author: ELLIS, Justice.

text:
    Johnny LONG, Appellant, v. The STATE of Texas, Appellee.
    No. B14-83-725CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 1, 1984.

      Wallace N. Shaw, Freeport, for appellant.
    Jim Mapel, Angleton, for appellee.
    Before PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

This is an appeal from a judgment of conviction for the offense of injury to a child. Appellant, Johnny Long, entered a plea of not guilty. The jury found him guilty and assessed his punishment at 99 years in the Texas Department of Corrections. We affirm.

Appellant raises four grounds of error on appeal. In ground of error one appellant claims that the trial court erred by admitting into evidence the second written statement made by appellant to an Alvin policeman when such statement, a result of custodial interrogation, did not show on its face the warnings required by Tex.Code Crim.Pro.Ann. art. 38.22, § 2 (Vernon 1979) and because the record did not show that the required warnings were in fact given to appellant. Appellant in his second ground of error complains that the trial court committed reversible error by admitting gruesome photographs of the body of the child because the photographs were offered by the State solely to and did inflame the minds of the jury against appellant. Ground of error three asserts that the jury verdict is contrary to the law and the evidence because there is no admissible evidence or, in the alternative, there is insufficient admissible evidence in the record to establish beyond a reasonable doubt that appellant caused serious bodily injury to the child in the manner alleged in the indictment. In his fourth ground of error appellant argues that the trial court misdirected the jury as to the law on punishment by failing to instruct the jury that the court may require, as a condition of probation, that appellant serve a term in a penal institution not to exceed thirty days or one-third of his sentence, whichever is lesser.

The events leading to appellant’s arrest began on October 31, 1982, when Alvin policeman James Hoops responded to an ambulance request at the Jephson Street Apartments, in the city of Alvin, Texas. Officer Hoops arrived at the apartment before the ambulance arrived and saw appellant carrying Jeffery Wayne Stafford, his three year old stepson, down the stairs. Appellant’s wife, Theresa Long, followed the two down the stairs. After appellant put the child down on the ground, the officer examined the child and noted that the child appeared to be three or four years old, that there was a handprint on the child’s stomach, that his eyes were dilated, and that the child was unconscious but breathing. Appellant told Officer Hoops that the child had taken a drink from his beer, and then the toilet which had been cleaned with a cleaning fluid. Appellant claimed that the child later appeared to be drunk and, after weaving around the room, fell over a chair and hit the wall. The officer found the child’s injuries required immediate medical attention and decided to bring the child, his mother, and appellant to the hospital. While at the hospital Officer Hoops talked to Theresa Long, who told essentially the same facts as those given by appellant.

The child was transferred from Alvin Community Hospital to Hermann Hospital. Appellant and his wife told the doctors at Hermann Hospital essentially the same story as that told to Officer Hoops. Alvin Police Officers Mike Clawson and Geraldine Goudeau arrived at Hermann Hospital and asked appellant and his wife to come to the Alvin Police Department to give a statement. The Longs voluntarily went to the police station. Their statements of November 1, 1982, are consistent with their prior recitations of the facts.

On November 3, 1982, Jeffery Wayne Stafford’s life support systems were disconnected and the child was declared dead.

Just after Jeffery’s death, his younger brother was taken into protective custody by the Brazoria County Child Protective Services in Angleton. On November 4, 1982, in response to a request from Protective Services, Mrs. Long took winter clothing to her surviving child and during her visit expressed a desire to tell the truth about Jeffery’s death. The Alvin police were called; Chief Mike Jez and Officer Goudeau responded. Mrs. Long told the police officers that her prior statement was false, that she wished to tell the truth, and that she wanted protection from her husband. Chief Jez asked appellant to stop by the Alvin station in order to clarify some facts. Appellant and Mrs. Long went to the police station in their own car with a relative.

At the station both Longs were told they did not have to speak with the officers and that they were not under arrest. Mrs. Long told Officer Goudeau that appellant had thrown her son across the room into a rocking chair. The child hit the chair with such force that he bounced out of the chair and hit the wall. According to Mrs. Long’s statement, appellant, in shock, attempted to revive the child and then threatened to kill Mrs. Long if she should ever tell anyone what happened.

Appellant in his statement of November 4, 1982, described all his activities on October 31, 1982, including how he threw the child across the room, into a rocking chair and the child bounced off the chair, hitting his head on the wall. When the child attempted to crawl away, appellant recalled that he pushed the child down with his foot. Appellant left the station after he had finished his statement.

An arrest warrant for appellant was not issued until November 15, 1982, when the police received information that appellant was going to Louisiana to visit his father. On that day, appellant was arrested and charged with injury to a child.

On January 11, 1983, the Brazoria County Grand Jury returned a three count indictment: two counts for the murder of Jeffery Wayne Stafford and one count of injury to a child. Appellant was convicted by the jury, only of injury to a child.

In ground of error one, appellant argues that the trial court erred when it admitted the second written statement made by appellant to an Alvin police officer because the statement, a result of custodial interrogation, does not show on its face the required warnings of Tex.Code Crim.Pro. art. 38.22, § 2 (Vernon 1979). Appellant also alleges that the record does not show that the required warnings were given to appellant. Prior to trial, appellant filed a motion to suppress his confession because the confession was involuntary and coerced and the defendant was not given a warning of his constitutional rights. The judge waited until trial to rule on the motion and then held a Jackson v. Denno hearing. At the conclusion of the hearing, the court denied the motion to suppress appellant’s confession of November 4, 1982. The trial court found that appellant made the statement to the police knowingly, intelligently, freely, and voluntarily while he was not under arrest and without undue persuasion or coercion by any Alvin police officer.

There are four factors which have been deemed relevant in an inquiry by the court in determining whether appellant was in custody when the statement was made. Those significant factors are: probable cause to arrest, subjective intent of the police, focus of the investigation, subjective belief of the defendant. McCrory v. State, 643 S.W.2d 725 (Tex.Crim.App.1982). A review of the record shows that the court was justified in concluding that appellant was. not in custody when he gave his second statement. The officers did not have probable cause to arrest appellant on November 4, 1982. The officers suspected child abuse; however, they did not receive a copy of the autopsy report until December, 1982. Until December, the officers were unsure of the cause of the child’s death. Further, focus did not fix on appellant until the police learned on November 15, 1982, that appellant planned to go to Louisiana to see his father when the possibility of flight was added to his inculpatory statement. The officers testified at the Jackson v. Denno hearing that they never intended to arrest appellant at the time he gave his statement on November 4, 1982. Finally, the trial court was justified in concluding that appellant’s subjective belief was that he would not be detained if he attempted to leave. In fact, just after signing his statement, appellant was allowed to go alone to his apartment to recover two stools which he used in disciplining the children. Obviously, appellant was not in custody at the time he gave his second statement. Since appellant was not in custody when he gave his second statement, its admission is not controlled by Tex.Code Crim.Pro. art. 38.22, § 6 (Vernon 1979). Daniel v. State, 668 S.W.2d 390 (Tex.Crim.App.1984). Ground of error one is overruled.

In appellant’s second ground of error he claims that the trial court erred in admitting two photographs of the child’s body. He claims the photographs were offered by the State “solely to and did in fact inflame the minds of the jury” against appellant. One of the photographs, depicting the child connected to various medical equipment, was introduced during the testimony of Dr. Tom Cleary, one of the physicians who treated the child at Hermann Hospital. The other photograph was introduced during the testimony of Dr. Aurelio Espinóla, a medical examiner for Harris County. It was taken during the autopsy and showed the subdural hematoma believed to be the cause of death.

... [I]f a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome-or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible.

Martin v. State, 475 S.W.2d 265 (Tex.Crim.App.1972), appeal dismissed, 409 U.S. 1021, 93 S.Ct. 469, 34 L.Ed.2d 312 (1972).

The testimony of the treating physicians and the medical examiner describes the subject matter portrayed in the chai-lenged photographs in graphic detail. The photographs aided the jurors in interpreting the medical testimony. Where pictorial evidence will help the jury to understand verbal testimony, such as technical language used by a medical doctor in describing the injuries sustained by a victim of a crime, a trial judge does not abuse his discretion in admitting these photographs. Harris v. State, 661 S.W.2d 106 (Tex.Crim.App.1983).

We find that the photographs were competent, material, and relevant. Further, we find that the photographs were not offered solely to inflame the minds of the jury. Finally, a verbal description of the body would be admissible. Therefore, photographs depicting the body are admissible. Ground of error two is overruled.

In his third ground of error, appellant claims that the verdict is contrary to the law and the evidence because there is no admissible evidence. In the alternative, appellant argues that there is insufficient admissible evidence to establish beyond a reasonable doubt that appellant caused serious bodily injury to the deceased child. Specifically, appellant attacks the lack of evidence concerning the manner and means used. Appellant alleges that appellant’s wife was an accomplice to the offense. As such, her testimony needs to be corroborated. Tex. Code Crim.Pro. art. 38.14 (Vernon 1979). He further alleges that if appellant’s second written statement is excluded, there is no corroboration of the wife’s testimony.

Appellant’s wife was not an accomplice in the instant case.

“A witness is not deemed an accomplice witness because he or she knew of the crime but failed to disclose it or even concealed it ... The mere fact that the witness was present when the crime was committed does not compel the conclusion that she is an accomplice witness.”

