author: CLINTON, Judge. MILLER, Judge,

text:
    Norman Lee BRADLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 899-83.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 27, 1985.

      Wally Bowman, Irving, for appellant.
    Henry Wade, Dist. Atty, Kathi Alyce Drew, R. K. Weaver, Andy Anderson and Mary Ludwick, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty. and Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON DISCRETIONARY REVIEW GRANTED ON MOTION OF THE COURT

CLINTON, Judge.

Appellant was prosecuted for the offense of murder and convicted by a jury of the “lesser included offense” of voluntary manslaughter. The jury also found two enhancement paragraphs to be true, and appellant’s sentence was assessed at mandatory life imprisonment pursuant to V.T. C.A. Penal Code, § 12.42(d), prior to amendment in 1983. The Dallas Court of Appeals affirmed the conviction in an unpublished opinion.

V.T.C.A. Penal Code, § 19.04 has been made to wear a number of different hats. The Legislature has designated voluntary manslaughter as an offense in its own right. Id., § 1.03(a), provides that “[cjonduct does not constitute an offense unless it is defined as an offense by stat-ute_” Since § 19.04(a) begins: “A person commits an offense ..it must be concluded that the Legislature intended the conduct set out therein to constitute an indictable offense, of which every element must be proven beyond a reasonable doubt to justify conviction. One of those elements is that the accused “caused the death under the immediate influence of sudden passion arising from an adequate cause.”

In the context of a prosecution for murder, however, the Court has taken the “sudden passion” element and transformed it so that it “is not an element of voluntary manslaughter, but is instead in the nature of a defense to murder that reduces that offense to voluntary manslaughter.” Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Cr.App.1978). Thus, “sudden passion” became a defensive issue, and voluntary manslaughter, sans the sudden passion “element,” became a lesser included offense of murder. This construction has given rise to a number of conceptual advantages, but not without some degree of “legal contortion.” See Daniel v. State, 668 S.W.2d 390 (Tex.Cr.App.1984) (Miller, J., concurring). We granted review on our own motion in this cause with a view to straightening out some of the contortion.

Specifically, we granted review to determine whether the trial court erred in instructing the jury on voluntary manslaughter in view of appellant’s timely objection at trial that the evidence did not raise it. We also granted review to address the related question of whether voluntary manslaughter is properly to be considered a lesser included offense of murder.

I.

We begin with the observation that the Court in Braudrick erred when it interpreted “sudden passion” to be “in the nature of a defense to murder ...” It has not been generally regarded a defense in this State. See Daniel v. State, 668 S.W.2d at 395 and 399-400 (Teague, J., and Miller, J., respectively concurring). And there is nothing in the penal code or in the code of criminal procedure remotely suggesting that the Legislature intended it to be one. While we understand the reasoning behind that construction, finding that in some circumstances voluntary manslaughter may be a lesser included offense to murder would have sufficed. Such is our holding today.

II.

The State contends that both of the questions set out ante have been addressed and resolved in Braudrick v. State, supra, and Paige v. State, 573 S.W.2d 16 (Tex.Cr.App.1978), and urges that we leave the holdings of those cases intact.

The Paige Court reasoned:

“In Braudrick v. State, [supra] it was held that acting ‘under the immediate influence of sudden passion arising from an adequate cause’ is not an element of voluntary manslaughter, but is instead in the nature of a defense to murder that reduces that offense to the lesser included offense of voluntary manslaughter. Therefore, the State need not prove such influence beyond a reasonable doubt to establish voluntary manslaughter.
Since the evidence here was sufficient to prove murder, the greater offense, it was necessarily sufficient to prove voluntary manslaughter, the lesser included offense. Cf. Neely v. State, 571 S.W.2d 926.”

From this language the State argues that, regardless of whether sudden passion is raised by the evidence, so long as the evidence supports a conviction for murder under V.T.C.A. Penal Code, § 19.02, a charge and conviction on the lesser included offense of voluntary manslaughter is allowable. This is so because proof of a greater offense will sustain a conviction for a lesser included offense. See also Daniel v. State, 668 S.W.2d 390 (Tex.Cr.App.1984).

The problem with the State’s argument is that it assumes that voluntary manslaughter may be considered a lesser included offense in every murder case. This assumption does not logically follow from the Court’s reasoning in Braudrick v. State, supra.

