken by itself, leads to an inference, not only that a crime has been committed, but also that the accused is implicated in the crime. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460 (1963). The corroborative evidence may be direct or circumstantial. It need not be, of itself, sufficient to support a conviction. If the corroborating evidence fairly and legitimately tends to connect the accused with the commission of the crime charged, it satisfies the requirement of the rule on corroboration of an accomplice’s testimony. Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959). Slight circumstances may be sufficient to furnish the necessary corroboration of an accomplice’s testimony. Garton v. State, 206 Tenn. 79, 332 S.W.2d 169 (1960). The question of corroboration of an accomplice's testimony is for the jury to determine. Clapp v. State, 94 Tenn. 186, 30 S.W. 214 (1895). The jury may look at all the evidence in the case and draw reasonable inferences therefrom.

As said by the Court in Hawkins v. State, 4 Tenn.Crim.App. 121, 469 S.W.2d 515 (1971):

“The quantum of evidence sufficient to corroborate the testimony of an accomplice is for the determination of the jury. From the facts proved in evidence the jury is entitled to draw reasonable inferences, and this Court may not substitute its judgment or inference for those of the jury.”

We are of the opinion, in this case, that the accomplice, Randall Blair’s, testimony was corroborated in several aspects. Independent evidence shows that a gun which was in the possession of Blair during the alleged robbery was fired in the interior of the Majik Mart at the time of the event. Thus, it is reasonable to assume he was present in the market as he said. Blair is the nephew of the Appellant. The Appellant reported to the officers that she did not know who had robbed her. There is evidence that after she learned from Blair that Crunk had turned certain evidence over to the police, she called the police and reported that she recalled that it was Crunk and another man who robbed her. There is evidence, also, that soon after the offense an effort was made to have Blair contact the Appellant at the hospital. The jury could reasonably conclude that the Appellant initiated this move. The Appellant says that she did not receive a call from Blair while he was in Oklahoma. The evidence strongly supports the inference that she did. Crunk testified that Blair gave him a sum of money practically equal to half of the sum taken and said it was for the Appellant. The police received the money from Crunk along with an envelope listing the Appellant’s name and the hospital where she was a patient.

We think the evidence developed in this case, not only by independent witnesses, but also by the actions of the participants, was sufficient for the jury to find that the accomplice’s testimony was corroborated.

We think the action of the trial judge in excluding the evidence of Appellant’s good character offered through one of the witnesses was error. However, it was harmless error.

The Appellant, prior to testifying, wished to show through her mother that she was of good character. When the State objected, the trial judge ruled that until a person had testified that character evidence showing their credibility as a witness is not admissa-ble.

The trial judge is correct on his ruling as to the question of credibility of a person as a witness who has not testified. However, in a criminal prosecution, the issue of good character and reputation is two pronged. A person accused of a crime is entitled to have evidence of their good character shown as tending to show that they would not commit a crime. In addition, if testifying as a witness, they may show good character and reputation in support of the proposition that their testimony is entitled to full faith and credit by the jury. An accused may not, of course, show evidence of his credibility as a witness by the use of character witnesses unless he first testifies. This is so because his credibility as a witness is not at issue until he testifies. However, an accused may offer evidence of his good character and reputation as tending to show that he would not commit a crime, and the jury may consider this along with the other evidence to determine if there is reasonable doubt of an accused’s guilt. Roman v. State, 1 Tenn.Cases (Shannon) 470. The accused may offer character evidence for this purpose even though he does not testify in his own defense. Morrison v. State, 217 Tenn. 374, 397 S.W.2d 826 (1965), rehearing denied, 400 S.W.2d 237 (Tenn.1966).

In this case, however, the Appellant showed through two (2) employees of the Majik Mart the good and honest character of the Appellant prior to the event. In addition, the Appellant showed through a defense witness, without objection, that she had a good reputation in the community as to truth. Therefore, we are of the opinion that the error complained of was harmless error. T.C.A. § 27-117.

The Appellant further complains that the evidence preponderates against the verdict and that the verdict is not supported by the evidence.

Appellant does not argue these assignments but only asks the Court to review the evidence in this case.

We have reviewed the evidence and the record in this case. We do not find that the evidence preponderates against the verdict. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

The judgment of the trial court is affirmed.

O’BRIEN and DUNCAN, JJ., concur.


author: GALBREATH, Judge.

text:
    Richard DANDRIDGE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 18, 1977.
    Certiorari Denied by Supreme Court June 13, 1977.
    Edward G. Thompson, Memphis, for appellant.

      Brooks McLemore, Atty. Gen., Henry E. Hildebrand, III, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Jerry Harris, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

GALBREATH, Judge.

Richard Dandridge appeals from his conviction in the Shelby County Criminal Court for receiving stolen property over the value of $100 and contends that the evidence does not support the verdict and the sentence of three years in the penitentiary. The appellant was found at the Memphis home of his mother in possession of the 1973 Buick automobile which was stolen from its recent purchaser’s fiancee.' The appellant admitted attempting to register the car in Mississippi under the alias of Charles Upchurch. The defendant did not testify but the jury rejected his explanation of possession given police in a statement introduced as evidence to the effect that an unnamed man had loaned him the car with the request that he have it falsely registered. The assignment complaining about the sufficiency of the evidence cannot be sustained under the applicable standards for review by this Court. See McBee v. State, 213 Tenn. 15, 372 S.W.2d 173; Tackett v. State, 223 Tenn. 176, 443 S.W.2d 450 (1969).

We also reject an assignment complaining of testimony by an investigating policeman that he had known the defendant as Charles Upchurch, the name used in registering the stolen automobile in the adjoining state. We fail to see how, as contended on behalf of the defendant on motion for mistrial, that this violated the rule against proof of unrelated criminal conduct, held inadmissible by our Supreme Court in numerous decisions. See Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963).

The testimony complained of tended to link the defendant directly with the offense for which he was being tried. This made it competent, even if the jury might infer from his use of a false name that the defendant had, in the past, engaged in illegal activity. Such evidence, even if it tends to prove other criminal acts, is admissible under two of the exceptions to the rule against such evidence: (1) it was admissible to show the scheme or design to deprive the owner of his automobile, and (2) it tended to establish the identity of the person known as Charles Upchurch as being the same person known as Richard Dandridge. In shedding light on the identity of Up-church as Dandridge the evidence tended to do more than imply the guilt of the accused, it helped the jury pierce the veil of secrecy surrounding the person who had held himself out as someone other than the accused himself.

Finally, we overrule an assignment. directed to an alleged failure on the part of the trial court to have carried out an agreed pretrial order, entered on the minutes, directing that two unnamed physicians examine the defendant and report to the court as to his mental competency to stand trial.

The record is silent as to whether the examination was made and report filed with the court. No issue was raised either at trial or on motion for new trial touching on the defendant’s mental competency. We cannot hold a trial judge in error when nothing appears in the record suggesting that an erroneous judgment was made or action taken. Rule 14(4), Rules of the Supreme Court.

