author: ROBERTSON, Justice. GONZALEZ, Justice,

text:
    Forrest L. KENNEDY, Petitioner, v. Richard J. HYDE, et al., Respondent.
    No. C-2930.
    Supreme Court of Texas.
    Dec. 12, 1984.
    Rehearing Denied Jan. 9, 1984.

      McGregor & White, Charles B. McGregor and Gregg White, Waco, for petitioner.
    Law, Snakard, Brown & Gambill, Walker C. Firedman and Larry L. Worden, R.G. Guthrie, Fort Worth, for respondent.
   ROBERTSON, Justice.

The question presented in this case is whether Texas Rule of Civil Procedure 11 bars enforcement of a disputed oral settlement agreement. Herman J. Smith sold capital stock in the Mansfield State Bank to a number of buyers, including Forrest L. Kennedy, Richard J. Hyde, and the other respondents in this cause. Subsequently, some of these purchasers, including Hyde, sued Kennedy and other defendants not appealing, seeking to recover interest paid to Smith for defendants’ benefit. Kennedy counterclaimed and also brought a third party action against Smith, alleging misrepresentation in the original stock sale.

Thereafter, the parties to the suit met for depositions, but instead became involved in settlement discussions. These discussions resulted in the drafting, revisions and eventual signing of documents settling the suit. All parties save Kennedy ultimately signed these documents.

Smith, Hyde and the other plaintiffs then amended their pleadings, alleging that although Kennedy refused to sign any of the settlement documents, he had nonetheless entered into an oral contract of settlement. As amended, the pleadings introduced the oral settlement as a basis for affirmative relief, seeking damages for breach of contract or specific performance. The oral agreement was also pleaded as a defense to Kennedy’s claims, on theories of accord and satisfaction, novation, waiver and es-toppel, among others. Kennedy likewise amended his pleadings to deny entering into any settlement agreement, and to point out the noncompliance of any alleged agreement with Rule 11 of the Texas Rules of Civil Procedure.

The trial court ordered a separate trial on the existence and validity of the alleged oral agreement. Pursuant to jury findings of an oral agreement to settle the lawsuit, the trial court rendered judgment against Kennedy, effectively enforcing the agreement according to its terms. The court of appeals affirmed, holding that Rule 11 does not prohibit the enforcement of disputed oral settlement agreements. 666 S.W.2d 325. We reverse the decisions of the courts below and remand the cause for trial.

For reasons soon apparent, a historical review of Rule 11 is in order. Tex.R.Civ.P. 11 states:

“No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”

This rule is not of recent origin, but can be traced in substantially its present form to District Court Rule 28, adopted in 1840 under the laws of the Republic of Texas, 1 Tex. 849, 852 (1848), and recodified as District and County Court Rule 47 in 1877 by authority of article V, section 25 of the Texas Constitution. See 47 Tex. 597, 625 (1877).

The original rationale for the rule was stated cogently in Birdwell v. Cox, 18 Tex. 535, 537 (1857).

“Agreements of counsel, respecting the disposition of causes, which are merely verbal, are very liable to be misconstrued or forgotten, and to beget misunderstandings and controversies; and hence there is great propriety in the rule which requires that all agreements of counsel respecting their causes shall be in writing, and if not, the court will not enforce them. They will then speak for themselves, and the court can judge of their import, and proceed to act upon them with safety. The rule is a salutary one, and ought to be adhered to whenever counsel disagree as to what has transpired between them.”

The requirement of a writing in District and County Court Rule 47 was litigated extensively. See generally L. Smoot, Annotated Rules of the Court of Texas 463-65 (1932). In Wootters v. Kauffman, 67 Tex. 488, 3 S.W. 465 (1887), the trial court refused to permit evidence of an oral stipulation of facts. In affirming, this court stated the general rule: “The agreement was oral, and ... cannot be deemed a written agreement, as required by the rules of practice prescribed by this court.... Not being in writing, it cannot be enforced as an agreement.” Id. at 495-96, 3 S.W. at 467.

Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871 (1939), is illustrative of court interpretation of old Rule 47, and is in many respects similar to the instant cause. The parties to a will contest already set for trial appeared in court and announced that a settlement had been reached. The trial judge duly made a docket notation of “judgment by agreement.” In preparing the consent decree, though, differences of opinion between the attorneys began to appear. Although testimony was conflicting, the Commission of Appeals noted, “[0]ne thing stands out as certain:' No formal decree signed by attorneys for all parties was ever presented to the court for approval, or to the clerk for entry.” 132 Tex. at 316, 123 S.W.2d at 872.

A motion for entry of judgment nunc pro tune was then filed, with an unsigned form of judgment attached. This form, movants

alleged, “contained the terms of the agreement which the parties had made at the time of the announcement in open court of settlement.” Id.

The description of the action then taken by the Matthews trial court closely parallels the procedure followed in the trial of this cause.

“On July 13, 1935, trial was had upon the motion to enter judgment. Much testimony, consisting largely of that of interested attorneys, was taken. This testimony appears to have related almost altogether to negotiations and discussions between attorneys prior to the announcement in court, and for some months thereafter. From this testimony it appears that the court manifestly was trying the question of whether or not there had ever been an agreement reached by the parties, and was attempting to reach a conclusion as to the terms of the agreement which they had actually made.... On one or more points the evidence of the attorneys was contradictory and conflicting.”

132 Tex. at 316, 123 S.W.2d at 872.

The Commission of Appeals refused to treat the lower court decision as a judgment nunc pro tunc, observing that “[t]he purpose is to enter a so-called judgment by agreement not evidenced by written decree when announcement of settlement was made, and not made in open court in an enforceable manner.” 132 Tex. at 317, 123 S.W.2d at 872. The Commission of Appeals reversed the decisions of the courts below and remanded for a trial on the merits, holding that “the agreed judgment, if actually orally consummated, was not announced in all of its essential details in open court, and was not ‘entered of record.’ ” 132 Tex. at 319, 123 S.W.2d at 873.

A final Rule 47 case bears mention. In Foster v. Gossett, 17 S.W.2d 469 (Tex.Civ.App.—Texarkana 1929, writ dism’d), the court of civil appeals held that evidence of a settlement agreement was properly excluded, concluding that “the compromise offer referred to was made by attorneys representing parties to the suit and accepted by attorneys representing other parties thereto, and that same was not enforceable because not evidenced as required by Rule 47 for the government of district and county courts.” Id. at 470 (emphasis added).

Rule 11 of the Texas Rules of Civil Procedure became effective on September 1, 1941. By its wording, Rule 11 mandates that “[n]o agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing .... ” The rule has been held applicable to a wide variety of agreements concerning lawsuits, including stipulations as to the testimony of absent witnesses, Austin v. Austin, 603 S.W.2d 204 (Tex.1980), and agreements to limit the issues in dispute. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979); see also 3 R. McDonald, Texas Civil Practice in District and County Courts § 10.12.3 n. 6 (1983). On at least two recent occasions, this court has strongly implied that a settlement agreement is also to be judged by Rule 11 standards. Williams v. Hollingsworth, 568 S.W.2d 130, 131 (Tex.1978); Vickrey v. American Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex.1976).

The court of appeals in the instant case attempts to avoid application of Rule 11 by making a fine distinction, stating that “the purpose of rule 11 is to authorize rendition of agreed judgments.” 666 S.W.2d at 327. As we understand the opinion, an agreement in compliance with Rule 11 would authorize an agreed judgment on the merits of the underlying suit. An agreement in violation of Rule 11 would support the same result in the same suit. The sole distinction would be that in the latter case, the judgment would recite that it was based on breach of the contract to settle the suit, rather than incorporating the terms of the contract to settle the suit.

Given this interpretation, no “agreement between attorneys or parties touching any suit pending” need comply with Rule 11. For example, since any stipulation could be characterized as a contract, see, e.g., Keller Industries, Inc. v. O.O. Reeves, 656 S.W.2d 221, 228 (Tex.App.—Austin 1983, writ ref d n.r.e.), any stipulation failing to comply with Rule 11 could nonetheless be enforced as a contract.

This court will not eviscerate Rule 11. Nor does the authority cited by the court of appeals support such a narrow interpretation. In Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951), this court refused to sanction a consent judgment where consent was withdrawn prior to rendition of judgment. The agreement in Burna-man, however, complied with the requirements of Rule 11. The face of the opinion in Stewart v. Mathes, 528 S.W.2d 116 (Tex.Civ.App.—Beaumont 1978, no writ) does not reveal whether the agreement complied with Rule 11, nor was the rule mentioned in the court of civil appeals’ opinion. Neither opinion speaks authoritatively to the question of enforcing a settlement agreement not in compliance with Rule 11.

It is not surprising to find discussion of Rule 11 and settlement agreements in appeals challenging consent judgments, as such a judgment is a normal method of effectuating a settlement. This does not, however, warrant the court of appeals’ conclusion that “the purpose of rule 11 is to authorize rendition of agreed judgments only if the agreement for judgment is me-morialized_” 666 S.W.2d at 327 (emphasis added).

A better statement of the general rule is that Rule 11 is a minimum requirement for enforcement of all agreements concerning pending suits, including, but not limited to, agreed judgments. Burnaman stands for the proposition that, notwithstanding a valid Rule 11 agreement, consent must exist at the time an agreed judgment is rendered. See also Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442 (Tex.1983); Samples Exterminators v. Samples, 640 S.W.2d 873 (Tex.1982); 4 R. McDonald, Texas Civil Practice in District and County Courts § 17.22 (1971). Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871 (1939), demonstrates that an agreement not in compliance with the rule will not support a consent judgment. Thus it may be said that as a general rule compliance with Rule 11 is necessary, but not sufficient for an agreed judgment. The clear language of the rule indicates, and this court holds, that compliance with Rule 11 is a general prerequisite for any judgment enforcing an agreement touching a pending suit.