Easter v. State, 536 S.W.2d 223 (Tex.Crim.App.1976). Theresa Long’s presence at the crime and her subsequent concealment of the crime does not make her an accomplice.

We find that the evidence including Theresa Long’s testimony, appellant’s statement, and the medical testimony is more than sufficient to sustain the conviction and the allegation in the indictment. Ground of error four is overruled.

In his fourth ground of error, appellant states that the trial court misdirected the jury as to the punishment by failing to instruct the jury that the trial court may require, as a probation condition, that appellant serve a term of imprisonment not to exceed thirty days or one-third of his sentence, whichever is lesser, as allowed in Tex.Code Crim.Pro. art. 42.12, § 6b(a) (Vernon Supp.1984).

We have held before that “an accused should be entitled to have all of the allowable statutory terms and conditions of probation enumerated in the court’s charge to the jury upon a proper objection or request.” Brass v. State, 643 S.W.2d 443 (Tex.App.-Houston [14th Dist.] 1982, pet. ref’d). In Brass we found the court’s failure to enumerate probation conditions in its charge was not reversible error. We held the error harmless in Brass because reversal on appeal for errors in the charge occurs only when the error was calculated to injure the rights of the accused or if it appears that the accused did not have a fair and impartial trial. Tex.Code Crim. Pro.Ann. art. 36.19 (Vernon 1981). The punishment in Brass and the punishment in the instant case exceeds the amount which would entitle appellant to probation. Therefore, appellant’s rights were not injured and the error is harmless. Appellant’s last ground of error is overruled.

Accordingly, we affirm the judgment of the trial court.


source: Caselaw Access Project

author: DRAUGHN, Justice.

license: Public Domain

text:
    Cornelius Dewitt ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. A14-84-219-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 1, 1984.
    Neil McCabe, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

Cornelius Dewitt Roberts appeals from a jury conviction of felony theft and presents three grounds of error: (1) insufficient evidence to support the conviction, (2) trial court error in allowing the State’s improper jury argument, and (3) trial court error in allowing an in-court identification based on an impermissibly suggestive pre-trial photographic array procedure. We sustain appellant’s first ground of error, reverse the conviction, and remand the case to the trial court with instructions to enter an order of acquittal.

Since appellant’s first ground of error involves sufficiency of the evidence, we must first review the relevant facts. Laurie Rice and her boyfriend, Michael Owens, were attending to her car’s overheated radiator at a service station one evening, when appellant drove up and parked his car next to them. Appellant and a companion got out of their car and offered to sell Rice and Owens cocaine. The couple refused appellant’s offer, replying that they already had some cocaine. Appellant then asked the couple to share their cocaine with him and his friend. When Rice and Owens refused, appellant and his partner announced that they were police officers and informed the couple that they were under arrest for possession of cocaine. As appellant asked the couple for names and addresses, his partner appeared to write the information down.

After approximately twenty minutes of this encounter, appellant returned to his car and stated as he drove off that he was going to get more officers to assist in the arrest. His companion remained and continued harassing the couple with the “arrest” charade. Approximately five minutes after appellant left, the companion snatched Rice’s purse and ran. Owens chased the man but failed to catch him.

Rice and Owens called the Houston Police Department and gave a full description of the men to two patrol officers. Two days later, the patrol officer who had interviewed Rice spotted appellant in the neighborhood where the offense occurred and placed him under arrest for the purse snatching. The officer also testified that he had seen appellant in that same neighborhood and had spoken with him earlier on the day of the offense.

Based on the foregoing evidence, the jury convicted appellant as a party to the purse snatching. The State asserted in its closing argument that a reasonable deduction from this evidence was that appellant and his companion, having failed at their primary objective of obtaining cocaine, instituted their back-up plan to procure money. The State argued that as part of a premeditated scheme, appellant must have driven around the corner, waited for his friend to come running with the purse, then drove the getaway car, preventing Owens from catching the purse snatcher.

The record is sadly lacking in evidence to support the State’s conclusion. The boyfriend, Michael Owens, could not be located at time of trial; therefore, the State produced no evidence as to what happened in his pursuit of the thief. There was no evidence that the purse snatcher ran in the same direction in which appellant had driven off. The police never apprehended the purse snatcher himself and never recovered the purse or its contents. Furthermore, the State never connected appellant with the purse snatcher or the contents of the purse after the offense occurred.

The State contends that it produced sufficient evidence of a common scheme between appellant and the purse snatcher to warrant the deduction that appellant drove the getaway car. The key facts emphasized by the State are (1) appellant’s impersonation of a police officer, (2) his parting comment that he was going to get more officers, (3) the theft of the purse about five minutes later, and (4) Owens’s failure to catch the purse snatcher. The prosecutor argues that this evidence, while circumstantial, was entirely sufficient to support the jury’s conviction of appellant as a party to the theft.

The standard for reviewing sufficiency of the evidence is the same for direct and circumstantial evidence: after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984) (en banc). In applying this standard to circumstantial evidence cases, the courts employ a process of elimination to determine whether the evidence excludes all other reasonable hypotheses of the appellant’s conduct. “[I]f the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding.” Denby v. State, 654 S.W.2d 457, 464 (Tex.Crim.App.1983). Therefore, we must determine in the instant case whether the evidence supports any reasonable hypothesis of appellant’s conduct other than the State’s theory that appellant as part of a planned scheme drove the getaway car for the purse snatcher.

Looking at the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could not have found appellant guilty beyond a reasonable doubt because the evidence equally supports the inference that appellant simply abandoned the scene with no intention of assisting in the theft of the purse. The thief could have escaped capture that evening by outrunning Mr. Owens rather than by the use of a getaway car.

It is clear that appellant and his companion participated in a scheme to harass Rice and Owens. It is clear that they impersonated police officers for purposes of intimidating the couple into handing over any cocaine they may have possessed. It is a reasonable conclusion that appellant’s parting comment of “going to get more officers” was intended to further harass or intimidate them. However, it cannot clearly be said that the purse snatching itself was an intentional back-up scheme planned by appellant and his partner. Without a scintilla of evidence as to what Mr. Owens saw in his pursuit of the thief and without any testimony linking appellant to either the purse snatcher or the contents of the purse after the commission of the offense, we cannot say that the only reasonable conclusion is that appellant drove the getaway car and was therefore a party to the theft. Consequently, we hold that a rational trier of fact could not have found appellant guilty of the offense charged beyond a reasonable doubt.

Because we find there was insufficient evidence to support the conviction, we need not discuss appellant’s other grounds of error. We reverse the conviction and remand the case with instructions to the trial court to enter an order of acquittal.


author: RALEIGH BROWN, Justice.

text:
    R.D. NEIDERT, Appellant, v. Bronc Hawkins DOZERS, Appellee.
    No. 11-83-265-CV.
    Court of Appeals of Texas, Eastland.
    Nov. 1, 1984.
    Jay Gibson, Fowler, Fowler & Gibson, Odessa, for appellant.

      Aubrey Roberts, Moore, Dickson, Roberts & Ratliff, Inc., Sweetwater, for appellee.
   RALEIGH BROWN, Justice.

This is a suit on a sworn account with a challenge to venue. Bronc Hawkins Doz-ers sued, in Nolan County, R.D. Neidert, a resident of Ector County, for services rendered in restoring a Nolan County oil and gas location to its original condition. Nei-dert’s motion to transfer venue was overruled and judgment for $6,197.50, attorney’s fees of $3,000, plus interest and cost of suit was awarded Bronc Hawkins Doz-ers. Neidert appeals. We affirm.

Neidert urges two points of error. First, he argues that the trial court erred in overruling his “plea of privilege.” Second, he contends that there is no evidence or the evidence was factually insufficient to prove that Bronc Hawkins’ attorney actually performed the services for which judgment was granted.

The venue challenge was heard on October 3, 1983, subsequent to the effective date of the amendment of TEX.REV.CIV. STAT.ANN. art. 1995 (Vernon Supp.1984). The venue statute now provides:

Section 1. All lawsuits, except as provided in Section 2 and 3 of this article, shall be brought in the county where the cause of action or a part thereof accrued or in the county of defendant’s residence if defendant is a natural person.

Neidert contends that there are no pleadings by Dozer to support venue in Nolan County. Dozers’ only pleading as to venue was its “controverting plea” filed before the effective date of the amendment of Article 1995. This pleading sought to maintain venue in Nolan County under Subdivision 5 of Article 1995. No amendment to this pleading was filed. However, Section 4 of TEX.REV.CIV.STAT.ANN. art. 1995 (Vernon Supp.1984) now provides:

******
(2) On appeal from the trial on the merits, if venue was improper it shall in no event be harmless error and shall be reversible error. In determining whether venue was or was not proper the appellate court shall consider the entire record, including the trial on the merits. (Emphasis ours)

Considering the entire record it is established that this is a suit to recover payment for labor performed in Nolan County. At least a part of the cause of action indisputably occurred in Nolan County and, therefore, was properly brought in such county under Section 1 of Article 1995, supra.

The first point of error is overruled.