If the defendant is mentally incompetent, he is, even at this late date, subject to be cared for as an insane person rather than a convicted felon. Green v. State, 88 Tenn. 634, 14 S.W. 489 (1890). At this point the problem addresses itself to the Department of Corrections and the mental health custodial facilities provided by the State for inmates with mental diseases. On the face of a silent record we cannot presume other than mental competency.

Affirmed.

RUSSELL and DAUGHTREY, JJ., concur.


text:
    Timothy STERNER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 29, 1977.
    Certiorari Denied by Supreme Court June 20, 1977.
    Michael E. Clift, Shelbyville, for appellant.
    Brooks McLemore, Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, Charles S.Ramsey, Jr., Dist. Atty. Gen., Manchester, for appellee.
   OPINION

GALBREATH, Judge.

The jury had before it credible proof, which it believed, that the appellant, Timothy Sterner, was in guilty possession of two mules recently stolen from a livestock dealer in Pennsylvania which he attempted to sell to Mr. Douglas Reed, a Manchester dealer, on the 2nd day of February, 1975. Mr. Reed testified that when he evinced no interest in buying two “high priced” mules from the defendant, Sterner drove away in a closed van, presumably containing the mules, to contact Danny Reed, the witness’ son, who was attending a livestock sale in Lebanon. The younger Reed testified that Sterner approached him at the sale and asked him to sell the mules. Danny Reed, although he stated there was no discussion on the point, had the impression that the defendant would come back after the mules were sold for the anticipated price of $1,500 the mules were valued at by Sterner. The sale was thwarted by the appearance of the owner of the mules who recognized and claimed them. The defendant never contacted Reed after the mules were returned to their owner.

The above detailed facts support the jury’s verdict that the defendant feloniously concealed stolen property of a value in excess of $100 for which they imposed punishment at from three to eight years in the penitentiary. The defendant gave an explanation for his possession of the mules, which if believed, would have exonerated him from criminal complicity. However, as aforesaid, and for reasons we will discuss hereinafter, the jury did not accept his explanation. Our Supreme Court has consistently held:

“(T)he unexplained exclusive possession of stolen property shortly after commission of the robbery may warrant a finding that the possessor has guilty knowledge of the larceny or robbery. And unless this exclusive possession of stolen property after larceny or robbery is accounted for in a straightforward, truthful way, and unless the jury finds the explanation reasonable and satisfactory, the jury would be warranted in returning a verdict of guilty of receiving and concealing stolen property.” Tackett v. State, 223 Tenn. 176, 443 S.W.2d 450 (1969)

The defendant, by way of explanation for his possession, testified that he transported the mules to Tennessee as an accommodation for others. He said he was coming to the Bedford County farm of one George Livingston to pick up two horses owned by his father, and since his van was empty, he agreed to pick up mules he was told were owned by a Mr. Ray Taylor from the Maryland Farm of a Mr. Radie Evans and deliver them to Danny Reed. Taylor, a former resident of Coffee County who was serving a sentence in a federal prison for interstate transportation of stolen goods, was called as a rebuttal witness and denied any knowledge of the mules. This sharply disputed the defendant’s theory based in large measure on the testimony of Radie Evans who had testified that Taylor had left the animals at his farm and arranged for the defendant to bring them to Tennessee. If Radie Evans was truthful, then the defendant was, in all probability, innocent. Thus, the weight the jury gave his testimony was a key factor in their determination. For this reason we are forced to hold that a plain error committed in attacking the credibility of this witness forces reversal.

Evans was asked by the assistant district attorney general, for the purpose of impeachment, if he had been charged with perjury in Rockwood, Maryland some twenty-two years before in August of 1954. In overruling the prompt objection to this question, the trial judge ruled specifically that witnesses may be asked about such accusations, saying “(A)s pertains to a witness, accusations are admissible, so he [the assistant district attorney general] has a right to ask him about these particular aspects . . . This man is not a defendant and this would be material.”

Aside from the obvious remoteness of the unsupported charge of criminal conduct we can find no support for the judge’s differentiation between the methods permissible for impeachment of a defendant’s testimony vis a vis that of a material witness. Although never directly spelled out, in Tennessee the general law would seem to be as stated in Wharton’s Criminal Evidence, 13th Edition, § 477:

“It may not be shown, for the purpose of impeachment, that a witness has been arrested for or charged with the commission of a crime. Such evidence is excluded on the theory that a witness is presumed to be innocent, or that the evidence would constitute hearsay.”

The jury had some difficulty with this case. The facts were close and the conclusion rested entirely on whether or not the jury believed the defendant and his corroborating witnesses, or the Reed boy and his father and the witnesses who tended to corroborate them. The defendant theorized that the Reeds were implicated with Taylor in the theft of the mules. Branding the key witness for the defense as an accused perjurer may well have tipped the scales and brought about a conviction.

We also do not approve of other trial procedures which we feel sure will not be repeated in the event of retrial. While no reversible error was involved in a witness for the State discussing with another witness just prior to his testimony the general contents of a statement the latter witness had previously given, it would be better if such discussions were discouraged. In addition, it would be best not to emphasize the testimony of one particular witness by replaying his testimony at the request of the jury, as was done in this case, over objection on behalf of the defendant. As was noted by the Sixth Circuit Court of Appeals in Henry v. United States, 204 F.2d 817 (1953):

“After a jury has reported its inability to agree upon a verdict, it is, in our opinion, incumbent upon the Trial Judge to exercise extreme care in reopening the case for the introduction of further testimony or in permitting any evidence to be restated or reread to the jurors. Unless restraint is exercised by the Judge, it may well be that he would permit undue emphasis to be placed upon portions of the testimony if such portions were called for by the jurors.”

Reversed and remanded.

RUSSELL and DAUGHTREY, JJ., concur.


author: POPE, Justice.

text:
    Leonard T. LUCAS, Petitioner, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY and/or New York Underwriters Insurance Company, Respondents.
    No. B-6635.
    Supreme Court of Texas.
    June 8, 1977.
    Rehearing Denied July 6, 1977.
    Granberry & Hines, F. P. Granberry, Crockett, for petitioner.
    William Drew Perkins, Lufkin, for respondents.
   POPE, Justice.

The sole question presented in this worker’s compensation case is whether the court of civil appeals erred in its holding that there was no evidence of a causal connection between the injury that Leonard T. Lucas received in the course of his employment and the disability. Upon the basis of a favorable jury verdict, Lucas obtained a judgment for total and permanent incapacity, but the court of civil appeals reversed the judgment and rendered judgment that he take nothing. 547 S.W.2d 386. We reverse the judgment of the court of civil appeals and remand the cause to that court.

On August 24, 1974, Lucas, while searching for some items which his employer needed, caught the toe of his shoe under an angle iron, lost his balance and cut his left ankle. Five days later, Dr. Nathan Caldwell examined the ankle and found it infected, with red swollen areas around the lower left leg. About two weeks later Lucas developed thrombophlebitis in both legs. He had not previously suffered from phlebitis, but he had other ailments. He was diabetic, had a chronic ulcer on his toe, and varicose veins. He had also been recently treated for an inflammation of the intestines and was doing light work on advice of his doctor.