It has been suggested that such a holding would abridge the substantive law of contracts and thus exceed the rule-making authority granted in Tex.Rev.Civ.Stat.Ann. art. 1731a (Vernon 1962). Article 1731a does provide that rules of procedure “shall not abridge, enlarge or modify the substantive rights of any litigant.” Rule 11 might be said to affect a substantive right by rendering certain oral contracts (i.e., those touching a pending suit) unenforceable in certain contexts (i.e., unless made in open court).

Whether this restriction actually abridges a substantive right is problematical. As the United States Supreme Court observed, albeit in a somewhat different context, “[t]he line between ‘substance’ and ‘procedure’ shifts as the legal context changes.” Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1143-44, 14 L.Ed.2d 8 (1965). “Each implies different variables depending upon the particular problem for which it is used.” Guaranty Trust Co. of New York v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079 (1945).

In this case, however, the issue is easily resolved without addressing such thorny questions in detail. Article 1731a gave the Texas Legislature the power to disapprove any rule it chose. Tex.Rev.Civ. Stat.Ann. art. 1731a, sec. 2. As already discussed, the predecessor rule had an extensive gloss of judicial interpretation upon it, and decisions like Birdwell, Matthews and Foster clearly presage the result in the instant cause. The legislature may reasonably be presumed to have been aware of these decisions construing the old rule and to have consented to those interpretations by approving identical language in Rule 11. Cf Coastal Indus. Water Auth. v. Trinity Portland Cement Div., Gen’l Portland Cement Co., 563 S.W.2d 916 (Tex.1978) (reenactment of statute implies acquiescence in judicial interpretation of predecessor statute).

Our holding, that Rule 11 means precisely what it says, should not be interpreted as requiring “slavish adherence” to the literal language of the rule in all cases. Sone v. Braunig, 469 S.W.2d 605, 611 (Tex.Civ.App.—Beaumont 1971, writ ref’d n.r. e.). To the contrary, there are well recognized exceptions to the rule in this state, and in other jurisdictions with similar requirements. See generally Annot., 7 A.L. R.3d 1394 (1966). For example, an undisputed stipulation may be given effect despite literal noncomplianee with the rule. Thomas v. Smith, 60 S.W.2d 514, 516 (Tex.Civ.App.—Texarkana 1933, writ dism’d). Likewise, an agreement in compliance with the rule is subject to attack on the grounds of fraud or mistake, Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951), and a nonconforming agreement may be enforced for similar equitable reasons. Williams v. Huling, 43 Tex. 113, 120 (1875). Quite recently, this court has interpreted the requirements of Rule 11 liberally to conform to modern trial practice. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979).

In determining whether a particular situation warrants an exception to Rule 11, an examination of the policy behind the rule is always paramount. Fidelity & Cas. Co. of N.Y. v. McCollum, 656 S.W.2d 527 (Tex.App.—Dallas 1983, writ ref’d n.r.e.). The reason for Rule 11 is clear. As already observed, oral agreements concerning suits “are very liable to be misconstrued or forgotten, and to beget misunderstandings and controversies.” Birdwell, 18 Tex. at 537.

“The purpose of this rule is evident, and its wisdom will be readily conceded. Agreements of counsel in the course of a judicial proceeding which affect the interests of their clients should not be left to the fallibility of human recollection. This is especially true with reference to agreed judgments which finally dispose of the rights of the litigants.

Wyss v. Bookman, 235 S.W. 567, 569 (Tex. Comm’n App. 1921, holding approved) (emphasis added).

The rationale underlying Rule 11 is sensible and contributes to efficient court administration. Agreements and stipulations are welcomed by courts because they limit the matters in controversy and expedite trial proceedings. Rule 11 ensures that such agreements do not themselves become sources of controversy, impeding resolution of suits. The requirements of Rule 11 are not onerous; the benefits are substantial.

The instant case illustrates the wisdom of the rule. The purported oral settlement agreement with Forrest Kennedy could easily have been reduced to writing and signed. In fact, all other parties to the suit did sign agreements comporting with Rule 11. Forrest Kennedy’s pleadings clearly, emphatically and unequivocally denied entering into an oral settlement agreement. Nonetheless, the existence and terms of the alleged agreement were litigated, consuming some six days of court time and generating well over $100,000 in attorneys’ fees on a $12,000 claim.

Respondents attempt to bring this case within an exception to Rule 11 by claiming that the oral agreement is “undisputed.” They point this court to reams of testimony and eventual favorable jury findings. This argument begs the question. The oral agreement was disputed and unenforceable at the moment its existence was denied in the pleadings; Rule 11 prohibits further inquiry.

While judicial efficiency and the wish to avoid disputes over the credibility of opposing counsel may well have been the original rationale for Rule ll’s requirements, changing times provide an additional benefit from the rule. In a day of burgeoning litigation and crowded dockets, the amicable settlement of lawsuits is greatly to be desired. This court has recognized both a public policy favoring settlements and the need for reasonable safeguards on the settlement process. See, e.g., Cypress Creek Utility Service Co., Inc. v. Muller, 640 S.W.2d 860 (Tex.1982); General Motors Corp. v. Simmons, 558 S.W.2d 855 (Tex.1977). Similar considerations are present in this case. A requirement that an out-of-court settlement be memorialized by a writing should aid the settlement process, permitting free and frank discussion and negotiation without fear that a careless word or mistake of meaning will itself become the basis for further litigation.

For the reasons stated, we reverse the judgments of the courts below and remand the cause for trial.

GONZALEZ, J., dissents with opinion that is joined by WALLACE, J.

GONZALEZ, Justice,

dissenting.

I respectfully dissent. I am of the opinion that the court of appeals rendered the correct judgment and that the writ should be dismissed as improvidently granted. Tex.R.Civ.P. 500.

I perceive a fundamental difference between an agreement concerning a suit and a suit concerning an agreement. In my judgment, Tex.R.Civ.P. 11 does not apply to an oral agreement concerning a suit when a party does not in good faith dispute the terms of that agreement. Since neither Kennedy nor his first attorney, who negotiated the settlement disputes the terms of the agreement, I am puzzled by my colleagues’ characterization of this case as one involving a “disputed” agreement. The only dispute concerns Kennedy’s refusal to be bound by the agreement.

The lack of dispute is evident in some brief excerpts of Kennedy's deposition which were introduced into evidence in his trial in 1982.

(Questions by Attorney Friedman, representing Herman Smith, Third Party Defendant):

Q Did you have any question in your mind about what you were doing when you agreed to settle; that is, you understood that you were agreeing to pay twelve thousand dollars that would end this lawsuit, as far as you knew; your claims and the claims against you? You understood that, didn’t you.?
A Yes. (S.F., p. 45)
Q ... But, when you left there that day, you believed it was settled and that there were no suits pending, going to be pending by you, or against you, as a result of the matters involved in this litigation, didn’t you?
A I presumed that was the case that day.
Q. Well, you know it was the case, don’t you?
A I presume so. I didn’t question it. Q You had agreed to execute a promissory note, and to relinquish all of your claims against everybody else, and they had agreed to relinquish them against you, in so far as this lawsuit is concerned.
So, you thought the whole thing was over, didn’t you?
A Providing that it all came about, then I would say, ‘Yes’. But, I had no assurance that it was all going to come about.
Q But, none of the terms that were eventually presented by way of the promissory note, or the Dismissal, or the Mutual Release were objectionable to you, were they?
A No, I did not object to the terms. (S.F., pp. 48-49)
Q ... Okay, Dr. Kennedy. If you take it all down to the basic facts, and don’t pay any attention to all of the legal technicalities at this point, what happened was, really, you agreed to settled (sic) on that date by executing a twelve thousand dollar promissory note, and by agreeing to execute dismissal and releases of all lititation involved, and then you subsequently “changed your mind, and decided not to do that at a later date, didn’t you?
A Yes. With — with the thought in mind that in the period of time as it went on, I did have a change of mind. (S.F., pp. 52-53).
Q Now, in reference to the fact that as you’ve mentioned awhile ago, that after the agreement had been reached, and so forth, that you, in fact, changed your mind. I’m talking about the October 5, 1978 transaction.
If you hadn’t changed your mind, you probably would have gone and signed the papers along with everybody else, isn’t that right?
A Yes, probably. (S.F., p. 54)
Q Okay, admit or deny this: That you agreed to execute a promissory note in the amount of twelve thousand dollars, payable to the Plaintiffs herein in the presence of Carl G. Quisenberry in exchange for all parties to the lawsuit at that time agreeing to relinquish all claims to each other arising from the subject matter of this litigation?
A As of precisely that date that’s true, but of course, as we testified earlier, there were a lot of reservations and discussions, but as of precisely that date, I would say yes. (S.F., p. 59).
Q And, you testified earlier, they subsequently handed you the documentation, and you didn’t read it, you just told them you weren’t going to do it, is that right?
A That’s true. I had already told them previously that I was not going to do it. Q And, so the documentation didn’t have a thing to do with it, did it?
A No.” (S.F., p. 60).
Q —What did you intend when you, as you say, ‘reluctantly’, agreed to settle on the terms we discussed in Carl Quisen-berry’s office in October of ’78, what did you intend?
A I intended to settle, provided that I found no other choice open, or nothing else. In fact, I asked him about taking it on a different arrangement.
As you may recall I had gone from a one-third fee splitting arrangement, and after the others agreed to settle, it left me with a three-thirds bill, which changed the whole complexion of economics in pursuing a lawsuit. So, reluctantly I had agreed to settle finally because I had no place to turn at that moment. (S.F., pp. 66-67).