In Braudrick the Court stated:

“Sec. 19.02, supra, does not expressly require proof that the accused was not acting under the immediate influence, etc. This element is implied, and its proof is required, only where the evidence raises the issue that the accused was acting under such an influence. Thus, it can be seen that in a case where murder is charged and the statutory elements (as distinguished from the implied element) are proven by the State the jury should be charged on the statutory elements as stated in the facts alleged in the indictment. Only if the evidence raises the issue of voluntary manslaughter as a lesser included offense (see Art. 37.09(1), V.A.C.C.P.) must the implied element be charged.
The distinguishing feature between murder and voluntary manslaughter is not a fact that must be proven beyond a reasonable doubt to establish voluntary manslaughter, nor is it a fact that must be disproven by the State to establish murder in the absence of some evidence raising an issue as to that fact. If the issue is raised, then it must be disproven to establish murder, and a reasonable doubt on the issue requires acquittal on the murder charge and allows conviction only for voluntary manslaughter.”

572 S.W.2d at 710, 711. See also Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

Thus, when the evidence raises the issue of “sudden passion,” its negation becomes an “implied element” of murder. Sudden passion is, in essence, a circumstance surrounding the forbidden conduct, see Y.T.C.A. Penal Code, § 1.07(a)(13)(A), the existence of which the State must refute beyond a reasonable doubt.

Article 37.09(1), V.A.C.C.P., reads:

“An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]”

Should the evidence raise “sudden passion,” the absence thereof would constitute a “fact” which is engrafted upon the elements of murder under § 19.02, and must be established beyond a reasonable doubt before a murder conviction can be obtained. A charge on voluntary manslaughter becomes necessary to authorize a conviction in the event a jury finds the State has established all of the elements of § 19.02, but has failed to establish the “fact” that sudden passion was absent.

Until sudden passion is raised, however, its absence does not become an element of murder, implied or otherwise. See Braudrick v. State, supra. Hence, there is no “fact” the lack of which will reduce the offense to voluntary manslaughter pursuant to Article 37.09(1), supra. In short, unless there is some evidence of sudden passion in the case, voluntary manslaughter cannot be considered a lesser included offense of murder.

Whether we will treat voluntary manslaughter as a lesser included offense in the instant case, then, is contingent upon whether we find the evidence presented an issue as to sudden passion. We turn now to an examination of the evidence.

m.

The State sought to establish intentional murder. To this end statements were introduced which had been taken from appellant and his girlfriend, Diane Wallace, on the night of the shooting. Appellant proceeded on a theory of selfdefense. Wallace testified in his behalf. As she was the only eyewitness to the killing, we glean our summary of the facts from her testimony, noting inconsistencies with other evidence as we go.

Appellant lived in an apartment located in a house at 5500 Gaston Avenue, in Dallas. On the evening of January 16, 1982 appellant and Wallace were there. At about 9:00 o’clock the deceased, Daniel Lopez, arrived and proceeded to kick in the door to appellant’s apartment. Lopez entered the apartment, “slung” a knife across the room and demanded to be told the whereabouts of “Sheila.” Lopez threatened to kill appellant if he failed to comply. After also kicking in appellant’s bathroom door, Lopez crossed the hall to Billy McDowell’s apartment and broke in there. Appellant followed. Wallace listened as Lopez and appellant argued for four or five minutes and then she too crossed the hall. She found Lopez raiding the icebox, and appellant trying to prevent him. Appellant demanded that Lopez leave. Lopez then sat on the couch with the knife in his lap and again threatened to kill appellant. Appellant crossed back to his own apartment and obtained a sawed off shotgun. Wallace encountered appellant on his way back to McDowell’s apartment, where he told her, “Don’t worry, Diane, I’m not going to shoot him. I’m ... I’m just going to scare him so he’ll leave.”

Appellant then entered McDowell’s apartment and ordered Lopez to leave. Lopez got up from the couch and moved toward the door. Before reaching the door, however, Lopez turned and advanced toward appellant, “walking real fast,” and reaching toward his back pocket. Appellant backed up approximately five feet until he was against the wall. Lopez grabbed for the gun. Appellant pulled the trigger, shooting Lopez in the chest. After the shooting appellant appeared scared and told Wallace, “I didn’t mean to shoot him, but ... I had to. He might have killed one of us.” Appellant found the knife, with the blade open, on the couch.

There was no testimony from any source to indicate appellant became enraged, resentful or terrified immediately prior to the shooting. Had the evidence shown appellant in fact seemed enraged or terrified before acting, it would have been proper for the trial court to submit the issue to the jury to decide whether Lopez’ behavior constituted adequate provocation to produce such a degree of anger or terror, “viewed objectively through the eyes of an ordinary man.” Hobson v. State, 644 S.W.2d 473 (Tex.Cr.App.1983). The evidence simply does not show that such a passion did arise.