The defendant, insurer, argues that there is no evidence that in reasonable medical probability the cut was the producing cause of the incapacity. Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703 (Tex.1970); Insurance Co. of North America v. Myers, 411 S.W.2d 710 (Tex.1966).

There is direct evidence of the vital fact in the record before us, and for that reason we need not concern ourselves with the scintilla rule nor with inferences. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Calvert, No Evidence and Insufficient Evidence, 38 Tex.L.Rev. 361, 362-365 (1960). Dr. Caldwell testified with respect to the incapacity:

Q What, in your opinion, caused that situation to occur?
A I think that the thrombophlebitis was the cause of the pain in his legs. I think the thrombophlebitis was probably at least started at that time by the superficial injury that he received which became infected which is not an uncommon problem in diabetics.
* * * * * *
Q But for the cut that he had received back in August of ’75, would he have developed this severe thrombophlebi-tis?
A In all likelihood he would not have. It’s possible, who knows?
⅝ ‡ ⅜: ‡ ⅜ ⅜
Q Now, and you said you cannot tell whether he would or would not have had the thrombophlebitis with or without this superficial injury to his ankle.
A No, sir, I can’t really say that he would or wouldn’t have. I think that that injury did predispose to this episode.
* * * $ * *
A All I could tell, there was an ankle that had been scratched and was infected which was immediately adjacent to the veins that became involved. That’s the reason I thought there was a relationship.
Q There does not necessarily have to be a relationship, does there?
A Not necessarily but probably.

Dr. Caldwell concluded his direct examination by stating that his records reflect that on August 29,1974, he told Mr. Lucas not to go back to work. He testified that standing or walking on legs diseased by thrombo-phlebitis “could theoretically be the factor that kicked a blood clot loose and let it go its devastating route.” Dr. Caldwell also stated that “in all reasonable medical probability Lucas’ condition is going to exist in its present state or worse for the balance of his life.”

In deciding a “no evidence” point we must view the evidence in its most favorable light in support of the finding, and we must consider only the evidence and inferences which support the finding. Fisher Construction Company v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959); Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814 (1959); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914).

The insurer argues and the court of civil appeals held that Dr. Caldwell’s use of qualifying phrases reduced his testimony to no evidence at all. “I think,” “in all likelihood,” “It’s possible,” are phrases found in the quoted testimony. But, the substance of the medical testimony, taken in context, satisfies the law’s demand for reasonable medical probability. See 1 McCormick & Ray, Texas Law of Evidence § 531 (2d ed. 1956).

We must reverse the judgment of the court of civil appeals. The defendant insurer did have points before that court attacking the sufficiency of the evidence to support the verdict as well as points that the findings were against the great weight and preponderance of the evidence. We accordingly remand the cause to that court to pass upon those matters over which this court has no jurisdiction. Hubacek v. Ennis State Bank, 159 Tex. 576, 325 S.W.2d 124 (1959).

The judgment of the court of civil appeals is reversed and the cause is remanded to that court.


author: DOUGLAS, Judge. DALLY, Commissioner. ROBERTS, Judge,

text:
    David Richard JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 50911.
    Court of Criminal Appeals of Texas.
    March 17, 1976.
    On Rehearing June 22, 1977.
    Second Rehearing Denied July 13, 1977.

      Charles D. Butts, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Charles T. Cona-way, Lucien B. Campbell and Susan Reed, Asst. Dist. Attys., San Antonio, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction of voluntary manslaughter. The jury assessed punishment at fifteen years.

Connie Lee Jones, the two-year-old stepdaughter of appellant, was killed. The main witness for the State was Mary Frances Kusenberger who was the mother of the child and wife of appellant at the time of the homicide. Hereafter she will be referred to as Mary Frances. The appellant contends that the court unduly limited cross-examination of Mary Frances and refused to admit testimony to impeach her credibility-

Mary Frances testified that on April 30, 1973, she married appellant. Her two daughters, Lola Jean Jones, age four, and Connie Lee Jones, age two, lived with them. Appellant supported the family from an insurance settlement for a work-related injury.

On January 5, 1974, the family was staying at the home of appellant's brother. Late that day the appellant borrowed his father’s gun and took his family deer hunting. After shooting a deer, they returned to his brother’s to dress the meat. His brother’s family was not home at this time. The appellant became angry with Connie Lee for wetting her pants in the car. Because of this he made her stand behind a closet door. He also became angry with Lola Jean for playing with some toys she had been told not to touch. He made her stand behind another door.

While the appellant was dressing the deer in the bathroom, Connie, whom the appellant had told to hold her hands behind her back, had let her hands fall to her side. Seeing this he slammed the door against Connie. The child wet her pants again and this infuriated appellant. He then grabbed Connie and took her into the living room. He sat on the couch and threw the child on the floor. He then took off his shoe and threw it at her and hit her in the head. He then removed his belt and hit Connie between the legs, on her stomach and about the arms. Mary Frances testified that she tried to run out and get help but that the appellant prevented her from leaving the house or protecting her child. Following this beating Connie became unconscious. From then (January 5) until her death on January 9, 1974, Connie Lee could not use her left arm or leg, could no longer talk and could not hold down food or liquids. He refused to take her to a hospital because he did not want to have to answer any questions about her condition.

From the fifth to the ninth of January, the family drove from bar to bar and stayed in cheap motels. Mary Frances testified that she tried to get Connie to eat or drink but was unsuccessful. She said that she was unable to go for help because the appellant was with her continually. She also testified that she was afraid of the appellant and that she had many bruises on her body from his mistreatment of her.

Finally on the night of January 9th, thinking Connie was dead or near death, the appellant consented to take her to the hospital. At that time the appellant told his brother that Connie had fallen out of a truck and was injured. The appellant gave the same explanation to the attending doctor who had announced Connie Lee dead on arrival at the hospital. He also gave this explanation to the investigating officer who spoke with him at the hospital.

According to the pathologist who performed the autopsy on the body of Connie Lee Jones, the child died as a result of injuries to the head caused by multiple blows to the face and head. The doctor testified that the bruises on the deceased’s body ranged in age from one to three weeks. On cross-examination the doctor stated that it was possible that the child could have died from a severe blow to the head inflicted as early as the latter part of November of 1973.

Mary Frances stated that the appellant had not mistreated the children until around December 1, 1973 when his insurance money ran short. She also testified that around December 17th the appellant kicked Connie in the chin with his boot for leaving a cold shower where he had put her for punishment. This kick caused a deep gash in Connie’s chin. This gash was still prominent at the time of her death.

Most of appellant’s grounds of error concern the limitation placed on his cross-examination and attempted impeachment of Mary Frances’ testimony. At first the trial court limited the cross-examination about her treatment of the children to the time period from December 1,1973 to January 9, 1974. Mary Frances had testified that this period covered the time that the appellant had abused the children. Later, after the pathologist testified that the injuries leading to Connie’s death could have occurred during the latter part of November, the trial court permitted the appellant to cross-examine her about incidents from the middle of November, 1973 to January 9, 1974.