As the court correctly recognizes, the purpose of Rule 11 is to require that agreements concerning suits “not be left to the fallibility of human recollection.” Wyss v. Bookman, 235 S.W. 567 (Tex.Comm’n App. 1921, holding approved); Matthews v. Looney, 132 Tex. 313, 319, 123 S.W.2d 871, 873 (1939). This is not a suit to construe the language of an unclear agreement, or one in which the court would be forced to supply absent terms. See Sergeant v. Goldsmith Dry Goods Co., 110 Tex. 482, 221 S.W. 259 (1920). The excerpts from Kennedy’s own testimony reveal that the terms were not in dispute. It is, therefore, my opinion that the underlying purpose of Rule 11 has been satisfied.

In Birdwell v. Cox, 18 Tex. 535, 537 (1857) this court stated that the rule requiring agreements concerning causes to be in writing “is a salutary one, and ought to be adhered to whenever counsel disagrees as to what has transpired between them.” (emphasis added). Further, this court has stated that the enforcement of an oral agreement lies within the discretion of the trial court, and such an agreement may be enforced to prevent unjust enrichment. Jenkins v. Adams, 71 Tex. 1, 8 S.W. 603 (1888). Williams v. Huling, 43 Tex. 113 (1875). Where the terms of an oral agreement or stipulation are undisputed or expressly admitted, the agreement should be enforceable even in the absence of a writing.

The court states that this ease closely parallels Matthews v. Looney, 123 S.W.2d 871. This reliance is misplaced because in Matthews there was a dispute between the parties and the attorneys that negotiated the agreement as to the terms of the agreement. There is no such dispute by the parties in our case.

To buttress its opinion, the court says that the “purported oral settlement agreement with Kennedy could easily have been reduced to writing and signed.” This assumption ignores the practical realities of modern trial practice. There is nothing easy about settling a multi-party, multi-suit controversy where charges and counter-charges have been exchanged. Suits are generally settled on broad terms on a “gentleman’s agreement.” Out-of-state witnesses may be released and juries discharged while the lawyers commence the process of drafting and getting the necessary signatures on the documente. Thereafter, the parties must arrange for court approval of the agreement. It is virtually impossible to complete these tasks in the space of one day or even a week. In a case such as this the process often takes several months.

This case has already been tried once to a jury. The jury answered special issues against Kennedy, and the trial court rendered judgment against him. The court of appeals correctly affirmed the judgment of the trial court. Once the announced purpose of Rule 11 has been satisfied, further adherence to its literal requirements becomes a “slavish adherence” to empty legal technicalities. I cannot condone the nullification by the majority of the results of a six day trial and a subsequent appellate review to require compliance with a procedural rule which, in this case, serves no apparent purpose. I would allow enforcement of this oral agreement and bring this matter to an end, avoiding further costly trials and appeals on this six-year old claim.

It used to be that a man’s word was his bond. I regret that the court’s opinion facilitates a further erosion of this value.

WALLACE, J., joins in this dissenting opinion.

      . Rule 47 was amended in 1892 by adding the phrase "or unless it be made in open court and entered of record." 84 Tex. 695, 715. The portion of Tex.R.Civ.P. 11 at issue in this cause, though, is unchanged since 1877.

      . The opinion notes that the oral agreement was “incorporated in the statement of facts which was signed by the counsel for the purpose of appealing from the former judgment.” 67 Tex. at 495-96. The opinion, however, antedates the 1892 revision adding “or unless it be made in open court and entered of record” to the rule. The South Western Reporter version of the case contains a printing error, as it substitutes “unsupported” for "incorporated.” 3 S.W. at 467.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bobby E. DIXON, Sr. et al., Petitioners, v. VAN WATERS AND ROGERS et al., Respondents.
    No. C-3437.
    Supreme Court of Texas.
    Dec. 19, 1984.
    Jenks Garrett, Arlington, for petitioners.
    Jearl Walker, Fort Worth, for respondents.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Bobby E. Dixon, Sr. and Gailya W. Dixon brought this products liability suit against Van Waters and Rogers, a Division of Uni-var Company, for damages arising out of the death of their son, Bobby Eugene Dixon, Jr., caused by the inhalation of toxic vapors. The trial court rendered judgment for the defendant after the jury refused to find that defendant Van Waters and Rogers failed to give adequate warnings of the dangers or adequate instructions for the safe use of the product. The jury also found that Bobby Eugene assumed the risk and refused to find any damages. The court of appeals correctly affirmed the judgment on the verdict. 674 S.W.2d 479 (1984).

While not material to the court’s disposition of the cause, the opinion of the court of appeals alludes to the “no-duty” concept that this court rejected in Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). The opinion appears to misinterpret the meaning of the concept that has now been rejected. The term “no-duty,” as used in Parker, referred to the oddity that had uniquely developed in Texas to confuse negligence law. It meant that a plaintiff had the burden to negate his own knowledge and his own appreciation of a danger. See Parker v. Highland Park, Inc. at 516-17. The rule that the plaintiff does not have the burden to obtain findings that disprove his own fault does not, however, mean that a plaintiff is excused from proving the defendant had a duty and breached it. A plaintiff does not have the burden to prove and obtain findings that he lacked knowledge and appreciation of a danger; he must, however, prove the defendant had a duty and breached it.

The trial court properly submitted an issue on voluntary assumption of risk and the court of appeals correctly applied that rule as it existed prior to February 15, 1984. In Duncan v. Cessna Aircraft Company, 665 S.W.2d 414 (Tex.1984), this court abolished that defense in products cases' as it had earlier done in negligence cases. Farley v. M M Cattle Co., 529 S.W.2d 751 (Tex.1975).

We refuse the application for writ of error because there is no reversible error. TEX.R.CIV.P. 483.


text:
    Mrs. Valerie Jacqueline COUCH et al, Petitioners, v. CHEVRON INTERNATIONAL CO., INC., et al, Respondents.
    No. C-3083.
    Supreme Court of Texas.
    Dec. 19, 1984.
    O’Quinn, Hagans & Wettman, John O’Quinn, Benton Musslewhite, Houston, for petitioners.
    Baker & Botts, Randy J. McClanahan, Fulbright & Jaworski, Jack Allbritton, Houston, for respondents.
   ON MOTION FOR REHEARING

PER CURIAM.

This is an appeal from a dismissal of a wrongful death action based on the doctrine of forum non conveniens. The plaintiffs are citizens of Scotland and are the survivors of a Scottish decedent who died while working for Chevron on a British flag vessel operating in the offshore oil fields of the North Sea. The plaintiffs filed suit to recover wrongful death damages under the Jones Act, 46 U.S.C. § 688 (1982). The defendants moved to dismiss the cause contending that, under applicable choice of law rules, the plaintiffs’ only cause of action existed in English law. Consequently, the defendants argued that the doctrine of forum non conveniens required the dismissal of the Texas action. The trial court granted the defendants’ motion. On motion for new trial, the plaintiffs asserted that in addition to the Jones Act suit, they also were suing under Tex. Rev.Civ.Stat.Ann. art. 4678 (Vernon Supp. 1984) to enforce their English causes of action. The plaintiffs, however, did not amend their pleadings to raise this matter, so the trial court denied the motion.

Responding to the plaintiffs’ appeal, the defendants urged: (1) that the plaintiffs’ failure to timely plead for relief under article 4678 served to waive any right to recover under that statute; and (2) even if plaintiffs properly pleaded an article 4678 cause of action, the doctrine of forum non con-veniens still would require a dismissal of this cause. In affirming the trial court, the court of appeals chose not to base its decision on the plaintiffs’ waiver of the article 4678 cause of action. 672 S.W.2d 16. Rather, the court sustained the defendants’ alternative argument that, even if the article 4678 cause of action were pleaded properly, the dismissal for forum non conven-iens still was correct. Id. at 18.

We refused this writ application, finding no reversible error, because we agreed that the plaintiffs waived their article 4678 cause of action. The court of appeals opinion, however, does not mention this waiver. Although the court of appeals reached the correct decision, that part of its opinion pertaining to article 4678 and forum non conveniens is dicta. Thus, the applicability of forum non conveniens to an article 4678 cause of action is an open question. Flaiz v. Moore, 359 S.W.2d 872, 876 (Tex.1962). Consequently, for the reasons stated, we overrule petitioners’ motion for rehearing on the application for writ of error.

      . Article 4678 in its pertinent part provides: Death in foreign state.
      Whenever the death of a [foreign] citizen ... has been ... caused by the wrongful act ... of another in any foreign ... country for which a right to maintain an action and recover damages thereof is given by ... such foreign ... country ... such right of action may be enforced in the courts of this State....


author: McCORMICK, Judge.

text:
    Raymond CASTANEDA, Appellant, v. The STATE of Texas, Appellee.
    Nos. 68144, 68145.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 26, 1984.
    Rehearing Denied Jan. 23, 1985.

      Mark F. Holland, J. Stephen Cooper, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gilbert P. Howard, Rider Scott and Cathey Crier, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

Appellant was indicted for the murders of Santos Mendoza Esquivel and Tierzo Obiedo. With appellant’s consent, the eases were tried together. Punishment in each case was assessed at ninety-nine years.

In his first ground of error, appellant claims that the evidence was insufficient to corroborate the accomplice witness’ testimony. Julia Resendez, the accomplice witness, testified that she accompanied Maria and Margarita Castaneda to a pool hall during the evening of March 22, 1980. There they met the appellant and Jerry Leos. While the group was at the pool hall, they met the victims. As the evening progressed, the victims began buying beer for Julia and her friends. At one point, while the victims were playing pool, Leos and appellant suggested they rob the victims. They told Julia that if she could lure the victims outside, they would then rob them. Julia agreed to take part. She approached Santos Esquivel and told him she wanted to talk to him outside about a proposition he had made to her earlier in the evening. The pair exited the pool hall and walked around the side of the building. As they were discussing the terms of the earlier proposition, appellant and Leos came out the back door of the pool hall and commenced to beat Esquivel. When Esquivel was beaten into unconsciousness, the trio gagged him, pulled his shirt up over his head, bound his hands behind him with a belt and dragged his body over near the neighboring grocery store. They removed his shoes, searched his pockets and found a total of $4.00.