In passing on a no evidence point, this court must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings and rejecting the evidence and inferences contrary thereto. Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex.1981). In passing on insufficient evidence points, we review all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The evidence with reference to attorney’s fees included the testimony of the county attorney of Nolan County who testified as to what a reasonable hourly fee would be in Nolan County. An exhibit was introduced without objection which listed hours reflecting times which an attorney for plaintiff allegedly worked on the instant case. Such exhibit was clearly hearsay. However, Rule 802, Texas Rules of Evidence, effective September 1, 1983, provides in part:

Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.

We hold, therefore, that the evidence was legally and factually sufficient to support the attorney’s fees award.

The second point of error is overruled,

The judgment is affirmed.

      . Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.


author: STEPHENS, Justice.

text:
    Jessie Lee TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-00819-CR.
    Court of Appeals of Texas, Dallas.
    Nov. 1, 1984.
    Richard Aguire, Lawrence B. Mitchell, Dallas, for appellant.

      Henry Wade, Dist. Atty., Ruth E. Pla-genhoef, Asst. Dist. Atty., Dallas, for ap-pellee.
    Before STEPHENS, VANCE and GUIL-LOT, JJ.
   STEPHENS, Justice.

Jessie Lee Turner, convicted by a jury of possession of a controlled substance with intent to deliver, and sentenced to life imprisonment under the recidivist statute, appeals. In his first ground of error, appellant asserts that the evidence was insufficient to convict him of the offense charged. We agree, and reverse appellant’s conviction and remand.

On August 6, 1982, at about 4:00 a.m., a police officer observed appellant and another individual leaning against a car in a location known as a high drug traffic area. As the officer approached the men, the appellant removed his hand from his pocket and dropped a small brown object. Appellant was placed under arrest, and the object recovered.

The object was a woman’s nylon stocking containing seventeen foil packages. Each foil package contained one Talwin tablet, which contains the controlled substance pentazocine; and fifteen of the packages also contained one PBZ tablet. When melted together and injected, these drugs produce a “heroin-like” effect, and packaging them in this manner is common when they are sold on the street. At the time of appellant’s arrest, the approximate “street value” of each foil package containing both tablets was ten dollars.

Both men were searched, but neither possessed any drug paraphernalia. The person who was with the appellant was not arrested. There is conflicting evidence regarding whether this person was intoxicated, but the officers testified appellant was not. After the appellant was arrested, an inventory revealed he had $249.26 in his possession.

Appellant asserts the State failed to introduce sufficient evidence to prove the essential element of intent to deliver. We agree. In passing upon the sufficiency of the evidence, we must review the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983). When viewed with the other facts in this case, the quantity of drugs (seventeen “hits”), the packaging, and the amount of money in appellant’s possession are not sufficient to support an inference that he had the requisite intent charged in the indictment. The facts are as consistent with the inference that appellant had just purchased the drugs for personal use, as they are with the inference that he possessed the drugs with the intent to deliver. Cf. Branch v. State, 599 S.W.2d 324 (Tex.Crim.App.1980). When two equally reasonable inferences exist, we cannot say that any trier of fact could have found the essential element of the offense beyond a reasonable doubt.

It is not sufficient for the State to argue that since the appellant did not prove that he was an addict or a user, he must have possessed the drugs with the intent to deliver. The State bears the entire burden of proof, and it is incumbent on the State to prove every element of the offense. Wright v. State, 603 S.W.2d 838 (Tex.Crim.App.1980). It is only after the State has carried its burden that a burden may be placed upon a defendant to prove by a preponderance of the credible evidence some fact relieving him of criminal liability. Charles v. State, 636 S.W.2d 5 (Tex.App.-Dallas 1982). The State failed to carry its burden of proving appellant’s intent to deliver; however, the evidence was sufficient to support a conviction for the lesser included offense of possession of a controlled substance.

The judgment of the trial court is reversed and an acquittal for the charge of possession with intent to deliver is ordered; the case is remanded for a new trial on the offense of possession of a controlled substance in accordance with Granger v. State, 605 S.W.2d 602 (Tex.Crim.App.1980); Ex Parte Harris, 600 S.W.2d 791 (Tex.Crim.App.1980); Garza v. State, 632 S.W.2d 823 (Tex.App.-Dallas 1982).


author: JUNELL, Justice.

text:
    KED-WICK CORPORATION d/b/a Doyle Stuckey Homes, Appellant, v. Joseph LEVINTON and Wife, Loretta Levinton and Revels Masonry & Brick Sales, Inc., Appellees.
    No. C14-83-237-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 8, 1984.

      Charles A. Nester, Nester & Horan, George M. Kirk, Jr., Houston, for appellant.
    John F. Schaffer, David M. Waterson, Jr., Adams & Adams, Houston, for appel-lees.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

JUNELL, Justice.

This appeal is from a judgment in favor of Joseph Levinton and wife, Loretta Le-vinton, appellees, against Ked-Wick Corporation, d/b/a Doyle Stuckey Homes (Stuck-ey/appellant) and Bert Chadwell. The judgment awarded the Levintons $45,300, plus $15,000 in attorney’s fees and additional attorney’s fees in the event of appeal. Suit had been brought by the Levintons under the Deceptive Trade Practiees-Con-sumer Protection Act-(DTPA), TEX.BUS. & COM. CODE ANN., § 17.41-17.63 (Vernon Supp.1984).

The Levintons bought a brick-veneer residence from appellant and Chadwell on September 20, 1977. They brought suit on June 21, 1979, alleging breach of express and implied warranties and misrepresentations concerning workmanship and materials. The Levintons’ principal complaint was that the Mexican brick used was defective and unsuitable for use as exterior brick-veneer on the house. There were other complaints of poor workmanship and defects that became apparent during the first year. Additional facts will be stated as necessary in the discussion of the various points of error.

Trial was to a jury. Special issues were answered in favor of the Levintons and against Stuckey and Chadwell. The jury found actual damages of $15,100. This was trebled by the trial court under the provisions of the DTPA. Judgment was rendered against Stuckey and Chadwell. Only Stuckey has appealed.

Appellant originally presented nine points of error. During oral arguments the appellant withdrew point nine. We will consider the first eight points.

In point of error number one appellant contends the trial court erred in trebling the damages because there was no proof of any written notice of complaint received by appellant from the Levintons after November 29,1978, the date on which the Greater Houston Home Builders Association Consumer Affairs Committee ruled the Levintons’ complaints non-warrantable.

The evidence is clear that the Levintons had given several written notices to Stuck-ey and Chadwell prior to the time suit was filed on June 21,1979. The Levintons gave written notice on the walk-through on closing day; on their “thirty-day list” of October 22, 1977; and in a subsequent related reminder, a letter Mrs. Levinton sent directly to Stuckey. The Levintons complied with the DTPA as it existed at the time the suit was filed. The DTPA then required that the consumer provide written notice of his complaint before suit was filed. Act of May 23, 1977, ch. 216, § 6, 1977 Tex.Gen. Laws 604, amended by Act of June 13, 1979, ch. 603, § 5, 1979 Tex.Gen. Laws 1330. The Act did not dictate that such notice be given at any specified time prior to the filing of suit, just that it be given before the commencement of such a suit. We overrule point one.

Appellant’s point of error number two is that the trial court’s submission of Special Issue No. 26 in its charge was error and that the court erred in refusing to submit two of appellant’s requested issues in lieu of said Special Issue No. 26.

Special Issue No. 26, as submitted in the court’s charge, and the jury’s answers thereto, were as follows:

What sum of money, if any, do you find from a preponderance of the evidence that [sic] would reasonably compensate the Plaintiffs, Joseph Levinton and wife, Loretta Levinton, as a result of any of the previous acts or omissions that were producing causes, if you have so found? Answer separately in dollars and cents, if any, with respect to each of the following items:
A. The replacement of the brick work on the house at 4907 Sabrina if such replacement was necessary.
Answer: $12,000.00
B. The repair or replacement of the vinyl in the kitchen, laundry and breakfast room, if such repair or replacement was necessary?
Answer: $0
C. The repair or replacement of the patio slab and driveway approach, if such repair or replacement was necessary?
Answer: $3,100.00

Appellant’s objections to Special Issue No. 26 were as follows:

Doyle Stuckey Homes would object to Special Issue No. 26 on the basis that it will tend to confuse the jury and it’s a comment on the weight of the evidence. Further, there’s no specific finding or request for a finding by the jury as to whether or not the particular items set out in paragraphs A, B and C were in fact defective. And in that regard we would tender to the court our special issue which we feel should have been admitted, which does inquire as to the specific items.

In connection with its objections to Special Issue No. 26 appellant requested submission of the following Special Issues:

SPECIAL ISSUE NO_
Do you find that any of those portions of the house and lot at 4907 Sabrina Drive, Houston, Texas as listed below were not constructed in a good and workmanlike manner?
Answer “We Do” or “We Do Not” in the appropriate spaces below.
A. Brick veneer? _
B. The vinyl in the kitchen and laundry room? _
C. The driveway skirt? _
D. The patio slab? _

If you have answered any portion of Special Issue No._“We Do” and only in that event, then answer:

SPECIAL ISSUE NO_
For each portion, if any, of Special Issue NO._which you have answered “We Do”, then, what sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence to be the reasonable and necessary cost or expense, if any, to repair and/or correct that portion of the house and lot at 4907 Sabrina Drive, Houston, Texas that was or were not constructed in a good workmanlike manner, if any?
Answer in dollars and cents, if any, in the appropriate spaces below.
A. Brick veneer? $
B. The vinyl in the kitchen' and laundry room? $
C. The driveway skirt? $
D. The patio slab? $

Appellant does not complain of the submission of Special Issue No. 1, which was as follows:

SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that the defendants Bert Chad-well and/or Doyle Stuckey Homes failed to construct the house at 4907 Sabrina in a good workmanlike manner?
Answer: “We Do” or “We Do Not.”
Jury’s Answer: “We Do.”