In ground of error number one, appellant contends that this limitation placed on his cross-examination of Mary Frances was error. He testified that the child had died from the innumerable beatings inflicted upon her by Mary Frances. The appellant related that Mary Frances had not wanted to take the child to the hospital because she believed that Connie only had a virus. She told the appellant that she was nursing Connie with aspirin and was feeding her baby food. During the trial, Mary Frances denied ever beating her children. Counsel for appellant stated that he wanted to show her motive, bias and animus for testifying against the appellant. Through cross-examination and through the testimony of other witnesses, he also sought to establish his defensive theory that Mary Frances and not he had caused Connie Lee’s death.

Wide latitude is given in showing the motive, bias and prejudice of a particular witness. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and Jackson v. State, 482 S.W.2d 864 (Tex.Cr.App.1972). In this case, unlike Davis v. Alaska, supra, and Jackson v. State, supra, the appellant was able to introduce much testimony tending to show possible prejudice and motive on Mary Frances’ part.

On cross-examination, the appellant asked Mary Frances whether the gash on Connie’s chin had not come from being pushed into the car’s ashtray by her sister or from being struck by Mary Frances with a hair spray can instead of a kick from the appellant’s boot. This she denied as well as practically all of his other accusatory questions. The appellant inquired of her if bruises on the child’s body came from a barroom brawl with another woman and not from the appellant. He asked Mary Frances if she hadn’t placed Connie in their car dressed in only a diaper for long periods of time after her injury. Mary Frances was asked on cross-examination if two women had tried to stop her from beating her children outside of a tavern. She was questioned if she was ever in a restroom with another woman and asked the woman for money to buy whiskey but said nothing about her seriously ill child. Mary Frances was questioned why, as the mother of a badly injured child, she did not make more of an effort to tell someone that her husband was letting her child die. She replied that she was afraid of the appellant. The record shows that he was a large man. During cross-examination she was asked if a waitress had ever admonished her against beating her children and whether Lola Jean had ever beaten Connie with a flashlight. In an effort to find inconsistencies in her testimony, the appellant elicited from her once more why they finally decided to take Connie to the hospital and under what circumstances the appellant had kicked Connie in the chin with his boot. Mary Frances was asked if she did not demand, on January 6, 1974, that the appellant spank the unresponsive Connie and when he refused if she did not beat the child about the head with her fist. As shown by the above examples, the appellant was able to cross-examine Mary Frances extensively about her treatment of her child within the allotted time period. Her answers to these questions were not favorable to the appellant. We cannot say that the appellant was unduly hampered in his cross-examination by the time limitation set by the trial court. See grounds of error four, seven, eight, nine and ten, infra.

In his second ground of error appellant argues that he should have been allowed to cross-examine Mary Frances about an incident at the Aristocrat Apartments in late November, 1973. In the bill of exception developed on his point, Mary Frances was asked if she had not hit Connie Lee with a hair brush causing a bad bruise on the right side of her face. Mary Frances was also asked if during her stay at the Aristocrat Apartments the manager did not tell her that she would have to stop mistreating her children.

After the pathologist testified that the fatal wound could have occurred as early as November, the trial court enlarged the time period to include the incidents at the Aristocrat Apartments. When this evidence became admissible, the appellant did not offer it again by recalling Mary Frances. By not recalling the witness, the appellant waived any objection he might have had to the exclusion of her testimony. Johnson v. State, 527 S.W.2d 525 (Tex.Cr.App.1975).

In ground of error number four, the appellant complains of being limited in his proof, through the testimony of other witnesses, that Mary Frances mistreated her children. Particularly in grounds of error seven, eight, nine and ten he complains that he was not allowed to introduce testimony that Mary Frances physically abused her children in June, 1973, in September, 1973, in October of 1973 and in 1972 when Connie was a baby.

The following testimony was excluded by the trial court because it dealt with instances of child abuse prior to the middle of November 1973. Patricia Malone testified outside the presence of the jury that one afternoon in late September of 1973 the appellant, Mary Frances and the two children were visiting with Mrs. Malone in her backyard. When Mary Frances said it was time to leave, Connie began to cry. Mary Frances hit Connie across the face with her hand and knocked her down. When Mrs. Malone objected to her treatment of the children, Mary Frances grabbed Lola Jean by the arm, picked Connie up by her hair and dragged them to their car. Jody Hartsfield testified outside the presence of the jury that around October 12,1973, while living with Mary Frances, she saw Mary Frances kick Lola Jean for asking for a drink of water. Kathy Tolison testified in a bill of exception that, while living with Mary Frances in 1972, she saw her knock Connie up against the wall with her fist after she had asked for a drink of water.

Although restricted to a time period, the appellant called several witnesses to show that Mary Frances had mistreated her children. Patricia Malone, the appellant’s sister, testified before the jury that, even after his insurance money ran out, the appellant did not complain about the added responsibility of the two children. Patricia Malone also testified that Mary Frances’ reputation for veracity was bad. Shirley Davis testified that while working at a bar towards the end of November, 1973, she noticed that one of Mary Frances’ children was crying in their car. Shirley Davis testified that she watched Mary Frances go out to the car and could see her slap the child and heard her say “shut up or she would knock the hell out of her.” The witness also testified that Mary Frances’ reputation for veracity was bad. Debra Hicks testified before the jury that she had taken care of the children from around the middle of November, 1973 until Christmas, 1973. She testified that she had noticed bruises on the children during this interval. Debra Hicks stated that Mary Frances told her that the police had come to their apartment in December to check out a beaten child report and that she told the police that the child had fallen down the stairs. Mary Frances told Debra Hicks that she had actually whipped the child. The witness also testified that during the latter part of November and December she had seen Mary Frances hit her children. Charlene Mahoula testified before the jury that during the latter part of November when working at a bar she heard screams from the parking lot and discovered Mary's children in their car. She found that the oldest child had sprayed the younger one in the eye with hair spray. She told Mary Frances, but Mary Frances did nothing about it until another waitress brought it to her attention. Mary Frances then went out to the car and started to hit the older girl in the face with her fist. Aundie Wilkins also testified about this hair spray incident. She related that the appellant came out of the bar and made Mary Frances stop hitting the child. Jody Harts-field testified that during December, while Mary Frances was living at the Aristocrat Apartments, she saw Mary Frances hit Connie with the back part of her fist and knock her against a wall. Nell Jacobs testified that she was with Mary Frances in a bar on the night of Connie’s death and that, while in the restroom together, Mary Frances asked her for a loan of money because she had lost her purse. Nell Jacobs said that Mary Frances did not mention her children nor did she seem upset.

We cannot say that under the circumstances of this case the trial court was unreasonable or arbitrary in restricting testimony to the time period that the pathologist testified that the child could have received the fatal injury or injuries. Grounds of error four, seven, eight, nine and ten are overruled.