Julia then went back into the pool hall and approached Tierzo Obiedo who was playing pool. Obiedo agreed to accompany Julia outside. Once again the same scenario was repeated. However, during the struggle with Obiedo, both appellant and Leos stabbed Obiedo with their pocket knives. After the attack, the trio hid Obie-do’s body behind a dumpster. They took off his trousers and boots and threw the trousers onto the roof of the pool hall. The trio netted $2.00 from Obiedo.

The accomplices then left the pool hall in Julia’s 1973 Thunderbird. As they were driving away, they decided that since they had killed Obiedo they would have to go back and kill Esquivel. Julia dropped appellant and Leos off a block away from the pool hall. The two men returned to Julia’s car a short time later and told Julia that they had killed Esquivel. Julia gave the men a ride home. Before appellant left her, he gave her the knife with which he had killed Obiedo. She stuck this knife inside her panties.

Other evidence adduced at trial showed that police investigators found one spot of blood in the alley beside the pool hall and another spot of blood immediately behind the pool hall. The body of Santos Esquivel was found lying beside the grocery store. The deceased’s shirt had been pulled over his head, his hands had been tied behind his back and, when the investigators pulled his shirt down, they discovered Esquivel had been gagged. The body of Tierzo Obiedo was found behind the dumpster. Obiedo’s trousers had been removed and investigators found a pair of trousers on the roof of the pool hall. Neither body had shoes on although two pairs of shoes were found in the nearby area.

Officers arrested Julia Resendez the morning after the offense. A search of Resendez as she was being booked into jail led to the recovery of a pocketknife hidden in her panties.

Sarah Williams, a forensic serologist, testified that she did a series of blood analysis on items of evidence recovered during the investigation of the case. She testified that Santos Esquivel had type A blood while Tierzo Obiedo had type 0 blood. A sample of blood taken from behind the pool hall was type 0 blood and a sample of blood taken from the alley beside the pool hall was type A blood. The pocketknife obtained from Julia Resendez contained stains of type A blood. Tests on a coat and trousers removed from appellant’s home also revealed stains of type A blood. Finally, Williams testified that if an object was first covered with type 0 blood and then covered with type A blood, the type A blood would mask the type 0 blood so that testing would only reveal the type A blood.

Finally, Dr. Charles Petty, testified that he conducted autopsies on both victims. Both men had been beaten about their faces with blunt instruments, possibly fists. They had then been stabbed numerous times with a knife having a blade of 2½ to 3 inches in length. Both bodies contained abrasions consistent with being dragged along the ground. Dr. Petty further testified that he found no defensive wounds on Esquivel’s body and he found this significant in that ordinarily an individual would not remain motionless while being stabbed numerous times. Dr. Petty thus concluded that Esquivel must have been disabled in some manner before he was stabbed. Obiedo’s body also showed no evidence of defensive wounds.

The trial judge instructed the jury as a matter of law that Julia Resendez was an accomplice witness. Article 38.14, V.A. C.C.P., requires that before a conviction can be obtained based upon the testimony of an accomplice witness, there must be some corroborating testimony that tends to connect the defendant with the offense. To test the sufficiency of this corroborating testimony, the reviewing court must eliminate from consideration the evidence of the accomplice witness, and then examine the evidence of the other witnesses to ascertain if it is of an incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient. Paulus v. State, 633 S.W.2d 827 (Tex.Cr.App.1982) (on rehearing); Walker v. State, 615 S.W.2d 728 (Tex.Cr.App.1981); Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979). The corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Walker v. State, supra; Eckert v. State, 623 S.W.2d 359 (Tex.Cr.App.1981); Carrillo v. State, supra.

However, a conviction cannot stand if the corroborative evidence does no more than point the finger of suspicion towards an accused. Paulus v. State, supra; 24 Tex.Jur.2d Evidence, Sec. 694, p. 326, note 18, and cases there cited. Thus, if the accomplice witness states a number of facts that are corroborated by evidence of other witnesses, but these corroborated facts do not tend to connect the accused with the crime, the requirements of Article 88.14, Y.A.C.C.P., are not met. Paulus v. State, supra.

Our review of the record reveals this to be the problem in the instant case. Although the State’s case contains á great amount of detailed corroborative evidence which shows the commission of the murders, there is no corroborative evidence which links appellant to the crime. The State argues that blood found on appellant’s discarded clothing links appellant to the crime. We would note initially that the only testimony which identifies these items of clothing as belonging to appellant is hearsay testimony from one of the investigating officers. The State’s brief emphasizes that the yellow coat was found in “Appellant’s bedroom.” However, the record does not bear this out. The officer’s testimony only refers to “the bedroom of the home.” The evidence showed that appellant lived in the house with his mother and brother and there is no testimony that shows who occupied “the bedroom.” Secondly, there is no evidence in the record that appellant was wearing this clothing at the time of the murders. The State also argues that the bloodstained knife connects appellant to the offense. However, the only evidence linking appellant to the knife came from the accomplice witness. No one else testified that the knife belonged to appellant, or that he was ever seen in possession of the knife. The State further argues that the evidence showed flight on appellant’s part since he was not at home when the police came to arrest him the evening after the offense. Once again, there is no evidence in the record to show flight. The record only shows that appellant was not at home when the officers attempted to execute the arrest warrant. Finally, the State argues that the evidence shows that appellant and Jerry Leos admitted the killings in the presence of several other persons shortly after the offense. However, the only testimony concerning these admissions came from the accomplice witness. The State did not have any of the other persons who heard these admissions testify. Thus there is no corroboration. There is no evidence other than the testimony of the accomplice witness that places appellant and Leos at the pool hall at any time. The corroborative evidence produced by the State in no way connects appellant to the crime. Because of the lack of evidence in this regard, we find that the evidence is insufficient.

The judgments are reversed and remanded to the trial court for the entry of judgments of acquittal in both cases. See Ex parte Reynolds, 588 S.W.2d 900 (Tex.Cr.App.1979), cert. denied, 445 U.S. 920, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).


author: ODOM, Judge.

text:
    Arthur Lee WILLIAMS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 69147.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 10, 1984.
    Rehearing Denied Jan. 23, 1985.

      James Stafford, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, Keno Henderson, Andy Tobias and Charley Davidson, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of capital murder; the punishment in this case is death. Appellant raises eleven grounds of error. Six relate to jury selection, two address rulings on the admissibility of evidence, two complain of jury argument, and one challenges the sufficiency of the evidence.

We first address the six grounds of error relating to the jury selection process. In three of these appellant complains of the trial court excluding prospective jurors on the state’s challenge for cause. Reliance is placed on Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), which held it is improper to exclude a prospective juror in a capital case merely because he would be affected in deliberations by the fact that the death penalty might be imposed. It is not error, however, to exclude a prospective juror who would automatically vote against the death penalty regardless of the evidence. E.g. Griffin v. State, 665 S.W.2d 762 (Tex.Cr.App.1983); Woolls v. State, 665 S.W.2d 455 (Tex.Cr.App.1983); Jemigan v. State, 661 S.W.2d 936 (Tex.Cr.App.1983). The three prospective jurors addressed in appellant’s grounds of error were properly subject to challenge for cause by the state on this ground, as reflected in the following excerpts of the record:

Prospective Juror Guyton:
* sfe * % * *
“So can I take it from what you have said: Regardless of what the evidence was, you could just not answer those questions ‘yes’?
“MRS. GUYTON: I could just not agree with capital punishment.
“MR. HENDERSON: Okay. But I need to ask you further: Could there be any circumstances or any evidence at all that would ever cause you to answer those questions ‘yes’?
“MRS. GUYTON: There could be no circumstances, no.”
* ⅝: * ⅜ * *
“MR. STAFFORD: And, now again, like Mr. Henderson said, there are certain people who say, T just can’t follow the law, regardless of what the situation is.’
“Do you think in your opinion that people like Charlie Manson out in California, who went in and killed all those ladies and cut open their stomachs and took their babies out, that they should not die at all? They should just live for the rest of their life?
“MRS. GUYTON: I think they should perhaps be punished, but not die from it.
“MR. STAFFORD: Okay. So in your opinion, regardless of how horrible the crime is — for example, like the guy down in Atlanta that killed all those young black boys, and it seemed like to be a very planned, premeditated — he sexually abused them, et cetera, and then killed them — that ‘death’ in that situation would not be a proper punishment?
“MRS. GUYTON: True. It is not a proper punishment.
“I don’t think there is a crime—
“MR. STAFFORD: In your opinion.
“MRS. GUYTON: In my opinion.
“MR. STAFFORD: So you are telling me and my client that you could not in any situation put your feelings aside in regard to your feelings toward capital murder and follow the instructions that the Court gave you in regard to these questions?
“MRS. GUYTON: No, I couldn’t put my feelings aside in regard to capital punishment.
“MR. STAFFORD: I have nothing else.”
Prospective Juror Ewing:
* ⅝! Sfc * * *
“MR. HENDERSON: In other words, you just have a disagreement with the law to the point of not being able to follow it with regard to the death penalty?
“MR. EWING: Just the death penalty, yes.
“MR. HENDERSON: And if just because the law might say if you find beyond a reasonable doubt that these questions should be answered ‘yes,’ you must answer them ‘yes,’ are you saying you just would not be able to do that because of the way you feel?
“MR. EWING: Yes.
“MR. HENDERSON: And even if the Court instructed you to do that, are you saying you would answer them ‘no’ anyway, regardless of what the evidence showed?
“MR. EWING: Yes.
“MR. HENDERSON: And even if the evidence showed you or proved to you beyond a reasonable doubt that they ought to be answered ‘yes,’ are you saying you would answer them ‘no’ anyway?
“MR. EWING: If it has to do with the death penalty, yes.
“MR. HENDERSON: Now, what is going to happen — you would know what is going to happen if you answered the three questions ‘yes.’
“MR. EWING: Yeah, definitely.
“MR. HENDERSON: The judge is going to sentence the defendant to death.
“MR. EWING: Yeah.
“MR. HENDERSON: We can do whatever we want to about saying you are just answering questions, but you know if those three questions are answered ‘yes,’ the Judge is going to sentence a defendant to death. There is no getting around that. Essentially you are making the finding.
“Knowing that, are you saying that you just couldn’t follow the instructions that might be given to you by the Court with regard to what you needed to do in a particular situation in deciding these questions?
“Am I making myself clear?
“MR. EWING: Yes.
“MR. HENDERSON: So, are you telling the Judge, then that you just couldn’t follow the law that might be instructed to you to do, that particular law being— ‘That I just could not for that particular law, being that if I find beyond a reasonable doubt that the answers should be “yes,” that I would answer them “yes.” ’ You are saying you just couldn’t do that because of the way you feel about the death penalty?
“MR. EWING: Yes.
“MR. HENDERSON: And knowing that if you answered them that way, that the person was going to be sentenced to death?
“MR. EWING: Yes.”
Prospective Juror Jahnke:
“MR. STAFFORD: Are you telling me that you would answer one of the questions ‘no’ in a fact situation like that so the gentleman would not die? Even though you know—
“THE COURT; Let him answer the question, please, Counsel.
(The Court addresses the juror:)
“Your answer?
“MR. JAHNKE: Yes.
“MR. STAFFORD: I have no other questions.
“I suggest there is not cause.
“THE COURT: Your last ‘yes’ answer, sir, was the Court to understand that you said that you would answer one of the questions ‘no’ so that the death sentence would not be assessed?
“MR. JAHNKE: Well, I can’t say ‘possible,’ so I have to say ‘yes’ or ‘no’; so I have to say ‘yes.’ It is very possible, yes.
“THE COURT: Can you base your answers strictly on the evidence without considering the results of those answers?
“MR. JAHNKE: No.
“THE COURT: Knowing the results of the answers and taking them under consideration, can you strictly base your answers on the evidence and your interpretation of that evidence?
“MR. JAHNKE: No.”

The grounds of error are overruled.

Two other grounds of error are based on rulings by the trial court denying appellant’s challenge for cause. Appellant contends prospective juror Hamilton was subject to challenge for cause because of her personal acquaintance with the deceased and his widow and children. The record reflects the following on this subject:

“Q. You stated that you had never met Mr. Shirley yourself or have you had—
“A. I have never been introduced to him, no.
“Q. Did you see him in church?
“A. I am sure I have. I cannot recall him ever at a point. Our church is quite large. It is 5,000 membership and we have two church services and two Sunday School services, so it is very easy not to have seen him.
“Q. Okay.
“A. His wife, yes, I have seen.
⅜ ⅜ ⅜ ⅝ sfc ⅝
“Q. Okay. Having that exposure and having the relationship with the wife, I question in my mind how you can sit there and presume my client to be innocent.
“A. I did not have a relationship with the wife. I said I knew her. I would not consider myself a close friend or anything to her. I just knew her.
“Q. Okay. Let’s talk about — how did you know her? In what capacity?
“A. Okay. In our church, there is like — our Sunday School department, at one time, and I don’t remember the year or anything, she was the in-service member of our Sunday School department which means that she does not come to our Sunday School department, but she is on our row and that is how I know, you know.
“Q. What’s her first name?
“A. Donna.
“Q. Donna. Well, Donna may testify in this case. Do you know her? She may be on that witness stand right where you are there.
“A. Yes.
“MR. HENDERSON: We object to that, Your Honor. She is not on the subpoena list.
“THE COURT: Sustained. Please keep it abstract, counsel.
“MR. STAFFORD: Well, Your Honor, I think hypothetically, I need to ask her in the event she testifies—
“THE COURT: Then ask her that.
“MR. STAFFORD: Okay.
BY MR. STAFFORD:
“Q. Let me phrase it this way. In the event she testifies, you as the prosecution has already told you, aire going to be the judges of the credibility of the witnesses. And I am trying to think in my mind how you, knowing the lady, are going to start her off on the same level with the other witnesses. That it would appear to me that you would tend to give her more credibility and automatically believe her just because you know him.
“A. Just because I know who somebody is doesn’t mean I am going to give her any preference over somebody else. I know her, but when it comes to close friends or somebody you have done something with, I could say yes, but as far as knowing who she is, you know, I do not know her personally.
“Q. You know she is the widow or the grieving widow in this situation, do you not?
“A. Yes.
“Q. And you saw the publicity on the television and you knew the—
“A. All I saw was where a police officer was shot. I never read anything else about it.
“Q. That’s what I am saying. But you knew a police officer was shot?
“A. Right.
“Q. And you are active in the church, and I gather that his wife is somewhat active in the church.
“A. I suppose so.
“Q. Okay. And I am curious that if you were on the jury, giving you a hy-pothet, that Mr. Henderson gave that you had to make a choice of not guilty of capital murder or guilty of capital murder, and you had no other choices, and if you believe beyond a reasonable doubt that my client intentionally and knowingly shot this man, but if you also believe beyond a reasonable doubt that he didn’t know he was a police officer, okay?
“A. Yes.
“Q. Theoretically, and in theory, he is not guilty of capital murder. And if you vote not guilty, that means he will ride down on the elevator with you.
“And I am thinking in my mind, how you, Mrs. Patricia Hamilton, can go back to your church and face the grieving widow and say I let a murderer go?
“A. That has nothing to do with this. I am not trying her. I am not worrying about her feelings. I am trying to do — I mean, I don’t see her. I don’t think that has anything to do with this.
“Q. Well, see, I am being paranoid as you can understand.
“A. Well, I understand.
“Q. And now, I see a lady who is somewhat active in her church and I also — from the information I got, you know, we have a police officer who was active in the church and a wife who was active in the church, greatly loved by the members of the church, et cetera, and here I got a lady who could go back a time later after the trial and I am trying to figure out what kind of pressures the church could bring on you if for some reason you believe the State didn’t meet its burden of proof.
“A. I don’t understand.
“THE COURT: What’s the question, counsel?
“THE WITNESS: I don’t understand you.
BY MR. STAFFORD:
“Q. The question is how is it going to affect you?
“A. I don’t think it has any effect. If I am in my own mind decided with a reasonable doubt, it will not have any effect.”
* * * * * *
“THE COURT: Mrs. Hamilton, are you saying that you can or cannot set any personal feelings aside and answer the questions or make your determination strictly based on the evidence, or are you saying that this would affect your consideration?
“THE WITNESS: That would not affect because I did not know the people personally.”

The trial court did not abuse its discretion in denying the challenge for cause when Mrs. Hamilton stated she could set aside her remote acquaintance with the family of the deceased. See Anderson v. State, 633 S.W.2d 851, 854 (Tex.Cr.App.1982). The ground of error is without merit.

Appellant contends prospective jur- or Belcher was subject to challenge for cause because of bias against life imprisonment for capital murder. When the challenge for cause was denied, appellant exercised a peremptory challenge against Belcher. After having exhausted his peremptory challenges, appellant requested five additional strikes and was given one by the trial court. Assuming arguendo that the challenge for cause against Belch-er should have been granted, the allowance of an extra peremptory challenge corrected any such error. See Payton v. State, 572 S.W.2d 677, 680 (Tex.Cr.App.1978). The ground of error is overruled.

In the last ground of error concerning jury selection, appellant asserts his rights under the VIth and XIVth Amendments to the United States Constitution were violated because the prosecutor exercised five peremptory challenges against prospective jurors who were black, because appellant is black and the deceased was white. The mere exercise of peremptory challenges is not sufficient to sustain the ground of error; there is no showing of systematic exclusion. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Phelps v. State, 594 S.W.2d 434, 437-438 (Tex.Cr.App.1980). The ground of error is without merit.

Five grounds of error concern the trial on the merits. Two address rulings on the admissibility of evidence, two address jury argument, and one concerns the sufficiency of the evidence.

This case was prosecuted under V.T. C.A., Penal Code Sec. 19.03(a)(1), which makes a capital offense of the murder of a peace officer or fireman acting in the lawful discharge of an official duty and who is known by the accused to be a peace officer or fireman. Appellant challenges the sufficiency of the evidence to prove he knew the victim was a peace officer. In addressing this issue in his brief appellant fails to consider testimony given by defense witnesses on cross-examination by the state. In determining the sufficiency of the evidence it is proper to consider all of the evidence before the jury.

The record shows that appellant and the deceased were in a struggle before the fatal shooting. It was the state’s theory that the deceased was attempting to arrest appellant on a fugitive warrant from Minnesota. Appellant was living in Houston under an assumed name to avoid apprehension. When the deceased confronted appellant he had his gun drawn, but the safety was on. Appellant noticed this fact and resisted the deceased. In the ensuing struggle appellant pulled a derringer from his back pocket and shot the officer twice, causing his death. The evidence was disputed as to whether the officer informed appellant that he was an officer and that he was placing appellant under arrest. It was appellant’s testimony that the deceased did not announce his purpose or that he was an officer. It is undisputed that the deceased was working undercover and was not dressed as an officer. Appellant also presented testimony that he had previously been robbed in Houston by a man posing as a police officer making an arrest, and by this testimony sought to show mistake of fact. Two defense witnesses, however, testified on cross-examination to statements made to them by appellant that showed his knowledge that the deceased was a police officer.