Special Issue No. 1 was a broad or general submission of the issue of failure to construct in a good workmanlike manner. The first of the two above quoted special issues requested by appellant and refused by the court was a more specific submission of particular parts of construction which allegedly had not been done in a good workmanlike manner. Tex.R.Civ.P. 277 provides as follows:

It shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly. It shall not be objectionable that a question is general or includes a combination of elements or issues.

The trial court’s discretion in submitting special issues to the jury is subject only to the requirement that the issues submitted must fairly submit disputed issues for determination. Chrysler Corporation v. McMorries, 657 S.W.2d 858 (Tex.Civ.App.-Amarillo 1988, no writ).

Special Issue No. 26 asked for separate findings of amounts of damages for specific areas of construction that had not been done in a good workmanlike manner. It probably would have been better practice either to submit Special Issue No. 1 more specifically, as requested by appellant in the first of his two requested issues, or to submit Special Issue No. 26 generally by asking the jury to find the amount of damages produced by appellant’s failure to construct in a good workmanlike manner. However, the issues as submitted appear sufficient to enable the jury to make an award of damages on proper grounds and correct principles of law. McMorries, 657 S.W.2d at 862. The refusal of appellant’s requested issues was not a clear abuse of discretion.

Appellant also argues under point of error number two that Special Issue No. 26, as submitted, constituted a comment on the weight of the evidence. Special Issue No. 26 asked what sum of money would compensate appellees “as a result of any of the previous acts or omissions that were producing causes if you have so found.” In asking about the repair or replacement of the individual items, each subpart of the issue stated “if such repair or replacement was • necessary.” The issue does not assume the truth of a material controverted fact issue. Looking at the charge as a whole, the challenged issue does not appear to constitute a comment on the weight of the evidence. See Three R. McDonald, Texas Civil Practice in District and County Courts § 12.08.2 (rev. 1983).

Finally, appellant argues under point of error number two that the repair of the patio and driveway should not have been combined in sub-part C to Special Issue No. 26. Appellant argues that where there are different areas of damage, based on disparate theories and proof, the damage issue should be submitted in a manner which allows the jury to make separate awards and the court to ascertain the area of damage to which such award relates. Oakes v. Guerra, 603 S.W.2d 371 (Tex.Civ.App.-Amarillo 1980, no writ). However, appellant did not object to Special Issue No. 26 on the ground that sub-part C improperly combined two distinct areas of damage. By failing to distinctly object to the charge on that basis, appellant has waived any error. Tex.R.Civ.P. 274; Butler v. Joseph’s Wine Shop, Inc., 633 S.W.2d 926, 931 (Tex.App.-Houston [14th Dist.] 1982, writ ref’d n.r.e.); Brown v. American Transfer & Storage Co., 601 S.W.2d 931 (Tex.1980). George Pharis Chevrolet, Inc. v. Polk, 661 S.W.2d 314 (Tex.App.-Houston [1st Dist.] 1983, no writ).

Finding no merit in any of the arguments made by appellant under point of error number two, it is overruled.

In point of error number six appellant contends the trial court erred in failing to disregard the jury’s answers to sub-parts A and C of Special Issue No. 26 because the evidence was insufficient to prove that the estimated costs of replacement or repair were reasonable in amount or that the replacement or repairs were necessary. In point of error number seven appellant contends that the $12,000 awarded to Levinton to rebrick the home was against such an overwhelming preponderance of the evidence as to be manifestly unjust and wrong. We find no merit in either of these points and see no necessity to detail the evidence supporting the jury’s findings on damages. Points of error number six and seven are overruled.

In point of error number eight appellant contends that the attorney’s fees awarded to the Levintons were excessive and that the court erred in failing to grant appellant’s motion to reduce same.

The jury found that the sum of $15,000 was a reasonable attorney’s fee for the services of the Levintons’ attorney. The trial court awarded that amount as attorney’s fees in the judgment. The testimony of the attorney for the Levintons concerning time spent, complexity of the issues in the case and the reasonable and customary charges for such services was entirely sufficient to sustain the amount awarded. Appellant did not even cross-examine the Le-vintons’ attorney concerning the attorney’s fees and offered no contradictory evidence. Point of error number eight is overruled.

In its third, fourth and fifth points of error appellant makes various complaints concerning the trial court’s refusal to award appellant judgment over against Revels Masonry and Brick Sales, Inc. Point of error number three is that the trial court erred in failing to award appellant indemnity against Revels for the damages for which appellant had been held liable by reason of the defective brick. Appellant had bought the brick from Revels and it was delivered to the job site sometime before April 12, 1977. Revels invoiced appellant on April 12, 1977 and was paid shortly thereafter. Appellant contends it is entitled to indemnity by reason of Section 17.-55A of the DTPA, which provides as follows:

A person against whom an action has been brought under this subchapter may seek contribution or indemnity from one who, under the statute law or at common law, may have liability for the damaging event of which the consumer complains. A person seeking indemnity as provided by this section may recover all sums that he is required to pay as a result of the action, his attorney’s fees reasonable in relation to the amount of work performed in maintaining his action for indemnity, and his costs.

TEX. BUS. & COM. CODE ANN. § 17.55A (Vernon Supp.1984). However, Section 17.55A was added to the DTPA in 1977 and did not become effective until May 23, 1977, after the sale and delivery of the brick by Revels to appellant at appellant’s job site. Therefore, Section 17.55A has no application to this case. Prior to the effective date of Section 17.55A appellant had no right of indemnity against Revels in the absence of negligence on the part of Revels. Volkswagen of America, Inc. v. Licht, 544 S.W.2d 442 (Tex.Civ.App.-El Paso 1976, no writ); Jones v. Tucker, 611 S.W.2d 456 (Tex.Civ.App.-Corpus Christi 1980, no writ). In this case appellant did not plead that Revels was negligent and no special issues concerning such negligence were submitted to the jury or requested by appellant. Appellant, therefore, was not entitled to indemnity against Revels and point of error number three is overruled.

Point of error number four is that the trial court erred in failing to award appellant judgment against Revels for breach of warranty. Under this point of error appellant contends that the jury’s answers to Special Issues Nos. 7, 8 and 26A entitled appellant to judgment against Revels for $12,000 for breach of warranty. The jury found in answer to Special Issue No. 7 that Revels had reason to know when it contracted to sell the bricks to appellant that appellant was relying on Revels to furnish suitable brick for exterior veneer, and in answer to Special Issue No. 8 that the brick supplied by Revels was not suitable for use as exterior veneer. In answer to Special Issue No. 26A the jury found that the sum of $12,000 was the cost of replacing the brick on the house. There is doubt whether these findings, standing alone, would entitle appellant to judgment against Revels for breach of warranty. However, we do not have to decide that question because there are other jury findings that support the trial court’s judgment denying appellant such recovery. In answer to Special Issues Nos. 17 through 23 the jury found that Bert Chadwell, appellant’s joint venturer in the construction of the house in question, was negligent in several respects, and that such negligence was a proximate cause of 100% of the damages sustained by the Levintons from the defects in the brick. The negligent acts or omissions found by the jury were that Chadwell negligently caused the brick to be placed on the home when he knew, or in the exercise of ordinary care should have known, that the bricks were not fit for the purposes for which they were intended. The jury also found that Chadwell failed to have certain tests run on the brick, failed to have any certification papers indicating the brick met those standards and failed to adequately inspect the brick to determine whether it was reasonably free of defects prior to laying the brick. Every negligent act or omission of Chadwell was found to be a proximate cause of damages sustained by the Levintons. Finally, in answer to Special Issue No. 23 the jury found that 100% of the damages pertaining to repair or replacement of the defective brick was attributable to the negligence of Chadwell.

In Signal Oil and Gas Co. v. Universal Oil Products, 572 S.W.2d 320 (Tex.1978) the supreme court held that in a cause of action for breach of an implied warranty the buyer may not recover consequential damages to the extent that the buyer’s negligence or fault was a concurring proximate cause of such damages. In Indust-Ri-Chem Laboratory, Inc. v. Par Pak Company, 602 S.W.2d 282 (Tex.Civ.App.-Dallas 1980, no writ) the court of civil appeals held the same rule would apply in a cause of action for a breach of an express warranty.

In the instant case the jury made findings in answer to Special Issues Nos. 7 and 8 of a breach of an implied warranty. There was evidence of an express warranty and breach thereof. The jury found an express warranty but failed to find a breach thereof. For our purposes the findings of implied warranty and its breach are sufficient. Under these findings appellant was not entitled to recover consequential damages from Revels. Appellant has not shown us and does not contend that there is any evidence in the record and findings by the jury of any amount of damages (other than consequential damages) recoverable by appellant from Revels under Section 2.714 of the Texas Business and Commerce Code. Therefore, the trial court did not err in failing to award appellant judgment against Revels for any amount of damages for breach of warranty. Point of error number four is overruled.