In grounds of error five, eleven and fourteen, the appellant complains of the exclusion of testimony concerning Mary Frances’ behavior after the death of Connie Lee. The appellant wanted to introduce the following testimony: Mary Frances’ statements, developed on a bill of exception, concerning her presence at the Silver Saddle Bar on the night following the death of her child; the testimony in a bill of exception of welfare worker Nancy Ramsey that, when she told Mary Frances on January 10, 1974 that the state was going to take custody of Lola Jean, Mary Frances threw Lola Jean up against the wall and shouted, “I dare you to accuse me. Just take my f_ing kid”; Kathy Tolison’s testimony that Mary Frances threatened her with a knife after she had testified against her at the welfare hearing held after Connie’s death. The appellant argues that he should have been allowed to introduce this testimony in order to show Mary Frances’ lack of feeling after homicide and to impeach her demeanor at the trial as a loving mother.

Although such subsequent conduct as flight from the scene of a crime may be used to show guilt, Arivette v. State, 513 S.W.2d 857 (Tex.Cr.App.1974), this subsequent conduct on the part of Mary Frances does not indicate consciousness of guilt on her part. Mary Frances testified that she was present in the Silver Saddle Bar on the night of January 10th to discuss funeral arrangements with Bill Jones, Connie’s father. She related that she did not have a quiet place to go and that she and members of her family were given the use of a room so that they could make plans in private. If this could have indicated a feeling of guilt on her part about Connie’s death, it would be remote. If the exclusion of testimony is error, it is not reversible.

The appellant also contends that he wanted to introduce the testimony to impeach Mary Frances’ demeanor as a loving mother. He was able to offer substantial testimony dealing with Mary Frances’ mistreatment of her children. Further testimony would only be cumulative.

In support of his contention that the evidence should not have been limited by the trial court, the appellant urges that V.T.C.A., Penal Code, Section 19.06, should be extended to include all relevant facts and circumstances surrounding the relationship between a witness and the deceased. Section 19.06 is virtually the same as its predecessor, Article 1257a of the 1925 Penal Code. Under the 1925 Penal Code, “accused” was defined as “. . . any person who, in a legal manner, is held to answer for an offense, at any stage of the proceeding . . . .” We hold that Section 19.06, supra, is not applicable to a witness who is not accused.

In his sixth ground of error, appellant argues that he should have been allowed to prove Mary Frances’ general reputation for abusing her children. Generally, for impeachment purposes, reputation evidence is restricted to that for truth and veracity. Evidence of a particular bad character trait such as child abuse is properly excluded. McCormick and Ray, Texas Law of Evidence, Section 647 (2nd ed.); Hartford Accident and Indemnity Company v. Williams, 516 S.W.2d 425 (Tex.Civ.App.1974), ref. n.r.e.; Garza v. Garza, 109 S.W.2d 1079 (Tex.Civ.App.1937), error dismissed; Minor v. State, 166 Tex.Cr.R. 69, 311 S.W.2d 241 (1958); Mares v. State, 71 Tex.Cr.R. 303, 158 S.W. 1130 (1913); Branch’s Ann.P.C.2d, Section 206, page 232; Cochran v. State, 130 Tex.Cr.R. 146, 92 S.W.2d 1041 (1936).

In this case, appellant was permitted to introduce evidence of particular acts of her hitting and abusing her children. The trial court’s refusal to allow testimony about her reputation for abusing her children would not, in any event, lead to a reversal in this instance. Appellant’s sixth ground of error is overruled.

In his twelfth ground of error, appellant contends that the trial court erred in not granting a new trial upon the post-trial disclosure of several affidavits in the possession of welfare worker Nancy Ramsey. These affidavits related various instances of child abuse by Mary Frances. They were taken in conjunction with a hearing called to determine the custody of Mary Frances’ four-year-old daughter. These papers were in existence at the time of the trial in question, and the appellant had asked to obtain any facts that might be favorable to him in conjunction with this case under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He contends that the prosecution knew of the existence' of these affidavits but failed to show it to him.

The record of the hearing on the motion for new trial indicates that the appellant had, at the time of the trial, issued a subpoena duces tecum for the records held by Mrs. Ramsey. Mrs. Ramsey testified at the hearing that she thought her entire file to be available to the appellant by virtue of the subpoena. She testified that the affidavits would have been available to the appellant had he taken advantage of his subpoena. We cannot conclude that the prosecutor violated his duty to disclose favorable evidence to the appellant when the evidence was already available to him. Brown v. State, 513 S.W.2d 35 (Tex.Cr.App.1974).

In his third ground of error, the appellant complains of the prosecutor reading, by means of questions and answers, part of two written statements by Mary Frances detailing the facts surrounding Connie Lee’s death. On cross-examination, the appellant questioned Mary Frances about inconsistencies in her prior statements and her trial testimony concerning the time the appellant put Connie Lee into a cold shower and the time that the appellant hit Connie Lee with a shoe causing her to become unconscious. The State on redirect tried to read the entire statement. This was objected to by the appellant as bolstering the witness. The objection was sustained and the trial court instructed the jury to disregard the questions and answers concerning the parts of the statement that had not been brought up on cross-examination. The State then limited its questioning of Mary Frances to the segments of the statements asked about on cross-examination. This was done without objection by the appellant. No error is shown. Twomey v. State, 520 S.W.2d 784 (Tex.Cr.App.1975). See Mabou v. State, 429 S.W.2d 891 (Tex.Cr.App.1968).

In ground of error fifteen, appellant urges that the trial court erred in overruling the appellant’s motion for mistrial after the prosecutor asked the appellant the following about his deceased wife:

“Q. David, have you ever met any other woman that have this strange power over you that Mary has?
“A. Just my late wife, I guess.
“Q. The one who shot herself?
“A. Yes, Sir.
“Q. Uh-huh. She had that power over you, too. She thought so much of you that you drove her to suicide, isn’t that a fact?”

The trial court sustained appellant’s late objection to the last question and instructed the jury to disregard it. Appellant had been questioned about Mary Frances having some sort of spell upon him. When asked if any other woman had such a spell upon him, he answered that his former wife had. In light of the preceding questions about his former wife, which were not objected to by the appellant, the prosecutor’s remarks were not so irrelevant as to be calculated solely to inflame the minds of the jurors. The trial court’s instruction to disregard was sufficient to cure the preju-dical effect of the question.

The appellant contends in his sixteenth and final ground of error that the trial court should have submitted his requested charge on accomplice testimony. He argues that the evidence raised the issue that Mary Frances was an accomplice to the crime.

The appellant testified that Mary Frances caused Connie’s death. He stated that it was Mary Frances who refused to take Connie to the hospital and that she fabricated the story of the child falling out of a truck. The doctor attending Connie at the hospital testified that the appellant told the story of the child falling from the automobile and that Mary Frances said little or nothing while at the hospital. The fact that other witnesses testified that Mary Frances had, on occasion, been away from the appellant between the 5th and 9th of January but said nothing about the injured child does not raise an inference that the couple was working together to further Connie’s death.

An accomplice is someone who has worked with another before, during or after the commission of a crime. Singletary v. State, 509 S.W.2d 572 (Tex.Cr.App.1974). The fact that a person does not inform on a person he knows to have committed a crime does not make that person an accomplice to the crime. Prine v. State, 509 S.W.2d 617 (Tex.Cr.App.1974). The evidence does not show that the couple worked together in the commission of this offense. She denied involvement in the homicide. Appellant's testimony does not show that they acted together in the commission of the homicide. No charge on accomplice testimony was necessary; the trial court did not err in the refusing the requested charge. See Hunt v. State, 492 S.W.2d 540 (Tex.Cr.App.1973); Moxie v. State, 54 Tex.Cr.R. 529, 114 S.W. 375 (1908).