One witness on cross-examination testified:

“Q. That the defendant said, that during the course of being there, that he looked at the gun and saw that it was not cocked and did not think it would fire without being cocked so that is when he got into the struggle over the gun?
“A. Yes.
“Q. That during the struggle over the cop’s gun that they could not turn it either way, and then Arthur got his gun from his pocket and tried to shoot him in the nuts?
“A. That is correct.
“Q. That he, meaning the police officer, got up, or, I’m sorry — that he, meaning Arthur, jumped up, and then the cop got up and started to run, and that is when he fired at the cop?
“A. Yes.
“Q. And that when they were struggling on the ground, that a white guy came up, and the man that Arthur said he was wrestling with shouted he was a cop and needed help?
“A. Yes.”
The other witness on cross-examination testified:
“Q. Do you recall saying in your statement here, ‘Art turned around and saw a badge and a gun’?
“Is that what it says?
“A. Yes.
“Q. Did you say that?
“A. Yes.
“Q. Now that you have read your statement, your memory is refreshed to that point? Is that correct?
“A. Yes.
“Q. Did Arthur tell you, during the course of this struggle, that he grabbed for the gun?
“A. Yes.
“Q. He said they struggled for the cop’s gun and they fell to the ground?
“A. Yes.
“Q. They rolled around, and the cop’s gun had a safety on it and it would not fire.
“A. Yes.
“Q. And Art said that he got his gun, which is a Derringer, a .38, and fired one time at the cop as they were on the ground.
“A. I can’t remember that, sir.
“Q. Why don’t you use your statement here? May be it would help you refresh your memory.
“Arthur said that he got his gun, which is a Derringer, a .38, fired one time at the cop as they were on the ground, and the cop got up.
“A. Yes.
“Q. Is that the way you recall it?
“A. Yes.
“Q. That is what happened? Is that correct?
“A. Yes.
“Q. They were in the breezeway and ran toward the parking lot. Is that what happened, or is that what Arthur said happened?
“A. Yes.
“Q. Did he say the cop dropped his gun there in the breezeway?
“A. During the course of the struggle, he dropped his gun.
“Q. Said the cop dropped his gun in the breezeway. Did Arthur say that he thought there could have been another person outside and he followed?
“A. I don’t understand that question.
“Q. Okay. Did Arthur tell you, that after the cop dropped his gun in the breezeway, that Arthur thought — told you that he thought there could have been another person outside, and he followed? .
“A. Yes.
“Q. He followed and fired at the cop a second time with his Derringer in front of his girlfriend’s car.
“A. Yes.
“Q. That is what Arthur said.
“A. Yes.
“Q. And he said this car was a ’78 Cougar with, Louisiana plates, is that correct?
“A. Yes.
“Q. Art said that he picked up the cop’s gun. Is that right?
“A. Yes.
“Q. And you asked Arthur why he shot a second time since he had hit him the first time. And Arthur said to you that he thought he was going to his ear and his buddies. Is that right?
“A. Yes.
“Q. That is what Arthur told you?
“A. Related to the incidents that happened before
“Q. Well, did you say, T asked Art why he shot a second time since he had hit him the first time and Arthur said that he thought he was going to his car and his buddies.’
“A. Yes.
“Q. That is what Arthur told you?
“A. Yes.
“Q. Did Arthur tell you that another white guy came up while they were fighting over the cop’s gun and told the man that he was a cop and to call the police?
“A. Yes.
“Q. That is what Arthur told you?
“A. Yes.
“Q. And this was before the first shot?
“A. No, sir.
“Q. It says, ‘Arthur told me that another white guy came up while they were fighting over the cop’s gun and he told the man that he was a cop and to call the police. This was before the first shot.’
“Does that refresh your memory?
“A. Yes.
“Q. Is that what Arthur said?
“A. Yes.”

We find the evidence sufficient to prove appellant knew the deceased was a police officer. The ground of error is overruled.

Appellant challenges a ruling by the trial court that allowed the state to impeach one of its own witnesses by using a statement she had given police about statements made to her by appellant. A fact issue was raised as to whether the state was surprised by her failure to testify in accord with her prior statement. It is also argued by appellant that her failure to testify as expected did not constitute injury to the state as required before impeachment of one’s own witness is permitted. See Houston v. State, 652 S.W.2d 389 (Tex.Cr.App.1983). We need not decide the merits of the issue, nor the sufficiency of the objection at trial, as challenged by the state, because we find that even if the impeachment should not have been allowed, it was harmless in view of the testimony produced on cross-examination of defense witnesses and set out earlier in this opinion. The statements used to impeach the witness constituted admissions by appellant to that witness that were substantially the same as admissions by him shown on cross-examination of defense witnesses. The ground of error is overruled.

In another ground of error appellant complains of the exclusion of evidence of hospital records offered to support appellant’s testimony that he had previously been robbed by a man posing as a police officer. Appellant had testified that he had shot that assailant in the arm. The hospital records showed treatment of a named individual for such an injury on that date. Appellant failed to show, however, that the man appellant shot and the man treated at the hospital were the same person. The evidence was excluded on this basis. Although counsel indicated to the trial court that he would seek a witness from the hospital who might identify as the person treated, a photograph of the man appellant had identified, no such witness was presented. Absent a showing of identity it was not error to exclude the evidence. The ground of error is without merit.

The remaining two grounds of error complain of jury argument. No trial objection was made, and the argument is not such that an instruction to disregard could not have removed any harm. The grounds of error are overruled.

The judgment is affirmed.

CLINTON, McCORMICK and MILLER, JJ., concur in the result.

TEAGUE, J., dissents to disposition of ground of error number one.

TOM G. DAVIS, J., not participating.


author: TEAGUE, Judge. CLINTON, Judge,

text:
    Gilbert W. SUTHERLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 67359.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 19, 1984.

      Robert C. Hinton, Jr., James E. Shoemaker, Dallas, for appellant.
    Patrick C. Batchelor, Dist. Atty., Corsica-na, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

TEAGUE, Judge.

Gilbert W. Sutherlin, appellant, was convicted by a jury of theft of one John Deere bulldozer of the value of more than $10,-000, that was then owned by Jerry Daniels, its special owner. The jury also assessed punishment at seven (7) years’ confinement in the Department of Corrections and a $10,000 fine.

Appellant asserts in one ground of error that the evidence is insufficient to sustain the verdict of the jury. We agree.

In pertinent part, the indictment against appellant alleges that he “did then and there intentionally, knowingly and unlawfully appropriate property, to wit: one John Deere bulldozer of the value of more than ten thousand dollars, from Jerry Daniels without the effective consent of Jerry Daniels, the owner thereof, and with intent to deprive said owner of said property.” This alleges an offense under V.T.C.A., Penal Code, Section 31.03(b)(1), the actual theft statute. It does not, however, allege an offense under Section 31.03(b)(2), which proscribes receiving stolen property.

In light of appellant’s contention, that the evidence is insufficient, it is necessary that we review the salient facts of the case, which come to us from the State’s witnesses who testified in this cause.

The facts reflect that during the month of August, 1979, personnel of Lightning Construction Company, located in Corsica-na, discovered that a company bulldozer, valued at approximately $25,000, was missing from the location where it had been placed. It was taken without the consent of Jerry Daniels, the then owner of the corporation, who was, of course, a special owner of the bulldozer. Subsequently, on September 17, 1979, after the bulldozer could not be located, the loss was reported to personnel of the Navarro County Sheriffs Office, who thereafter commenced an investigation.

The evidence also reflects that on January 19, 1980, Charlie Jock borrowed a bulldozer from appellant. About two weeks later, the bulldozer got stuck in mud. For reasons not reflected in the record of appeal, Jock contacted personnel of the Navarro County Sheriff’s Office for assistance. A deputy sheriff came out, examined the bulldozer, and discovered that the bulldozer had the same serial number on it as did the bulldozer that had been unlawfully removed from where it had been put by personnel of Lightning Construction Company.

The evidence further reflects that on February 6,1980, at a time when he was incarcerated in the Navarro County Jail, but after he was given his Miranda warnings, appellant was confronted by a Navarro County deputy sheriff who attempted to question him why he had had possession of the stolen bulldozer. Appellant declined to answer; instead, he demanded that he be permitted to consult with the attorney who was then representing him. The deputy sheriff then terminated his questioning.

Contrary to most cases where the State relies upon the defendant’s possession of stolen property to establish his guilt, in this instance, the State did not present any accomplice witness testimony. Nor did the State present evidence that at the time appellant was confronted by the deputy sheriff he attempted to flee.

Since the direct evidence that was adduced in no way indicates that appellant participated, either individually or as a party, in the original theft of the bulldozer, it is necessary for us to determine whether the State established appellant’s guilt through circumstantial evidence. See Cooper v. State, 537 S.W.2d 940, 944 (Tex.Cr.App.1976).

The standard for reviewing the sufficiency of the evidence on appeal is the same for direct and circumstantial evidence cases; and that is to view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983); Freeman v. State, 654 S.W.2d 450 (Tex.Cr.App.1983); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983); Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983); see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Notwithstanding that we find that the above facts clearly establish that appellant was in exclusive possession of the stolen bulldozer at the time he loaned it to Charlie Jock, under the law, this, standing alone, is insufficient to sustain the State’s burden of proof to establish appellant’s guilt. Normally, recent, unexplained possession of stolen property is a sufficient circumstance, in and of itself, to convict the possessor of stolen property of the theft of the property. However, before such rule of law may be invoked by the State, it must establish all of the elements of the rule, namely, it must establish that such possession was personal, recent, unexplained, and involved a distinct and conscious assertion of the property by the defendant. Remote possession of stolen property, unaccompanied by other facts connecting the defendant with the unlawful taking of the property, is insufficient to support a conviction under the above rule of law. 55 Tex. Jur.2d, Section 217. To draw the inference of guilt from the circumstance alone of possession of stolen property, the defendant must be shown to have been in possession thereof recently after the actual theft. See McKnight v. State, 399 S.W.2d 552, 555 (Tex.Cr.App.1966); 5 Branch’s Ann. P.C., 2d Ed. Sections 2650 and 2651. However, mere possession of stolen property does not give rise to a presumption of guilt; it is only an inference of guilt, which is not conclusive of the defendant’s guilt. Hardesty v. State, 656 S.W.2d 73 (Tex.Cr.App.1983).