Point of error number five is that the trial court erred in failing to disregard the jury’s answers to Special Issues Nos. 20, 21 and 23 because (1) Chadwell had no legal duty to test the brick and (2) Chadwell’s contributory negligence cannot be inputed to appellant.

The jury’s findings complained of were that Chadwell was negligent in causing the bricks to be placed on the home at a time when he knew or should have known the bricks were not fit for the purpose for which they were intended and that 100% of the damages therefrom was attributable to Chadwell’s negligence.

Appellant argues that Chadwell had no legal duty to test the brick because (1) there was no appearance of any defect in the brick and (2) the brick was purchased by sample. We find no merit in this argument. There was evidence that it was common knowledge in the industry that a lot of defective brick was coming into the U.S. from Mexico. Thus, appellant had a duty to adequately inspect and, if reasonable, to test the brick before having it laid. The evidence also showed that with practically no expense very simple tests would have disclosed the defects in the brick. Appellant’s second contention, that the brick was purchased by sample, is not supported by the evidence except as to the color of the brick. There is no evidence that a sample brick was furnished by Revels and tested by appellant and that appellant relied on any representation that the brick to be furnished would conform in quality to that of the tested sample. Such lack of evidence distinguishes this case from Indust-Ri-Chem Laboratory, Inc. v. Par Pak Company, Inc., supra, relied on by appellant. The other cases cited by appellant, Furst-Edwards & Co. v. St. Louis S.W. Ry. Co., 146 S.W. 1024 (Tex.Civ.App.-Austin 1912, writ ref’d); and Chicago R I & G Ry. Co. v. Rhone, 105 S.W.2d 707 (Tex.Civ.App.-Fort Worth 1937, writ dism’d), do not support appellant’s argument. They merely state the general rule that negligence must be founded on some breach of duty imposed by statute or some rule of common law.

Appellant’s second contention under point of error number five, that Chadwell’s negligence cannot be imputed to appellant has no merit. Appellant argues that there is no evidence that appellant had any control over Chadwell and, absent such control, Chadwell’s negligence cannot be imputed to appellant. However, the evidence is undisputed that Stuckey and Chad-well were joint adventurers in the construction and sale of the house. Each of the parties to a joint adventure is legally responsible for the act of the other performed within the scope of the enterprise and resulting in injury to a third person. Martin v. Weaver, 161 S.W.2d 812 (Tex.Civ.App.-El Paso 1941, writ ref’d, w.o.m.); Tex-Jersey Oil Corporation v. Beck, 292 S.W.2d 803 (Tex.Civ.App.-Texarkana 1956), modified on other grounds, in Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162 (1957). There is no merit to appellant’s second contention under point of error number five. Point of error number five is overruled.

The judgment of the trial court is affirmed.


author: ROBERTSON, Justice. ELLIS, Justice,

text:
    Clifton Wayne FOUNTAIN, Appellant, v. The STATE of Texas, Appellee.
    Nos. B14-83-446CR, C14-83-447CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 15, 1984.
    Rehearing Denied Dec. 6, 1984.

      Larry Urquhart, Moorman, Tate, Moor-man & Urquhart, Brenham, for appellant.
    Charles J. Sebesta, Jr., Caldwell, for ap-pellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ROBERTSON, Justice.

Appellant was indicted for murder and attempted murder. Trial for both offenses was consolidated; the jury rejected his plea of not guilty and assessed punishment of forty years on the murder and fifteen years on the attempted murder. The issues on appeal are identical; the appeals have, therefore, been consolidated. Appellant challenges the sufficiency of the evidence, the court’s charge, the admissibility of evidence of extraneous offenses and the admissibility of a note written by the injured person in the attempted murder case. We affirm.

In his first ground of error, appellant challenges the sufficiency of the evidence to sustain the conviction. This is a circumstantial evidence case. IjVe must review the evidence and determine whether, viewed in the light most favorable to the jury’s verdict, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Hudson v. State, 675 S.W.2d 507 (Tex.Crim.App.1984). The apparent theory upon which this case was tried was that appellant intended to have his step-son killed in order to collect on a life insurance policy. Appellant did not testify and called only one witness in his behalf — an inmate in the Burleson County jail at the same time appellant and his co-defendant Douglas King-ery were confined. His testimony was in rebuttal to that of Jerry Redding, another jail inmate, who testified as a witness for the state concerning certain conversations between appellant and Kingery which he overheard. Except for possible conflicts in this testimony, there is no dispute in the evidence. In order to properly weigh the evidence, it is therefore necessary to detail all the facts and circumstances heard by the jury.

Appellant was the step-father of Russell Wayne Hodde, aged twenty-five and the complainant in the attempted murder case, Arthur Scott Hodde, aged twenty and John Hodde, aged seventeen. While the record is unclear as to the exact dates, the mother of the boys was divorced from her previous husband in 1978 and very soon thereafter she married appellant. In her divorce, Dorothy (the mother) received the home and some “40 or 50 acres” of land and was described as being in “very good financial condition.” Appellant was in the custom carpentry business. Dorothy “invested, underwrote” appellant’s business ventures and became “heavily in debt.” Testimony indicated she had sold all the land except 12 to 15 acres which was mortgaged. The financial condition of appellant and Dorothy was described as “very, very bad, critical”. Approximately three years before this offense, appellant and Dorothy had purchased life insurance on each of the three sons in the amount of $25,000 — each policy containing a double indemnity provision, with Dorothy as primary and appellant as secondary beneficiary. Appellant remarked to Russell on several occasions (the last being within the three week period prior to this offense) that he “better be careful, I’ve got that insurance.” (Appellant contended at trial — through cross-examination — these statements were made in jest. This was a fact for the jury to decide. We point it out only as another circumstance that “any rational trier of fact” could consider).

Approximately three weeks prior to the offense, appellant left Brenham, where he had been carpentering, because of no work. He went to Austin, taking with him two of his step-sons, Russell and Scott, and a friend of Russell’s, John David Howell (the deceased in the murder case). Scott returned to Brenham after about two weeks. To complete the work crew three additional employees were hired in Austin, one of whom was Douglas Kingery. Kingery, an ex-convict and living in a half-way house, was hired “about February 1” prior this offense on February 18. It appears King-ery was required to spend his nights at the halfway house, but appellant “went out” with him a couple of times when no one else was along.

On February 18, 1983 appellant set up plans whereby Kingery, Russell and Howell were to help him “make a drug deal.” Kingery, Russell and Howell were to precede appellant to the “Old River Bridge” on Highway 50 in Burleson County, where they would park and wait for appellant. Appellant was to follow by “about 45 minutes” and he would then make contact with a drug dealer. Appellant would then give them “further instructions about where he wanted them to set up to meet the connection when he came to deliver the 10 pounds of marijuana.” When he arrived, they would “take the marijuana,” tie up the dealer, and “Kingery was supposed to be there for our protection.” Kingery would be armed with the 12 gauge shotgun which appellant had shortly before “instructed” Russell and Howell to purchase. They would then either divide the marijuana or sell it and divide the proceeds.

After work, “5:30 or so” Russell and Howell serviced the van, picked up Kingery at the halfway house and headed for the pre-arranged meeting place. When they arrived, they parked the van off the road and down the embankment where they waited for “an hour and a half, two hours” before they heard appellant’s “GMC four wheel drive Jimmy” approaching. They walked up the embankment toward the highway, with Kingery carrying the shotgun. Appellant, alone in the vfehicle, continued driving across the bridge a short distance where he turned around and in “a minute or so” came back. In the words of Russell: “He started to pull over and when he saw the three of us standing there he jerked the vehicle back on the road and took off as fast as the vehicle would allow.” The three of them then went back down to the van “going to get in the van and go see what was wrong or what the problem was.” Just as Russell was about to enter the van “Kingery started shooting.” The first shot hit Russell in the face “taking the gums and 10 or 12 teeth.” He heard two more shots as he “went down.” Fighting to regain consciousness, he saw Kingery “beating John David (Howell) with the shotgun as a club.” Russell “gained enough strength and ran,” using a half t-shirt he had on as a compression bandage to stop the bleeding. He observed Kingery “cross the road twice and go over the bridge looking for me.” Russell testified that he “started to flag down help, but didn’t do so because I was afraid Sandy (appellant) was still in the area and he’d kill me.” As a result, he found a haystack and spent the night in it. The next morning he returned to his van and found Howell, dead, where Kingery was beating on him. He then flagged down a “sergeant” and, being unable to talk, wrote two notes to the sergeant, who “had me follow him to a house close by where the sheriff and an ambulance was called.” The broken shotgun, identified by Russell as the one he and Howell purchased for appellant, was later found in a nearby field.