Finding no reversible error, the judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DALLY, Commissioner.

The appellant’s motion for leave to file motion for rehearing was granted. After further consideration, we have concluded that the appeal was properly decided on original submission and the motion for rehearing should be overruled. However, on original submission the appellant’s ground of error number thirteen was not discussed; we will do so now.

In rebuttal after the defense had rested, the State called as a witness Bill Lee Jones, the former husband of the appellant’s wife Mary Frances. Jones was the father of the deceased child. He testified that he was married to Mary Frances the early part of 1971 and that they were divorced in 1972. He also testified that while they were married Mary Frances had cared for the children. Jones was then asked whether Mary Frances had ever abused or harmed the children. He answered, “Never.” Defense counsel then objected on the grounds that this elicited testimony concerning a time which predated those to which defense counsel had been restricted, also that to permit such testimony would be inconsistent with the court’s prior ruling. The court sustained the objection and instructed the jury not to consider the question or the answer. A motion for mistrial was overruled. The trial court’s prompt action in sustaining the objection and in instructing the jury to disregard the question and the answer adequately protected the appellant’s rights; reversible error is not shown. See Stokes v. State, 506 S.W.2d 860 (Tex.Cr.App.1974); Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App.1972); Allen v. State, 513 S.W.2d 556 (Tex.Cr.App.1974); Walker v. State, 513 S.W.2d 39 (Tex.Cr.App.1974); Mistrot v. State, 471 S.W.2d 831 (Tex.Cr.App.1971).

The appellant’s motion for rehearing is overruled.

Opinion approved by the Court.

ROBERTS, Judge,

dissenting.

The majority overrules appellant’s motion for rehearing. I would grant the motion and reverse.

On original submission appellant’s voluntary manslaughter conviction was affirmed. The principal issue in the case is the extent of appellant’s right to show the bias and prejudice of the State’s main witness.

The evidence was summarized in detail in the court’s opinion on original submission. Briefly, however, the State’s evidence, which came principally from Mary Frances Kusenberger, was as follows: Mary Frances was the mother of two girls, Lola Jean and Connie, when she met and married the appellant. According to Mary Frances, the appellant began beating the children in early December, 1973, when appellant’s money ran out. At that time Lola Jean was four years old and Connie was two.

According to Mary Frances, this mistreatment reached its peak on January 5, 1974, at appellant’s brother’s house. There, in order to punish Connie, appellant slammed a door against the child, threw her to the floor, threw a shoe at her and hit her on the head with it, and whipped her severely with his belt between her legs and on her stomach and arms.

Mary Frances’s testimony was that appellant then refused to allow her to take Connie to a hospital. She also testified that during the next few days she was unable to get away from appellant long enough to get help for Connie. Mary Frances also stated that she was afraid of appellant.

On January 9, 1974, Connie stopped breathing. Appellant and Mary Frances took her to a hospital, where doctors determined that she was dead.

Appellant and Mary Frances first told a physician at the hospital that Connie’s injuries had been caused by a fall from a moving truck several days before. Subsequently, Mary Frances asked to be taken to a separate room, where she told a nurse that Connie’s death had in fact been caused by appellant’s having beaten the child.

Mary Frances testified that she had never beaten either of her children.

Appellant testified that it was Mary Frances who caused Connie’s injuries. He testified that she frequently hit the two girls with a hair brush on various parts of their bodies. According to appellant, Mary Frances physically abused the children many times during December and January; on January 1, 1974, she attempted to throw Connie from a moving car, but was prevented from doing so by appellant.

According to appellant, the fatal wounds were inflicted on Connie by Mary Frances on January 6, 1974. Appellant woke up in the night and discovered that Mary Frances was angrily beating the children with a hair brush. In order to placate Mary Frances, whose anger had increased when Connie wet her pants, the appellant took off his belt and lightly spanked Connie “three or four little spats on the rear.”

Mary Frances than grabbed Connie and “jerked” the child away from appellant. She then began beating Connie “back and forth with her hand.” According to appellant, he grabbed at Mary Frances in order to help Connie, but Mary Frances dropped Connie in the process.

Appellant testified that he was not able to see the bruises on Connie’s body after this beating because Mary Frances kept the child completely covered with clothes. He stated that Mary Frances minimized Connie’s subsequent unconsciousness by saying that it was caused by a virus. He also testified that when he suggested medical help for Connie, Mary Frances reminded him that Connie was her child, not his.

Appellant denied all of the abusive acts attributed to him by Mary Frances. He presented the testimony of several witnesses who testified that they had seen Mary Frances abuse her children during December and early January.

Appellant admitted that he did not tell the truth at the hospital when he was asked about the cause of Connie’s death. He claimed that he lied to protect Mary Frances because she had asked him to do so and because he loved her very much.

Quite clearly, appellant’s defense was that Mary Frances had inflicted the fatal injuries without his assistance; appellant attempted to show that Mary Frances was the guilty party by his own testimony and that of other witnesses.

However, appellant also attempted to show — by both cross-examination and presentation of testimony — that Mary Frances was a biased and prejudiced witness because her own beating of Connie caused her to be concerned that she might be prosecuted for the homicide of Connie. This attempt to show Mary Frances’s bias and prejudice and motive for testifying was an altogether different issue from the question of whether it was appellant or Mary Frances who caused Connie’s death. See generally, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Evans v. State, 519 S.W.2d 868, 873 (Tex.Cr.App.1975), and cases there cited.

Thus, there were two separate but related issues which appellant sought to put before the jury: Mary Frances’s criminal culpability, on the one hand, and her bias and prejudice as a witness, on the other. That these two issues were not distinguished from one another by the trial court is obvious from the court’s rulings. Thus, when appellant first sought to show that Mary Frances had beaten Lola Jean and Connie, the court limited appellant’s inquiry to acts occurring on or after December 1, 1973. This was the date, according to Mary Frances, when appellant began beating the children. Later, the court heard expert testimony that some of the bruises on Connie’s body could have been inflicted in late November, 1973; at this point the court amended its ruling and allowed appellant to put on evidence of Mary Frances’s conduct as far back as the middle or latter part of November.

However, the court refused to allow appellant to show that Mary Frances had beaten Connie and Lola Jean on several occasions prior to the middle of November. Appellant objected to this refusal on the grounds that he was being deprived of his right to show the jury that Mary Frances was biased and prejudiced and therefore not a credible witness.

Appellant developed his bill of exception on this issue outside the presence of the jury: From Patsy Malone he elicited testimony that in September, 1973, Mary Frances had “backhanded [Connie] across the face and knocked her down,” apparently because Connie was crying. Appellant then called his sister, Linda Jackson, who testified that in June, 1973, Mary Frances grabbed Connie’s hair and jerked Connie by the hair for no apparent reason. Next, Jody Hartsfield testified that on approximately October 12, 1973, she saw Mary Frances kick Connie because Connie asked for a drink of water. Finally, Kathy Toli-son testified on the bill of exception that she had lived with Mary Frances for a period of time and that some two and a half years prior to trial (therefore during April, 1972) she had seen Mary Frances knock Connie up against a wall with her fist after Connie asked for a drink of water. Tolison testified that Connie was a “tiny baby" at the time.