The fact that the evidence raises the issue of and the court charges on the law of selfdefense (as it did in this cause) will not entitle an objecting accused to a charge on voluntary manslaughter unless there is evidence that the killing occurred under the immediate influence of sudden passion arising from an adequate cause. Daniels v. State, 645 S.W.2d 459 (Tex.Cr.App.1983); Medlock v. State, 591 S.W.2d 485 (Tex.Cr.App.1979). By the same token, just because the evidence may raise an issue of self defense does not mean an accused must be subjected to a charge on voluntary manslaughter over objection, where the evidence does not even suggest he was overcome by a sudden passion and therefore acted while incapable of cool reflection. Unlike our holding in Humphries v. State, 615 S.W.2d 737 (Tex.Cr.App.1981), here we find no evidence to support the charge given by the court on voluntary manslaughter.

We therefore conclude that, on the facts of this case, voluntary manslaughter should not have been charged as a lesser included offense of murder over the objection of the accused. Thus, we cannot resort to the rule that proof of a greater offense will sustain a conviction for the lesser included offense to justify appellant’s conviction in this case. Furthermore, because voluntary manslaughter was not available to be charged as a lesser included offense to murder, the evidence must establish every element of § 19.04, as an offense in its own right. Because the evidence did not raise, much less prove beyond a reasonable doubt, the element of sudden passion in this case, appellant’s conviction must be reversed and a judgment of acquittal entered. 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).

IV.

We hasten to add that this disposition of the case hinges on the fact that appellant vociferously objected to the inclusion of the voluntary manslaughter charge. Failure to object to the charge when given on the ground that the evidence does not support it would signal acquiescence on the part of the accused in the trial court’s judgment that sudden passion was raised.

By invoking the benefit of the lesser included offense charge at trial in not objecting to its submission to the jury, an accused will be estopped from then complaining on appeal that the evidence failed to establish all the elements of the offense.

The judgment of the court of appeals is reversed. The cause is remanded to the trial court with instructions to enter a judgment of acquittal.

TEAGUE, CAMPBELL and WHITE, JJ., concur in result.

ONION, P.J., and W. C. DAVIS, J., dissent.

MILLER, Judge,

concurring.

While logic and legislative intent compel me to join the majority opinion, I must reiterate that the relationship between murder and voluntary manslaughter has been hopelessly muddled by the 1974 Penal Code. As I explained in my concurring opinion in Daniel v. State, 668 S.W.2d 390, at 399, the legislature, in a vain attempt to ensure the 1973 Penal Code was “dress right, dress”, abandoned the tried and true method of delineating murder and voluntary manslaughter that had evolved under the former penal code. Until such action is retracted, neither the bench nor bar nor, most importantly, the citizenry, will be served.

      . Hereinafter in this opinion we will use the phrase "sudden passion” to denote "under the immediate influence of sudden passion arising from an adequate cause.”
      V.T.C.A. Penal Code, § 19.04(a), (b) and (c) read:
      "(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.

      (b) 'Sudden passion’ means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
      (c) ‘Adequate cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.”
      (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . In the common law "the presence or absence of the heat of passion on sudden provocation ... has been ... the single most important factor in determining the degree of culpability attaching to an unlawful homicide.” Mullaney v. Wilbur, 421 U.S. 684, 696, 95 S.Ct. 1881, 1888, 44 L.Ed.2d 508 (1975). Texas substantially followed the common law until replacing it with the concept of murder without malice in Acts 1927, 40th Leg., ch. 274, p. 412, § 3b, codified as article 1237c, P.C. 1925, as amended. That development neither restored the law of manslaughter nor created two offenses — one of murder and one of murder without malice. Stephens v. State, 125 Tex.Cr.R. 397, 68 S.W.2d 181, 187 (1934). “[UJnder the law as it presently exists, there are no degrees of the crime of murder. Murder without malice is not a degree of that crime but is murder committed under the influence of sudden passion arising from adequate cause, for which the Legislature has limited the punishment.” Rodriguez v. State, 150 Tex.Cr.R. 526, 202 S.W.2d 940, 942 (1947). Of course, § 19.04 does reinstate voluntary manslaughter as an offense, and basically as it had first been defined in Old Code (1856) articles 594-597. See Practice Commentary to § 19.05. Then, Old Code article 631 expressly provided that murder included manslaughter, and codes of criminal procedure continued to do so, albeit in somewhat different terms, see article 695, C.C.P. 1925, and former article 37.-09, until rewritten as a conforming amendment to the new penal code. See Historical Note to Article 37.09, V.A.C.C.P., and also 4 V.T.C.A. Penal Code 370.