The jury heard additional evidence concerning the following:

1. This was not the first time appellant had set up the proposed marijuana transaction. In the approximately three weeks to a month they had been in Austin, appellant had gotten Russell and Howell to twice previously go to the same general area in the middle of the night for the ostensible purpose of robbing the dealer of his marijuana. On the first occasion — some 20 days previously Russell and Howell proceeded in the van and appellant and his step-son, Scott, followed in the GMC “Jimmy.” When they arrived at the bridge, Scott was left with Russell and Howell while appellant “went to call his connection.” Appellant returned in 15 or 20 minutes, informed them no drugs were available and they all returned to Austin. The second time — some 10 days previously to the 18th — Russell and Howell proceeded in the van to a prearranged place “off of Highway 50” and appellant appeared alone about an hour later. For some reason Howell took the shotgun out of the van and gave it to appellant. They all remained there approximately an hour and a half, but the “drug connection” never appeared. Appellant turned the “Jimmy” around, pulled back up on the road and then “got out a broom and swept out the tracks of the Jimmy” but did not sweep the van tracks. He finally left and then Russell and Howell left.

2. Appellant had an “18 wheel” truck “underwritten” by Dorothy, that was used to haul produce. Several months before the shooting, appellant was behind several months in payments on the truck and he told Russell “he would like to have the truck stolen. That he wouldn’t make any money off of it, but at least they could recover the investment that they had put into it. And then he also at another time, he said, you know, he’d like to run it off a cliff also because of the same reason, he could collect the insurance on it.” The truck was repossessed after appellant was confined shortly after the commission of this offense.

3. Shortly after the conversation between appellant and Russell concerning the truck, appellant offered Russell $1,000 to burn their home. The first plan offered by appellant was for Russell “to take gas, pour it through the back of the house into the hallway, through the bedrooms and to make a big puddle of gas on the bed and to leave the gas can in the middle of it” because “he wanted to make it look like my father did it.” The reasons appellant gave for wanting the house burned was “to collect the insurance on it.” and then rebuild it himself. When Russell declined the offer, appellant approached him “the next day or the day after, I’m not real sure” with another plan. This time appellant wanted him to “poke a hole in the gas heater” hose and light it so that when the house burned it would look like it was caused by “a faulty heater hose.” Again Russell declined. Approximately two weeks later, while appellant was at home alone, the house burned and they collected about $80,-000 from the insurance company. The cause of the fire, as explained by appellant at that time, was that “he was putting verathane on the doors and he went into the garage to get something and when he came back inside the house was on fire.” Shortly after the fire, appellant told Russell “I’m a miracle in disguise.”

4. On Memorial Day week-end in 1982 after appellant and “the family” returned home from the lake, appellant “said he had numerous amounts of tools stolen from the home” for which he made a claim and received some $4,200 from the insurance company. Appellant’s step-son, Scott, testified that many of the tools listed as stolen were never owned by appellant and the listed tools which appellant did own “started showing up piece by piece and just started showing back up at the home.”

5. There had never been any disagreements between Kingery and Russell or Howell and they got along well. Specifically, on the day and evening of the offense, there were no disagreements or arguments between them. When they left Austin they purchased a “six pack” of beer, but King-ery did not drink any of it and he was not intoxicated or drugged at the time of the shootings.

6. Jerry Redding, an inmate of the Burle-son County jail at the same time appellant and Kingery were therein confined while awaiting trial, testified. He related how appellant and Kingery were confined in separate cells — each on opposite ends of the hallway. While he heard the two talking at various times, he specifically remembered one conversation one night when appellant “was really angry” with Kingery and told him “he had done a sloppy job and he had left the evidence there,” talking about the gun. Further, he testified appellant told Kingery that he would help him after he got out “when he beat his case;” that “he could raise $10,000 within 24 hours after he got out” and that he knew Kingery was going back to the pen because his parole had been revoked and that he “would send him money for the commissary and goods in TDC.” The witness further elaborated that appellant told Kingery “he was going to get some money from an insurance claim he had took out on the boy” and “he just told him to stay cool, he would help him all he could.”

Appellant vigorously argues this evidence is insufficient to sustain the conviction. In making his argument, he is, in effect, making the same argument to us that he made to the jury. However, the jury must have believed the evidence presented by the state, and our duty is to view the evidence in the light most favorable to the jury verdict and determine whether any rational trier of fact could have found the essential elements of crime beyond a reasonable doubt. When we do this, we are convinced that a rational trier of fact could have found that in an effort to extricate himself from the extreme financial bind he was in, appellant decided to kill his step-son and collect the insurance proceeds; that he arranged for Kingery to do the actual killing and that his part in the conspiracy was to secure the murder weapon and to lure his step-son to a desolate section of a rural county where the killing would occur. The testimony of Redding is, we think, of particular importance. While the statements he attributed to appellant do not amount to a confession, they amount to damning evidence of guilt, for if he were not guilty, why would he so speak of the attempted murder of his step-son? Based upon these facts, the appellant is guilty as a party to the offenses with which he was charged. Appellant’s first ground is overruled.

In his second ground of error appellant contends “[t]he charge to the jury ... is fundamentally defective because it fails to adequately apply the abstract law of parties to the facts of the case.” Appellant’s position is that the trial court failed to include the culpable mental state “acting with intent to promote or assist commission of the offense” in the application section of the charge.

A jury charge is fundamentally defective when it:

(1) authorizes conviction without proof of an allegation in the indictment which is required to be proved;
(2) authorizes conviction on a different theory than alleged in the indictment;
(3) authorizes conviction on the theory alleged in the indictment and on additional unalleged theories;
(4) authorizes conviction for conduct which is not an offense.

Jackson v. State, 591 S.W.2d 820, 824 (Tex.Crim.App.1980).

In applying the law to the facts, the trial court stated:

Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that on or about the 18th day of February, 1983, in the County of Burleson and State of Texas, Douglas Lloyd Kingery did then and there, intentionally and knowingly cause the death of an individual, John David Howell, by intentionally and knowingly shooting him with a shotgun and intentionally and knowingly beating him about the head with said shotgun, and if you further believe from the evidence beyond a reasonable doubt that on said date in said county and state, the Defendant, Clifton Wayne Fountain, as a party as that term is hereinbefore defined, solicited, encouraged, directed, aided or attempted to aid the said Douglas Lloyd Kingery in the foregoing action, you will find the said Clifton Wayne Fountain guilty of murder as charged in the indictment, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the Defendant and say by your verdict “Not Guilty.” (emphasis added).

(An identically worded charge, except applying the law of attempted murder to the facts, was given in the attempted murder case). Preceding this paragraph, the jury was given the following written instruction;

A person is criminally responsible ... if: acting with intent to promote or assist the commission of the offense, he solicits, encourages, aids or attempted to aid the other person to commit the offense. (emphasis added).

Viewing the charge as a whole, as we are required to do, and not being limited to the application paragraph alone, we find no fundamental error. “While the court should explicitly apply the law of parties to the facts of the case, in the absence of an objection or specifically requested charge no fundamental error is present.” Selvage v. State, 680 S.W.2d 17 (Tex.Crim.App.1984) citing Bilbrey v. State, 594 S.W.2d 754 (Tex.Crim.App.1980); Romo v. State, 568 S.W.2d 298 (Tex.Crim.App.1978). The second ground is overruled.

In his third ground of error, appellant contends the trial court erred in authorizing the jury to convict appellant on theories not supported by the evidence, arguing there was no evidence to authorize the jury charge that appellant “aided or attempted to aid” Kingery. We disagree. Based upon the evidence presented, the jury could have believed appellant aided Kingery by purchasing the shotgun and luring the deceased and the victim to the alleged drug rendevous. This is some evidence to authorize the portion of the charge objected to. Appellant’s third ground of error is overruled.

In his fourth and fifth grounds of error, appellant contends the trial court erred in admitting the testimony of Russell and Scott Hodde, respectively, “regarding extraneous offenses because this case does not fall into one of the exceptions to the general rule excluding evidence of extraneous offenses.” The evidence of which he complains is that (1) appellant had expressed a desire to either have stolen or wrecked the 18 wheel truck in order to either collect insurance or be released from the obligation to pay for it; (2) appellant offered $1,000 to Russell to burn their home for the purpose of collecting insurance and the fact the home was subsequently damaged by fire, under questionable circumstances to say the least, and some $80,000 in insurance proceeds were collected, and (3) the “theft” of tools for which some $4,200 in insurance proceeds was received and that many of the tools were never owned by appellant and others allegedly stolen began reappearing.

The general rule in Texas, for which citation of authority is unnecessary, is that an accused may not be tried for some collateral crime or for being a criminal generally. Equally well recognized, however, is that

“[Tjhese evidentiary principles, as most, must in some circumstances give way. For extraneous transactions constituting offenses shown to have been committed by the accused (note omitted) may become admissible upon a showing by the prosecution both that the transaction is relevant to a material issue in the case; and, the relevancy value of the evidence outweighs its inflammatory or prejudicial potential.” Williams v. State, 662 S.W.2d 344 (Tex.Crim.App.1983).

And, as stated by Judge McCormick therein, “[I]n a circumstantial evidence case, admissibility as part of the state’s direct evidence depends on the transaction’s relevance to a material issue which the state must prove.” Williams v. State, 662 S.W.2d 344 (Tex.Crim.App.1983).