Through this particular testimony the appellant was not attempting to show that Mary Frances had committed the offense, and therefore that appellant was not guilty; he was instead trying to show that Mary Frances had repeatedly beaten and abused Connie over a long period of time. He had good reason to believe that after hearing this evidence the jury might very well infer that Mary Frances felt vulnerable to potential prosecution because of her long-term pattern of child abuse. Acceptance of this inference would lead the jury naturally to the conclusion that Mary Frances felt undue pressure to testify as favorably as possible for the State. See Davis v. Alaska, supra, 415 U.S. at 317-318, 94 S.Ct. at 1111, 39 L.Ed.2d at 354; Evans v. State, supra at 873.

I believe that appellant should have been allowed to present evidence of Mary Frances’s repeated and long-term abuse of Connie. It was important for the jury to know that, because of this long-term series of brutal actions, Mary Frances was afraid of being prosecuted herself.

On original submission the majority relied on two factors to uphold the trial court’s mid-November time limitation. First, the majority pointed out that the court allowed appellant to cross-examine Mary Frances fully about her treatment of the children during the limited time period. Second, the majority observed that appellant was permitted, to show that Mary Frances had mistreated her children during this limited time period.

There is no question that appellant cross-examined Mary Frances fully about her alleged mistreatment of Connie and Lola Jean during the latter part of 1973 and the first week of 1974. And it is equally clear that the appellant was allowed to put before the jury evidence that Mary Frances had beaten her children during this same period.

However, under this Court’s holdings — as well as the holding in Davis, supra — this is simply not enough. Both this Court and the United States Supreme Court have made it clear that the right of an accused to cross-examine an adverse witness for bias is a “vital” constitutional right; therefore, the accused must be allowed great latitude in showing any fact which would tend to establish the bias, prejudice, or motive for the witness’s testimony. Davis, supra at 320, 94 S.Ct. at 1112, 39 L.Ed.2d at 356; Evans, supra at 871.

I believe that the jury in this case was entitled to know all the facts which would tend to show that Mary Frances’s testimony was “affected by fear or favor.” Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 220, 75 L.Ed. 624, 628-629 (1931) (relied on by the Court in Davis v. Alaska, supra). By limiting appellant to the stated time period, the trial court prevented the jury from knowing the full coercive and intimidating effect on Mary Frances of her past conduct. Instead, the jury should have been allowed to infer — if the jurors chose to do so — that because of a long history of child abuse Mary Frances was likely to testify more favorably for the State.

In this regard, the Evans case is instructive. In Evans Wayne Knock gave the only testimony of several facts which were extremely damaging to the co-defendants, Evans and Meyer.

The co-defendants then attempted to show the jury, and did show by bill of exception, that Knock had been indicted for sodomy in 1972; that Knock’s case was set in the same court as that in which the co-defendants were being tried; that each time the co-defendants’ case had been set for trial Knock’s sodomy trial had been set to be tried afterward; and that each time the co-defendants’ case was reset Knock’s case was also reset.

Relying on Art. 38.29, V.A.C.C.P., the trial court refused to allow the jury to receive this evidence. This Court reversed, holding that the defendants were entitled to show “Knock’s vulnerable status as an indictee.” Evans v. State, supra at 873.

The holding in Evans stands for the proposition that the co-defendants in that case were not merely entitled to put on evidence that Knock had been indicted; they also had the right to show that his case had repeatedly been reset so that his sodomy indictment would be hanging over him when he testified against Evans and Meyer.

It follows that where the accused desires to show the bias and motive of a witness he is entitled to show the basis of that bias, prejudice, and motive in its entirety. Therefore, just as Evans and Meyer were entitled to show all of the resettings of Knock’s sodomy case, and not just the most recent resetting, so was this appellant entitled to inquire into all of Mary Frances’s long-term acts of abuse, not just the most recent acts.

In Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App.1977), this Court held that the defendant was entitled to present to the jury all previous harassing acts committed against him by local police officers, since these acts tended to show the animus, motive, and ill-will of the police officer who arrested appellant and testified against him at trial. In reversing Coleman’s conviction we quoted with approval from Green v. State, 54 Tex.Cr.R. 3, 7, 111 S.W. 933, 935 (1908), as follows:

. . . [A]ny fact and every fact going or tending to show mental bias, interest, prejudice or any other motive, or mental state, or status [of the witness], which, fairly considered and construed, might even remotely tend to affect his credibility, should [be] admitted.’ ” (Emphasis and bracketed portions added in Coleman, at 834.)

We also held in Coleman that:

“The motives which operate on the mind of the witness while he testifies should never be regarded as immaterial, because they tend to affect his credibility.” Id., at 834.

I therefore conclude that the trial judge impermissibly limited the proof of the witness’s bias, prejudice, and motive for testifying. I would grant the appellant’s motion for rehearing and reverse the judgment of the trial court.

      . Here, much more than in Davis and Evans, the testimony of the State’s witness was crucial to the State’s case. See Davis, supra, 415 U.S. at 317, 94 S.Ct. at 1111, 39 L.Ed.2d at 354; Evans, supra at 873. In truth, it was the State’s case.

      . The evidence also showed that Knock fit the description of one of the suspects, as described by another of the State’s witnesses.

      . The murder which Evans and Meyer were alleged to have committed occurred on January 7, 1972.

      . Of course, this is necessarily subject to the trial court’s broad discretion to prevent repeti-five and unduly harassing cross-examination. Davis, supra, 415 U.S. at 316, 94 S.Ct. at 1110, 39 L.Ed.2d at 353. However, the excluded evidence and cross-examination in the present case were neither repetitive nor harassing; rather, they went to the very heart of the issue of Mary Frances’s bias and her motive for testifying.


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

text:
    Early GARNER, Appellant, v. The STATE of Texas, Appellee.
    No. 51122.
    Court of Criminal Appeals of Texas.
    April 20, 1977.
    Rehearing Denied June 14, 1977.
    Second Rehearing Denied July 13, 1977.
    John M. Delaney, D. Brooks Cofer, Bryan, for appellant.
    W. T. McDonald, Jr., Dist. Atty., and J. Bradley Smith, Asst. Dist. Atty., Bryan, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

The offense is forgery; the punishment, enhanced under V.T.C.A., Penal Code, Sec. 12.42(d), life.

Appellant’s third ground of error contends the State failed to prove the second prior conviction, alleged for enhancement in the second paragraph of the indictment, was for an offense which occurred subsequent to the first previous conviction, as set forth in the third paragraph of the indictment, having become final. The indictment alleges appellant was convicted of burglary in Robertson County on April 13, 1964, and of burglary in the second degree in Oklahoma County, Oklahoma, on May 27, 1968.