      3. Which concept we now expressly disapprove, see I. ante.

      . The indictment in this cause alleges murder under § 19.02(a)(1), which reads:
      "(a) A person commits an offense if he:
      (1) intentionally or knowingly causes the
      death of an individual[.]”

      . Evidently the Court found that the "escalating bar room brawl” reflected in the record was sufficient to raise the issue of sudden passion. 572 S.W.2d at 711, n. 1.

      . Should the State present a case such that a rational trier of fact could find the absence of sudden passion beyond a reasonable doubt, but the jury were nevertheless to convict the defendant of voluntary manslaughter, clearly the rule that proof of the greater offense will sustain a conviction for a lesser included offense would be applicable. Where the evidence fails to raise the issue of sudden passion, however, application of the rule defies logic, since without such evidence voluntary manslaughter cannot be treated as a lesser included offense of murder. See post.

      . To the extent that it may be read to hold that voluntary manslaughter will always constitute a lesser included offense of murder, Paige v. State, is overruled.

      . The statements of appellant and Wallace indicate they were already in the apartment across the hall, where the killing was to occur, when the deceased arrived.

      . Sheila had been married to Lopez at some point, but the evidence is unclear whether they were still married at the time of the offense.

      . "Gary" and "Sheila” had been staying in McDowell’s apartment, but were apparently out for the evening. McDowell testified that he and appellant had agreed to keep a watch over one another’s apartments.

      . The existence vel non of the knife was a contested issue in the case. Appellant originally told police that Lopez had wielded the knife but later claimed to have found it in Lopez’ coat, which appellant put on after the shooting. Appellant also claimed to have thrown the knife into a field before calling police from a 7-11 store to turn himself in. The knife was not recovered.
      An investigating officer testified that both appellant and Wallace told him they had seen no knife. Appellant's written statement contains no mention of a knife. Wallace’s statement concludes: "I did not see any type of weapon in Danny Lopez’s [sic] hand before he was shot.” She explained on the stand that this meant she had seen no knife in Lopez’ hand at the moment of the shooting. She denied telling police she had not seen Lopez with the knife on the night of the offense.

      .Wallace testified that Lopez was about a half foot from the gun when it fired. The State’s experts testified that tests indicated Lopez was approximately four to five feet from the gun at the time he was shot.

      . We are not unmindful that in so holding we place ourselves in "the ludicrous position of acquitting a defendant when there is sufficient evidence in the record that he is guilty of murder." Daniel v. State, supra, at 398 (Miller, J., concurring). We invite the Legislature to examine the possibility of enacting amendatory legislation which would make sudden passion an issue of punishment in a prosecution under § 19.02, to be submitted to the jury where raised and requested at the punishment phase of the trial.
      Alternatively, it would be constitutionally permissible to modify § 19.02 to make it an affirmative defense to murder that a defendant acted under the immediate influence of sudden passion arising from an adequate cause, and to place the burden of proof on the defendant to establish such an influence by a preponderance of the evidence, pursuant to V.T.C.A. Penal Code, § 2.04(d). Language could then be added to § 19.04 to the effect that the fact that death was caused under the immediate influence of sudden passion arising from an adequate cause constitutes a mitigating circumstance reducing murder to voluntary manslaughter and need not be proved in any prosecution initiated under § 19.04. See Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Such an amendment would make voluntary manslaughter cognizable and chargeable in any murder prosecution in which sudden passion was raised and requested by the defendant. It would also eliminate the need for the State to prove sudden passion should it choose to proceed on voluntary manslaughter where the evidence supports a conviction under § 19.02. A manslaughter conviction would be statutorily authorized even where no evidence was presented as to sudden passion.
      Either route would save this Court from having to undergo the legal gymnastics of attempting to force interpretation of § 19.04 as a lesser included offense of § 19.02 under the auspices of Article 37.09(1). This Court is powerless to legislate such a change, however. Under current statutes, a manslaughter conviction simply cannot be obtained absent evidence raising the issue of sudden passion.

      . Of course, any ‘benefit” to appellant in this cause must be purely hypothetical. Having been proven an habitual offender, he was destined to receive a life sentence regardless of whether convicted of murder or voluntary manslaughter.