Whether appellant was guilty as a party to these offenses depended upon circumstantial evidence. Absent the complained of evidence there was absolutely no reason for appellant to have desired the death of his step-son. While it is true that it is not necessary for the prosecution to prove a motive for murder, if a motive is proveable, it certainly is relevant to a material issue which the state must prove—the guilt of the accused. We find the complained of evidence to be extremely relevant evidence of appellant’s system, scheme or design, i.e.—his motive, and therefore proper. While this evidence did not directly prove appellant’s participation as a party to the offense, it was relevant to show appellant’s attitude toward collection of money on insurance claims; it placed in proper prospective the circumstances connecting appellant' to these offenses and made it more probable than not that appellant was a party to the instant offense. The trial court limited the jury’s consideration of the evidence to the purpose for which it was offered. Since the evidence is more probative than prejudicial, we overrule appellant’s fourth and fifth grounds of error.

In appellant’s sixth ground of error, he contends “[t]he trial court erred by admitting ... the testimony of Arthur Scott Hodde regarding an extraneous offense, because his knowledge of the transaction was based on hearsay.” The testimony about which appellant complains concerns the loss of the tools and the insurance recovery therefor. Scott Hodde, one of appellant’s step-sons, testified that he was personally familiar (appellant having told him at the time) of the “loss” of tools while the family was at the lake over Memorial Day weekend and the recovery from the insurance company of some $4,200. Appellant did not tell him and he was not personally familiar with the exact tools reported stolen. Either shortly before or during appellant’s trial, the witness went to the insurance company office and obtained a photocopy of the list of tools reported stolen by appellant, a photocopy of appellant’s statement concerning the loss and a photocopy of the check issued by the insurance company in payment of the claim. The witness testified that he recognized appellant’s handwriting and that both the list and the statement concerning the loss were in appellant’s handwriting. None of these exhibits were either offered in evidence before the jury nor were they referred to except to the extent that the witness was asked whether he “recently had an opportunity to observe a list of the tools that Sandy Fountain [appellant] indicated were missing;” to which he affirmatively answered. We do not agree that the witness’ “knowledge of the transaction was based on hearsay” as contended by appellant.

Hodde had first hand knowledge of the alleged theft reported by appellant and knew that appellant collected for the alleged theft from the insurance carrier. Hodde was very familiar with appellant’s tools and equipment. Hodde also recognized the handwritten document as being in the handwriting of appellant. We find that Hodde had sufficient first hand knowledge to testify. The facts in Vanderbilt v. State, 629 S.W.2d 709, 723-24 (Tex.Crim.App.1981), upon which appellant relies, are clearly distinguishable from the facts in the instant case. Appellant’s sixth ground of error is overruled.

Appellant’s last ground of error alleges the trial court erred in admitting into evidence a note written by Russell Hodde. We are faced with a record which leaves much to be desired. Appellant asserts in his brief that the complained of note (State’s Exhibit 2) written by the injured Russell while awaiting the arrival of the sheriff and the ambulance and reading:

Tell mom not to say anything to Sandy (my stepdad). He the one who did this to J.D. and me. Pis protect me he’s crazy,

was admitted before the jury. Appellee contends in its brief “State’s Exhibit 2 was never formally introduced into evidence or published to the jury.” A search of the record reveals that while Russell was testifying before the jury, he identified the note which had been marked as Exhibit 2, and the prosecutor offered the exhibit into evidence. Appellant’s counsel asked permission to “approach the bench;” there was an off-the-record discussion, and the court did not rule upon the offer. The next morning before the jury returned to the courtroom, appellant objected to the admission of State’s Exhibit 2 and the court announced “[T]he court is going to admit the note with the limiting instruction to the jury.” When the jury returned to the courtroom, the note was not again offered, nor did the judge ever rule upon the offer of evidence. In fact, a search of the record, even including the arguments to the jury, reveals that the note was never referred to again. An examination of the charge fails to disclose a limiting instruction which the court said it would give. The state, in its brief, asserts the limiting instruction was not given because the note was never exhibited to the jury. In this state of the record we cannot assume the note was ever received in evidence before the jury, and, accordingly, overrule appellant’s seventh ground.

The judgment is affirmed.

ELLIS, Justice,

dissenting.

Finding myself in disagreement with the other members of the panel, I would like to record my respectful dissent.

Clifton Wayne Fountain, appellant, appeals from two judgments of conviction, one for murder and the other for attempted murder. The jury assessed his punishment at forty (40) years on the murder and fifteen (15) years on the attempted murder.

Appellant challenges the sufficiency of the evidence to sustain the convictions.

Sufficiency of the evidence is measured by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): “Whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The preceding standard is employed in both direct and circumstantial evidence cases. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984); Denby v. State, 654 S.W.2d 457 (Tex.Crim.App.1983).

The indictment in the murder case alleged that appellant intentionally and knowingly caused the death of John David Howell by intentionally and knowingly shooting him with a shotgun and beating him about the head with said shotgun. The indictment in the attempted murder case alleged that the appellant intentionally shot Russell Wayne Hodde with a shotgun with the intent to commit the offense of murder.

The jury found appellant guilty as a party, in both cases, under Section 7.02(a)(2) of the Texas Penal Code, to the actual commission of the offenses by a person named Douglas Lloyd Kingery. Therefore, the evidence is sufficient to support the convictions only if a rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could have found that Douglas Lloyd Kingery committed the offense as alleged in the indictment, and that appellant, acting with intent to promote or assist the commission of the offenses, solicited, encouraged, directed, aided, or attempted to aid Douglas Lloyd Kingery to commit the offenses. Foster v. State, 635 S.W.2d 710 (Tex.Crim.App.1982); Tex.Penal Code Ann. § 7.02(a)(2) (Vernon 1974).

Reviewing the facts in these cases I find that appellant was found guilty on circumstantial evidence presented by the State. Therefore the issue is whether the circumstances presented by the evidence established beyond a reasonable doubt that appellant acting with intent to assist or promote the murder and attempted murder, committed an act that solicited, encouraged, directed, aided or attempted to aid Kingery in his commission of these offenses. Morrison v. State, 608 S.W.2d 233 (Tex.Crim.App.1980).

The evidence in the cases shows that appellant was not present at the scene of the crime. There was no evidence that appellant solicited, encouraged, or aided Kingery prior to the commission of the offense. Although the evidence was overwhelming that Kingery shot Russell Hodde with a shotgun and also shot and killed John David Howell, the State failed to present any evidence to show that when Kingery committed the offenses, he did so at appellant’s direction or due to his solicitation or encouragement. There is no evidence to establish that appellant had any knowledge of Kingery’s intention to commit the offenses before they occurred. The State attempted to establish prior knowledge through Jerry Redding’s testimony about conversations between appellant and Kingery while confined in jail after the offenses occurred. The State asked him leading questions to attempt to get him to testify that the conversations he overheard indicated in some way appellant’s prior knowledge that the offenses would be committed. However, Redding testified instead that he never heard appellant say anything to indicate any collusion with Kingery in committing the offenses.

For the conviction, the State principally relied on evidence it presented to show a motive for appellant to engage in a conspiracy with Kingery to commit the offenses. This motive was appellant’s financial bind and the coincidental existence of a $25,-000.00 life insurance policy on Russell. Surely, evidence of a potential financial benefit to appellant resulting from the death of Russell Hodde would not provide a basis to convict him of participating in the offense committed by Kingery.

Every other reasonable hypothesis except guilt of appellant is not excluded by the evidence in this case. Therefore, I conclude that the evidence is not sufficient to show that appellant committed some act with intent to promote or assist the commission of the attempted murder of Russell Hodde, or the murder of John David Howell by soliciting, encouraging, directing, aiding or attempting to aid Douglas Lloyd Kingery to commit these offenses. See Morrison v. State, supra; Earnhart v. State, 575 S.W.2d 551 (Tex.Crim.App.1979); Wygal v. State, 555 S.W.2d 465 (Tex.Crim.App.1977).

In cases where the evidence is insufficient to support a conviction, double jeopardy safeguards preclude further prosecution of the cause. 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).

I would reverse the convictions and remand the cases to the trial court with instructions to enter an order of acquittal.


text:
    Alfred Ray HALL, Appellant, v. The STATE of Texas, Appellee.
    No. B14-84-277-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 15, 1984.

      Jimmy James, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

This is an appeal from a judgment of conviction of the felony offense of burglary of a habitation. Appellant, Alfred Ray Hall, entered a plea of not guilty and the jury, finding the enhancement paragraph in the indictment true, assessed his punishment at thirty (30) years confinement in the Texas Department of Corrections.

Appellant raises two grounds of error on appeal. Appellant in his first ground of error argues that the evidence was insufficient, as a matter of law, to prove that appellant acted as a party in the commission of the alleged burglary of a habitation. In his second ground of error appellant asserts that he was denied his constitutionally guaranteed right to reasonably effective assistance of trial counsel, and such defiency prejudiced his defense which deprived him of a fair trial and produced an unjust result. We overrule both grounds of error and affirm.