Appellant pleaded not true to the enhancement paragraphs of the indictment and testified at the punishment phase of the trial. Although appellant admitted he had been convicted of burglary in Robertson County in 1964, and of burglary in Oklahoma in 1968, he testified he did not remember the date of commission of either offense.

State’s exhibit two, a prison packet from the Oklahoma State Penitentiary, contains a judgment and sentence of conviction for burglary in the second degree on May 27, 1968, but this instrument does not recite the date of commission of the burglary. Cf. Morgan v. State, Tex.Cr.App., 507 S.W.2d 538. The record does not contain testimony of a peace officer with personal knowledge of the date of the commission of this offense. Cf. McCarter v. State, Tex.Cr.App., 527 S.W.2d 296.

The trial court admitted, over appellant’s timely objection, State’s exhibit five, a copy of an information from Oklahoma County alleging burglary in the second degree. The instrument is certified as a true, correct and complete copy by the court clerk; however, there is no certification that the clerk has legal custody of the writing. See Morgan v. State, Tex.Cr.App., 532 S.W.2d 85. The information was not authenticated in compliance with Art. 3731a, Sec. 4, V.A. T.S., and thus cannot be considered. Since the record does not otherwise show the date the information was filed, the period of limitations for burglary in Oklahoma is not relevant. See Alvarez v. State, Tex.Cr.App., 536 S.W.2d 357; Juarez v. State, Tex.Cr.App., 496 S.W.2d 638; Norris v. State, Tex.Cr.App., 488 S.W.2d 84; Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383.

V.T.C.A., Penal Code, Sec. 12.42(d) requires that the State prove the second previous felony conviction is for an offense that occurred subsequent to the finality of the first prior conviction. See Wiggins v. State, Tex.Cr.App., 539 S.W.2d 142. The State failed to meet this burden of proof. Although the error relates to punishment only, appellant elected to have the jury assess punishment. See Bray v. State, Tex. Cr.App., 531 S.W.2d 633.

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

DOUGLAS, Judge,

dissenting.

The indictment alleges that on or about February 5, 1974, appellant did with intent to defraud and harm another, pass to Mary Fread a writing that had been made so that it purported to be the act of another, who did not authorize the act.

Appellant contends that the State failed to prove that the Oklahoma conviction alleged for enhancement was for an offense which occurred subsequent to the conviction in Robertson County, Texas, alleged as the first of two prior felonies for enhancement.

Appellant admitted that he had been convicted for both offenses. The State introduced a properly certified copy of an indictment showing that the appellant had been indicted for the offense of burglary in Robertson County and the judgment and sentence, properly certified and exemplified, bearing the same cause number, were also introduced. Attached to the judgment and sentence were photographs and fingerprints. In this case the sentence had been pronounced against the appellant on April 13, 1964.

The State also introduced appellant’s Oklahoma pen-packet containing properly certified and exemplified copies of the judgment and sentence, along with photographs and fingerprints, showing that appellant had been convicted in Oklahoma County, Oklahoma, for the offense of second degree burglary on May 27, 1968.

Also admitted into evidence as provided for by Article 3718, V.A.C.S., were the printed statute books of the State of Oklahoma purporting to have been printed under authority in that state. Section 152 of Title 22 provides that the statute of limitations for the prosecution of burglary in the State of Oklahoma is three years.

Appellant testified at the punishment stage of the trial. He admitted that he had been convicted in April, 1964, in Robertson County and then spent time in the Texas Department of Corrections. Following his release he worked for a year and a half at a canning factory in Oklahoma. Garner then stated that he went to trial in Oklahoma in May of 1968 and had spent about four months in jail awaiting trial. He also said that eight other persons were involved with him in the offense in Oklahoma and that following his conviction he spent time in the Oklahoma State Penitentiary. On cross-examination he denied remembering when either of the offenses was committed.

Assuming that the information from the Oklahoma conviction should not have been admitted, there is sufficient proof to show that the offense was committed subsequent to the prior alleged conviction in Robertson County. A greater period of time than that provided by the Oklahoma statute of limitations elapsed between appellant’s conviction in Robertson County and his conviction in Oklahoma.

The record reflects that appellant was born March 14, 1945. He testified that he lived in Franklin County most of his life and went to the ninth grade in school. The indictment alleges the date of the offense in Robertson County as December 22, 1962. He was seventeen years of age at the time of the commission of the offense. According to his testimony, he had been in jail over nine months before he was tried. He testified that after leaving the Texas Department of Corrections he went to Oklahoma and held a job for a year and a half and that he was in jail in Oklahoma about four months before he was convicted in 1968. The records from Oklahoma show that he was a “Second Termer.” Considering his age, his testimony about where he lived and the records, the evidence is sufficient to show that the offense for which appellant was convicted in Oklahoma occurred subsequent to his release from the Texas Department of Corrections for time served following the Robertson County, Texas conviction.

The judgment should be affirmed.

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

The State insists, in its motion for rehearing, that we are not following precedent. According to its position, the requirement of Section 4 of Art. 3731a, Y.A.T.S., concerning certification of the attesting officer as the legal custodian of the official writing, was made inapplicable to enhancement cases by virtue of our decision in Lopez v. State, 171 Tex.Cr.R. 672, 352 S.W.2d 747.

The opinion in Lopez v. State, supra, provides:

“Appellant objected to the introduction of copies of the final judgment, sentence and commitment certified as being a true and full copy of the original by the deputy district clerk of the United States District Court for the Southern District of Texas. Such copies were admissible under the terms of Article 3731a, Vernon’s Ann.Rev.St., and the holding of this Court in Turley v. State, 168 Tex.Cr.R. 363, 327 S.W.2d 580, and the cases there cited. We find no reversible error in the remarks of the court made while ruling on the admissibility of such documents.”

The authority cited by the State does not do away with the requirement that the attesting officer be certified as the legal custodian of the official writing, nor does our decision in Turley v. State, supra. In Lopez, the defendant asserted that the introduction of copies of a federal judgment and sentence violated the prohibition against hearsay evidence. Complaint was also voiced with regard to the trial court’s comments during the introduction of the federal documents. But, the accused in that case never claimed that Art. 3731a, supra, was violated.

Section 4 of Art. 3731a, supra, provides:

“Such writings or electronic records may be evidenced by an official publication thereof or by a copy or electronic duplication attested by the officer having the legal custody of the record, or by his deputy. Except in the case of a copy of an official writing or official electronic recording from a public office of this State or a subdivision thereof, the attestation shall be accompanied with a certificate that the attesting officer has the legal custody of such writing. . . . ” (Emphasis added.)

The wording of this statute is mandatory. The information introduced by the State to support the enhancement allegations of the indictment has not been authenticated in compliance with the mandatory requirements of this statute. The information, therefore, cannot be used to support the enhancement of the appellant’s punishment pursuant to V.T.C.A., Penal Code Sec. 12.-42(d).

The motion for rehearing is overruled.

      . We have reviewed the record in Lopez v. State, supra. There is no certificate that the attesting officer in that case had the legal custody of the federal documents as required by Sec. 4 of Art. 3731a, supra. Nevertheless, error in regard to this defect was not voiced by the accused, nor was this defect noted in our decision affirming the conviction.