In this instance, other than appellants mere possession of the stolen bulldozer almost five months after the actual theft, there is no other evidence connecting him or tending to connect him to the actual theft of the bulldozer.

Ordinarily, whether stolen property is “recently” possessed by the defendant is a question of fact, see Smith v. State, 518 S.W.2d 823 (Tex.Cr.App.1975); Ellard v. State, 509 S.W.2d 622 (Tex.Cr.App.1974); Wall v. State, 167 Tex.Cr.App. 634, 322 S.W.2d 641 (Tex.Cr.App.1959); Allen v. State, 262 S.W. 502 (Tex.Cr.App.1924), and not of law. However, depending on the facts and circumstances of the case, such possession of stolen property may be remote as a matter of law. Yates v. State, 37 Tex.Rep. 202 (Tex.Sup.Ct.1873); Bragg v. State, 17 Tex.App. 219 (Tex.Ct.App.1884); Bean v. State, 24 Tex.App. 11, 5 S.W. 525 (Tex.Ct.App.1887); Menchaca v. State, 58 Tex.Cr.R. 198, 125 S.W. 20 (Tex.Cr.App.1910); Preston v. State, 178 S.W.2d 522 (Tex.Cr.App.1944).

In this instance, before it was established that appellant was in possession of the stolen bulldozer, almost five months had elapsed since the bulldozer had been missed from its location. Although such was a circumstance of guilt, it was, standing alone, only a circumstance of his guilt, which was not conclusive of his guilt. Hardesty v. State, supra. Furthermore, the inference of guilt that might be drawn from mere possession of stolen property necessarily greatly diminishes as time elapses, until it becomes so slight as to hardly make an impression upon a reflecting mind. Yates v. State, supra.

From the above summary of the facts, it should be obvious that appellant’s conviction rests solely upon the inference of guilt from his mere possession of the stolen bulldozer. The evidence does not establish that such possession was recent. Because appellant’s possession of the stolen bulldozer was not shown to have been recent possession, we are precluded from invoking and applying the rule of law that governs recent, unexplained possession of stolen property. See supra. Furthermore, but as previously noted, remote possession of stolen property, unaccompanied by other incriminating facts, is insufficient to support a theft conviction.

As the State has failed to prove beyond a reasonable doubt what it alleged, we are compelled to hold that the evidence is insufficient, as a matter of law, to sustain appellant’s conviction. Under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), appellant is entitled to an acquittal.

The judgment of conviction is reversed and the cause remanded to the trial court so that it can enter a judgment of acquittal on behalf of appellant.

CLINTON, Judge,

concurring.

Though I agree that the evidence is insufficient to support the verdict of the jury finding appellant guilty of theft and, therefore, concur with much of the opinion and with the judgment of the Court, I must again disassociate myself from its continuing adherence to the mistaken analysis of V.T.C.A. Penal Code, § 31.03 made by a panel of the Court in Casey v. State, 633 S.W.2d 885 (Tex.Cr.App.1982). See Berg v. State, — S.W.2d - (Tex.Cr.App., No. 451-88, delivered November 14,1984) (Clinton, J., dissenting).

There is no such offense as “actual” theft relative to “receiving stolen property” or some other purported kind of theft. Theft is theft is theft. Y.T.C.A. Penal Code, § 31.02: “Theft as defined in Section 31.03 of this code constitutes a single offense ...”

Use of such terms in the opinion of the Court in this instant cause is reminiscent of Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976), viz:

“Since the evidence in no way indicates that he participated in the actual taking of the car, his offense must fall within Subsection (b)(2) of Section 31.03.

Id., at 944.

To persist in an archaic idiom is to obfuscate, if not to mislead. In the factual context of this cause “appropriate” means “to acquire or otherwise exercise control over property other than real property.” V.T. C.A. Penal Code, § 31.01(5)(B). Thus, “actual taking” or whatever the manner of acquiring property is no longer a significant factor for attention. Similarly, acquiring or otherwise exercising control over property known to have been stolen by another can be accomplished without “receiving stolen property.” Berg v. State, supra. We should abandon outmoded language in favor of more precise terminology utilized by the Legislature in prescribing ingredients of the offense of theft.

And Casey v. State, supra, should be overruled, although this is not the occasion.

      .Section 31.03(a)(b)(l) and (2) provides:
      (a) A person commits [the] offense of [theft] if he unlawfully appropriates property with intent to deprive the owner of property.
      (b) appropriation of property is unlawful if:
      (1) it is without the owner’s effective consent; or
      (2) the property is stolen and the actor appropriates the property knowing it was stolen by another.
      Because this Court held in Casey v. State, 633 S.W.2d 885 (Tex.Cr.App.1982), that the State may not sustain a conviction for a violation of Section 31.03(b)(2), when it has only alleged a violation of Section 31.03(b)(1), it is unnecessary for us to consider or determine whether appellant, if he had been charged as a receiver of stolen property, could have been found guilty under the facts and circumstances of this case for that offense.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Although the jury was not made aware of the circumstances of the deputy sheriff's contact with appellant, nevertheless, the trial judge committed reversible error when he admitted, over objection, evidence that appellant had failed to give the deputy sheriff any explanation why he had had possession of the stolen-bulldozer. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Cuellar v. State, 613 S.W.2d 494 (Tex.Cr.App.1981).

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.


author: ONION, Presiding Judge.

text:
    Allan BECK, Appellant, v. The STATE of Texas, Appellee.
    No. 189-83.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 9, 1985.

      Scott E. Segall, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and David Clay Cowan, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This is an appeal from a conviction for the second-degree felony offense of escape under V.T.C.A., Penal Code, § 38.07(d). The punishment was assessed at 20 years’ imprisonment. On appeal the conviction was reversed by the El Paso Court of Appeals. Beck v. State, 647 S.W.2d 55 (Tex.Cr.App.1983). The court found the trial court erred in overruling appellant’s motion to set aside the indictment, finding a lack of specificity in the notice given in that the indictment failed to state the victim of appellant’s alleged use or threatened use of a deadly weapon in the course of his escape. We granted the State’s petition for discretionary review to determine the correctness of that decision.

V.T.C.A., Penal Code, § 38.07, provides:

“(a) A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.
“(b) Except as provided in Subsections (c) and (d) of this section, an offense under this section is a Class A misdemeanor.
“(c) An offense under this section is a felony of the third degree if the actor:
“(1) is under arrest for, charged with, or convicted of a felony; or
“(2) is confined in a penal institution.
“(d) An offense under this section is a felony of the second degree if the actor used or threatened to use a deadly weapon to effect his escape.”

The Practice Commentary to said § 38.07 provides:

“This section restates Penal Code arts. 353a, 353b, and 353d without significant change ....
“The offense is aggravated to a third-degree felony if the escapee was charged with or convicted of a felony or was confined in a penal institution and to a second-degree felony if he used or threatened to use a deadly weapon. These aggravating factors are roughly the same as prior law.”

The elements necessary to establish the offense of escape are:

“(1) a person (2) who has been arrested for, charged with, or convicted of an offense (3) when he knowingly and intentionally (4) escapes from custody [for a felony] (5) and the offense for which he was arrested, charged or convicted was a felony or (6) the custody was confinement in a penal institution, or (7) he used or threatened to use a deadly weapon.” See Branch’s 3rd Ed., Texas Annotated Penal Statutes, Vol. Ill, § 38.07, p. 126.

The second count of the indictment upon which the conviction was based reads:

“The Grand Jurors for the County of El Paso, State aforesaid, duly organized as such, at the January term, A.D. 1981, of the 120th Judicial District Court for such county upon their oaths in said court, present that Allen Beck, hereinafter styled Defendant, on or about the 22nd day of March One Thousand Nine Hundred and Eighty one and anterior to the presentment of this indictment, in the County of El Paso and State of Texas, did then and there unlawfully intentionally and knowingly escape from the custody of the Sheriff of El Paso County, Texas when he, the said Allen Beck, had been charged with Robbery (Enhanced), a felony, by using and threatening to use a deadly weapon, towit: a sharpened metal object, that in the manner of its use and intended use was capable of causing death and serious bodily injury.”

It is clear that the indictment charged a second-degree felony under Y.T.C.A., Penal Code, § 38.07(d). The indictment form tracks the various form books examined. See also and cf. Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976).

Appellant’s motion to “quash” the indictment stated in part:

“The indictment does not say against whom the ... ‘sharpened metal object that in its manner of use or intended use was capable of causing death and serious bodily injury ....’ was directed against, therefore denying Defendant notice, as is required by the Texas and United States Constitution (sic), and therefore would not fully act as double jeopardy as is required by the United States and the Texas constitution (sic).” (Emphasis supplied.)

When the motion was presented to the trial court, it was summarily overruled.

The El Paso Court of Appeals found the trial court erred. It did not find the instant indictment fundamentally defective or that any essential element was not alleged, but that it was defective in the sufficiency of notice as to the identity of the victim of the aggravating feature of the offense, a fact crucial to the appellant’s preparation of a defense to the main charge, where specification of the victim’s identity was properly sought by the motion to quash the indictment, challenging the notice afforded by the pleadings.