On December 9, 1983, approximately at noon, Jesse Phillips saw a blue and white Buick back down a dead end street and stop next to the house of Robert Anglos, the complainant. Phillips testified that he resided at 3210 Brackenridge, a few houses down from the Anglos house. When he observed appellant in the blue and white Buick around the Anglos house, Phillips was visiting the home of another neighbor. Phillips testified that he had seen the car on a previous occasion parked at the apartment complex behind his house. Phillips saw the driver as the car went by. He recalled that he saw appellant get out of the car and open the trunk of the car. Then he saw two men come from the direction of the Anglos house carrying a television set and a microwave oven, which were put in the open trunk. While Phillips watched, he telephoned the Houston Police Department to report a burglary in progress at the Anglos’ home. Phillips again saw the driver as the car left the scene. At trial he identified appellant as the driver of the car. Phillips walked to the side of the Anglos’ home and saw that one of the windows had been broken. When Anglos arrived, Phillips informed him of the suspicious circumstances. When Anglos checked his house, he reported to Phillips that a microwave oven and a television set were missing. They both made a report to police. The next evening Phillips saw the blue and white Buick parked at a nearby apartment complex as he was walking in the neighborhood. He called the police to report his observation, but the police did not respond to his call. Phillips saw the Buick again on the day after the burglary at the filling station where Phillips worked. Phillips again called the police because appellant stayed at the station for such a long time. A policeman arrived within minutes of his call. Phillips testified that when the first police officer arrived, the officer asked appellant to walk to the rear of the car where they talked and later he searched appellant’s car. Other officers arrived and Phillips told them he saw appellant the day before at the Anglos house taking a television set and a microwave oven. Phillips saw appellant arrested and taken away in the patrol car.

The complainant, Robert Anglos, testified that when he returned to his house on December 9, 1983, he found the door unlocked, the kitchen window broken, and a brick on the kitchen floor. He stated that his microwave oven and television set were missing.

Houston Police Officer Gregory Hasel-berger testified that he answered Phillips’ call on December 10, 1983, at a filling station, where Phillips worked. As Haselber-ger approached, appellant tried to get into his car. Haselberger asked appellant to stop. After Haselberger asked appellant questions concerning his name and the car, the officer pointed his flashlight into the car. He saw a pistol grip in plain view on the floorboard at the bottom edge of the driver’s seat. He put appellant in the police car for safety purposes. Upon finding the pistol, the officer advised appellant that he was going to be arrested for unlawful possession of a weapon. Officer Haselber-ger did not investigate the Anglos burglary. Another police officer, Officer Death-er, talked with Phillips about the burglary. Deather did not testify at trial.

The jury found appellant guilty. At the punishment hearing, the State introduced a penitentiary packet showing appellant’s pri- or conviction of automobile theft. The jury found the enhancement allegation in the indictment true and assessed punishment at thirty (30) years in the Texas Department of Corrections.

In his first ground of error, appellant argues that there was insufficient evidence to show that appellant was a party to the alleged burglary.

When reviewing sufficiency of the evidence the test is the same for direct and circumstantial evidence: after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jackson v. State, 672 S.W.2d 801 (Tex.Crim.App.1984) (en banc). In applying this standard to circumstantial evidence eases, the courts employ a process of elimination to determine whether the evidence excludes all other reasonable hypotheses of the appellant’s conduct. “[I]f the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding.” Denby v. State, 654 S.W.2d 457 (Tex.Crim.App.1983). “In circumstantial evidence cases it is not necessary, however, that every fact point directly and independently to the defendant’s guilt. It is enough if the conclusion is warranted by the combined and cumulative forces of all the incriminating circumstances.” Flores v. State, 551 S.W.2d 364 (Tex.Crim.App.1977).

After a review of the record we find that many incriminating facts were present. Witness Phillips testified that appellant was present at the scene at the time of the burglary. Presence at the scene of the offense is insufficient to support a burglary conviction. However, presence at the scene is a circumstance tending to connect the defendant with the crime and it can be taken in conjunction with other facts to show that he is guilty. Thompson v. State, 563 S.W.2d 247 (Tex.Crim.App.1978). Phillips also testified that he saw appellant load property into the trunk of his car. He recalled that he saw a television set and a microwave oven being loaded into appellant’s trunk. These two items are exactly the same items which complainant Anglos reported as missing. Finally, appellant’s attempt to avoid the arresting officer is an additional incriminating circumstance. We find that the evidence presented in this case is sufficient to support appellant’s conviction.

In his second ground of error, appellant complains of ineffective assistance by trial counsel. Specifically, appellant claims that voir dire examination of prospective jurors, the State’s presentation of its evidence proving extraneous offenses without objection, and the final argument of defense counsel were areas of deficiencies.

With respect to the voir dire examination, appellant points us to several conversations appellant’s attorney had with potential jurors which, he claims, show a deficiency. Further, he claims that appellant’s attorney reinstated two jurors in order to comply with the limit of ten stikes and those two jurors had previous experiences as victims of crime. Appellant believes such action to be an example of ineffective assistance.

Appellant asserts that his representation was also ineffective because his trial attorney did not object to efforts by the State to prove extraneous offenses. Before the testimony of the arresting officer, a hearing at the bench was held concerning appellant’s motion to suppress a wristwatch and a hand gun which were recovered from appellant’s car. At that hearing the State declared its intention not to prove the recovery of the watch, but did state that testimony concerning the pistol would be elicited. Appellant’s asserts that his trial attorney never objected to the State’s plan. The trial judge never made a ruling on the motion to suppress. Further, appellant calls our attention to testimony vaguely referring to appellant’s involvement in a burglary. The alleged harmful dialogue between the prosecutor and arresting officer Haselberger consisted of the following:

Q. So did the two of you receive any other information about him in relation to a burglary that night? (emphasis ours)
A. Officer Deather did, yes, ma’am.
Q. Did you overhear part of that?
A. Yes, ma’am. I did.

Appellant’s attorney failed to object to this line of questioning. Appellant also claims ineffective assistance in a reference in the State’s final argument to recovery of a loaded pistol from appellant’s car.

The last area of alleged deficiency is the final argument of appellant’s attorney. Appellant claims that the “summation reflects the efforts of a person arguing a case in a broad, general and rambling manner that totally missed the point.”

The Supreme Court in Strickland v. Washington, - U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established a two prong test to determine if counsel’s assistance was so defective as to require reversal of a conviction. The court requires that:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

After a review of the totality of representation, we find that appellant has failed to demonstrate that the representation by his attorney amounted to ineffective assistance of counsel.

As the Court of Criminal Appeals Court did in Ingham v. State, 679 S.W.2d 503 (Tex.Crim.App.), we do not reach the Strickland test with respect to the voir dire examination and the final argument because we cannot find that appellant’s counsel was ineffective as that term had been construed to mean.

The right to effective assistance of counsel merely ensures the right to reasonably effective assistance. Ex Parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980). The constitutional right to counsel does not mean errorless counsel whose competency or accuracy of representation is to be judged by hindsight. Prior v. State, 540 S.W.2d 723 (Tex.Cr.App.1976). Indeed, judicial scrutiny of counsel’s performance must be highly deferential, and every effort made to eliminate the distorting effects of hindsight. Strickland, supra [104 S.Ct.] at 2065. An isolated failure to object to certain procedural mistakes or improper evidence does not constitute ineffective assistance of counsel. Weathersby v. State, 627 S.W.2d 729 (Tex.Cr.App.1982); Cude v. State, 588 S.W.2d 895 (Tex.Cr.App.1979).

Ingham v. State, 679 S.W.2d 503 (Tex.Crim.App.1984).

Appellant’s trial counsel conducted an extensive voir dire examination of the jury panel in an effort to discover those veniremen who could be fair and impartial. He repeatedly told the veniremen that they must presume that appellant is innocent until the State produced evidence to prove his guilt beyond a reasonable doubt.

With respect to the final argument, the record shows that after all the testimony was presented, appellant’s counsel argued that the State failed to prove its case beyond a reasonable doubt and that the prosecution’s witnesses had a reason to fabricate their stories. Although the jury argument was brief, we cannot conclude that it denied appellant effective assistance of counsel. Appellant has failed to demonstrate that trial counsel’s assistance and performance was so deficient that it would render his assistance ineffective in these two areas.

We now will consider the alleged deficient area concerning extraneous offenses. Appellant claims that the testimony of the arresting officer should have been objected to since it referred to a subsequent burglary. We find that the testimony was taken out of context. The officer testified to a conversation between another policeman, Officer Deather, and Phillips about the Anglos burglary, and not a subsequent burglary.

As for appellant’s contention regarding his trial attorney’s failure to object to the admission of testimony concerning the pistol recovered from appellant’s car on the night of the arrest and reference to the same pistol during the prosecutor’s final argument, we find that appellant has met the first part of the Strickland test. The trial attorney’s failure to object in both instances shows that the attorney’s performance was deficient. The State may prove circumstances surrounding an arrest made subsequent to the arrest. Jones v. State, 471 S.W.2d 413 (Tex.Crim.App.1971). However, there is an exception to the rule that the State is entitled to prove circumstances surrounding an arrest where the evidence is inherently prejudicial and has no relevance to any issue in the case. Hernandez v. State, 484 S.W.2d 754 (Tex.Crim.App.1972). The admission of any testimony concerning the pistol or a reference to it in the State’s final argument was prejudicial and it did not have any relevance to any of the issues in appellant’s trial. Appellant’s attorney failed to object and such failure was a mistake. However, we find that appellant has failed to meet the second part of the Strickland test. Specifically, appellant has failed to show, as Strickland requires, that his trial attorney’s errors were so serious as to deprive appellant of a fair trial, one with reliable results. In the absence of such proof, we must overrule appellant’s ground of error.

Accordingly, we affirm the judgment of the trial court.