Article 21.11, V.A.C.C.P., provides in part:

“An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment;

Article 21.04, Y.A.G.C.P., provides:

“The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”

Thus an offense should be charged in plain and intelligible words with such certainty as to enable an accused to know what he will be called upon to defend against and to enable him to plead judgment that may be given as it is in bar of any further prosecution for the same offense. Moore v. State, 582 S.W.2d 333 (Tex.Cr.App.1976); Wilson v. State, 520 S.W.2d 377, 379 (Tex.Cr.App.1975); Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973); Burck v. State, 106 S.W.2d 709 (Tex.Cr.App.1937).

It must also be remembered that it is the intent of Article I, § 10 of the Texas Constitution that an accused in a particular case must be furnished information upon which he may prepare his defense, and this information must come from the face of the indictment. Moore v. State, supra; Voelkel v. State, 501 S.W.2d 313 (Tex.Cr.App.1973). See also McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979). It is, of course, not sufficient to say the accused knew with what offense he was charged, but the inquiry must be whether the charge in writing furnished that information in plain and intelligible language. Moore v. State, supra; Wilson v. State, supra; Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971).

An indictment should allege all that the State is required to prove. Article 21.03, Y.A.C.C.P.; Ex parte Charles, 582 S.W.2d 836 (Tex.Cr.App.1979); Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977). While all the essential elements of the offense must be alleged in the indictment, an indictment drafted in the language of the statute creating and defining an offense is ordinarily sufficient. Few v. State, 588 S.W.2d 578, 583 (Tex.Cr.App.1979). See also Ward v. State, 642 S.W.2d 782 (Tex.Cr.App.1982); Bollman v. State, 629 S.W.2d 54 (Tex.Cr.App.1982); Ex parte Holbrook, 609 S.W.2d 541 (Tex.Cr.App.1980); Boney v. State, 572 S.W.2d 529 (Tex.Cr.App.1978); Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976); Ellard v. State, 507 S.W.2d 198 (Tex.Cr.App.1954).

It is a rare exception when an indictment drawn in the language of the penal statute is legally insufficient to provide an accused with notice of the offense charged. Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1980); Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1978); Ames v. State, 499 S.W.2d 110 (Tex.Cr.App.1973); Lopez v. State, 494 S.W.2d 560 (Tex.Cr.App.1973). See also May v. State, 618 S.W.2d 333, 341 (Tex.Cr.App.1981); Zapalac v. State, 638 S.W.2d 546 (Tex.App.-Houston [1st] 1982).

Although, as seen, an indictment which tracks the language of the statute is ordinarily sufficient, this is not always sufficient where more particularity is necessary to meet the requirement of notice to the accused. Terry v. State, 471 S.W.2d 848 (Tex.Cr.App.1971). The State, however, is not required to plead evidentiary facts which are not essential to provide such notice. Slayton v. State, 633 S.W.2d 934 (Tex.App.-Ft. Worth-1982). Thus, unless a fact is essential for notice to the accused, the indictment need not plead the evidence relied upon by the State. Phillips v. State, supra; Smith v. State, 502 S.W.2d 133 (Tex.Cr.App.1973); Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966). However, a motion to set aside an indictment will be allowed if the facts sought are essential to give notice. Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981).

Escape is an offense under Title 8, Chapter 38 of the Penal Code and is an offense against public administration (obstructing government). It is not classified as an offense against the person or against property. The existence of a physically assaulted or injured victim is not an essential element of escape, nor an essential part of the aggravating feature under § 38.-07(d). A deadly weapon may be used, or displayed or exhibited, in a threatening manner in an escape or escape attempt without the necessity of any physical contact with, physical assault upon or injury to any individual. No one need suffer bodily injury or a physical assault in order for there to be a complete offense under § 38.07(d). In some escape cases certain individuals may be physically assaulted or injured by use of a deadly weapon and others may be merely threatened with the weapon. All of these individuals will have had the weapon “directed” against them. In a given case these individuals, possibly including law enforcement officers, jail inmates and citizens, could be numerous indeed. Appellant, by his motion to quash, sought the allegation in the indictment of all those against whom the deadly weapon was “directed.” In holding the motion to quash was improperly overruled, the Court of Appeals observed that the identity of the “assault victim is not an essential element of the indicted offense,” but in view of the facts developed at trial that one individual sustained actual bodily injury, the identity of the “victim of the aggravating offense” was a fact crucial to the appellant’s preparation of his defense to the “main charge.” It appears to be the holding of the Court of Appeals that appellant was entitled to the name of the party actually injured, the “victim,” as a matter of notice even though the indictment was not fundamentally defective. We do not agree.

In the instant case the facts reveal that on March 22, 1981, about 9:15 p.m. the appellant was being held in custody on the eighth floor of the El Paso County jail. He was in a holding cell or tank with other prisoners when a jail guard, Rocko Seandi-fio, came to get two inmates for telephone call privileges. As he opened the cell door, inmate Turner struck him, knocking him off balance, and inmate Ibanez threatened him with a 12 inch shank. Five men, including appellant Beck, all armed with knives, or shanks, left Scandifio in the cell with three other inmates.

Jose Quiroz, detention officer, was escorting a prisoner on the sixth floor of the jail when the elevator door opened and he was confronted by appellant Beck and three other men. The inmates grabbed Quiroz, hit him in the mouth and covered his mouth. He recognized inmate Reyes as one of those who grabbed him. Ibanez held a shank to Quiroz's left eye and inmate Ortiz was on the other side, and appellant Beck was in between Ibanez and Ortiz. All the men were armed, the appellant with a sharpened screw driver. In the scuffle that followed, Quiroz was stabbed in the left leg or thigh. He did not see who stabbed him, but surmised that from their positions the inmates other than appellant could not have stabbed him. After he was stabbed, Quiroz fell into the elevator and one of the inmates pushed the button. Qui-roz was hospitalized. Inmates Turner and Reyes were later found outside the jail and apprehended. Appellant and the other two inmates were found on the sunroof on the sixth floor of the jail. They were all armed and fought the officers who finally subdued them.

The court charged on the law of parties and authorized the jury to convict the appellant of escape as charged if they found he acted alone or with another or others as a party to the offense as the term “party” had been defined in the charge.

All that needed to be proven under § 38.07(d) was that the deadly weapon alleged was used or threatened to be used during the course of the escape. The information requested by the appellant in his motion to quash was essentially evidentia-ry, rather than being required for the purpose of notice and plea in bar.

The Court of Appeals relied upon King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980), a capital murder case where the conviction was reversed because the court failed to grant the motion to quash the indictment. The indictment alleged while in the course of committing and attempting to commit kidnapping, aggravated rape and robbery the defendant caused the death of Michael Underwood. See Y.T.C.A., Penal Code, § 19.03. The motion to quash sought the name of the complainant in the aggravating offenses alleged. The State argued on appeal that the indictment could be read that the alleged victim was also the victim of the kidnapping and robbery. The court held, however, this was not true as to the aggravated rape, and the name of the aggravated rape victim was critical to King’s defense, and to insure a bar to a subsequent prosecution for the same offense.

Whatever the continued viability of the holding of King in the context in which it was decided, it is not here applicable in this offense against public administration. Unlike King, there was no ultimate victim of the crime charged, and the criminal conduct constituting an aggravated feature of the offense need not necessarily have a victim or victims.

We conclude that the indictment in the instant case sufficiently alleged facts to enable appellant’s counsel to prepare his defense, and to insure his plea in bar. Thomas v. State, supra; Booker v. State, 523 S.W.2d 413 (Tex.Cr.App.1975). The trial court did not err in overruling the motion to quash the indictment.

The judgment of the Court of Appeals is reversed and remanded for consideration of appellant’s other grounds of error including a challenge to the sufficiency of the evidence to sustain the conviction.

      . V.T.C.A., Penal Code, § 1.07(a)(2), provides:
      "(2) ‘Suspect’ means a person whose criminal responsibility is in issue in a criminal action. Whenever the term ‘actor’ is used in this code, it means ‘suspect.’’’ (Acts 1977, 65th Leg., p. 2123, ch. 848, eff. Aug. 29, 1977). (Emphasis supplied.)

        . A deadly weapon is defined in V.T.C.A., Penal Code, § 1.07(a)(ll), as:
      “(A) * * *
      "(B) Anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”
      It has been said where the defendant used a deadly weapon to effect his escape, it must be proven that the alleged weapon was used in such a manner as to come within the statutory definition of a deadly weapon. Garcia v. State, 537 S.W.2d 930, 934 (Tex.Cr.App.1976).

      . As to the constituent elements of escape, see Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976); Henderson v. State, 600 S.W.2d 788 (Tex.Cr.App.1979); Ex parte Walling, 605 S.W.2d 621 (Tex.Cr.App.1980).

      . Appellant’s first ground of error states “the indictment is defective as the indictment does not state who was threatened with bodily injury while the Defendant was escaping.” The appellant then argues thereunder that the court erred in overruling his motion to quash. The overruled motion to quash or set aside the indictment was much broader than the ground of error. It sought the identity of all against whom the alleged deadly weapon had been “directed." The ground of error claimed the indictment defective because it did not state who was threatened with bodily injury. It is well settled that where the objection made in the trial court is not the same as that urged on appeal the complaint is not preserved for review. Carrillo v. State, 591 S.W.2d 876, 892 (Tex.Cr.App.1979); McIlveen v. State, 559 S.W.2d 815, 822 (Tex.Cr.App.1977); Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976). The Court of Appeals took no notice of the difference between the motion to quash and the ground of error on appeal. That court held that the indictment should have stated the identity of the victim of the bodily injury suffered during the alleged escape offense, and such identity was properly sought by the motion to quash.

      . An indictment is sufficiently certain if all the ingredients of the offense be as amply set out as it is necessary to prove them. Facts and incidents which do not constitute a necessary part of the offense need not be stated for the purpose of distinguishing it, but they may be proved by the defendant, so as to fix its identity, and thereby protect himself from a second prosecution. Horan v. State, 24 Tex. 161 (1859).