      . This being the military command ordering troops in a formation to align themselves in perfectly neat little rows,


source: Caselaw Access Project

author: CLINTON, Judge.

license: Public Domain

text:
    Ex parte Leon RALEIGH aka Leonard Smith.
    No. 69407.
    Court of Criminal Appeals of Texas, En Banc.
    March 27, 1985.
    Rehearing Denied May 15, 1985.
    Leon Raleigh, pro se.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

This is an application for writ of habeas corpus pursuant to Article 11.07, V.A.C. C.P., seeking postconviction relief in case number 270227 in the 208th Judicial District Court of Harris County, a conviction for burglary of a building with punishment enhanced by prior convictions.

The conviction for burglary of a trailer in case number 238927 is based on an indictment applicant again contends is fundamentally defective. In pertinent part the indictment alleges that applicant

“with intent to commit theft, [did] break and enter a trailer owned by [named complainant] without the effective consent of the Complainant.”

Pointing out that our statutes do not specifically denounce an offense of “burglary of a trailer,” applicant calls attention to the fact that a burglary may be of a building or habitation under V.T.C.A. Penal Code, § 30.02; of a coin operated machine, § 30.03; or of a vehicle, § 30.04. Analogizing from the theory underlying such decisions as Ex parte Wilson, 588 S.W.2d 905 (Tex.Cr.App.1979), applicant argues that since “trailer” is not identified as an object of burglary in any statute prescribing an offense of burglary, and it was necessary for the State to prove the fact that the “trailer” alleged is either a building, habitation, coin operated machine or vehicle, “it was equally necessary for the State to allege this fact in the indictment,” Wilson, supra, at 908. Applicant refers to the indictment in Washington v. State, 603 S.W.2d 859 (Tex.Cr.App.1980), as an example of a proper way to allege an offense involving a “trailer,” viz: “with intent to commit theft, [did] break and enter a vehicle, namely: ONE (1) TRAILER, without the effective consent of the ... owner thereof ...”

For its part, the State responded to the application for writ of habeas corpus by alluding to what the evidence showed the alleged “trailer” actually is, citing Ellett v. State, 607 S.W.2d 545 (Tex.Cr.App.1980) and V.T.C.A. Penal Code, § 30.01(2). However, when testing a charging instrument for failure to allege an essential element of an offense, courts look only to the face of the instrument. Article 27.08, V.A.C.C.P., and American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

Given those opposing views and that neither side cites a case in point, and we have not been able to find one, the Court confronts an issue of first impression under the present penal code. We will find the indictment is not fundamentally defective.

As commonly understood and used, a trailer is a vehicle usually drawn by an automobile or light truck that is designed to serve wherever finally parked as a dwelling or place of business; it is also a vehicle designed to be pulled by a motor vehicle such as a tractor on a highway or in and around an industrial site. Webster’s New Collegiate Dictionary. For purposes of traffic regulations the Legislature has defined “trailer:”

“Every vehicle with or without motive power, other than a pole trailer, designed for carrying persons or property and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon the towing vehicle.”

Article 6701d, § 5(a), Y.A.C.S. “Trailer” is similarly defined in regulating registration of vehicles in Article 6675a-l(g), V.A.C.S., viz: “every vehicle designed or used to carry its load wholly on its own structure and to be drawn by a motor vehicle.”

In short, then, the meaning of “trailer” includes a specially designed kind of vehicle that may be pulled from place to place by a motor vehicle, and when it comes to rest may serve as dwelling or used to house a business or occupation.

According to V.T.C.A. Penal Code, § 30.-01(3), when prescribing offenses of burglary and criminal trespass, use of “vehicle” includes “any device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation, except such devices as are classified as ‘habitation.’ ” Conversely, “habitation” means “a structure or vehicle that is adapted for the overnight accommodation of persons,” id., § 30.01(1), and “building” means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use,” id., 30.01(2).

It is not only axiomatic but also statutorily declared that “[w]ords used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.” Article 21.17, V.A.C.C.P. Ross v. State, 594 S.W.2d 100, 101 (Tex.Cr.App.1980). As alleged in the indictment in question, “trailer” is a “habitation,” “building” or “vehicle” within the meaning of burglary offense prescribed in Chapter 30. Therefore, the indictment does allege an offense of burglary, sufficient to admit evidence as to the particular kind of trailer alleged to have been burglarized, and for that reason is not fundamentally defective.

Accordingly, applicant has not shown himself entitled to relief, and his prayer that the conviction for burglary of a trailer in case number 238927 be vacated and set aside is denied; concomitantly, his prayer that the conviction in case number 270227 be vacated and set aside and that he be remanded to custody of the Sheriff of Harris County to answer the latter indictment is also denied.

All requested relief is denied.

      . Used for enhancement were convictions in case number 238927 in the 208th Judicial District Court of Harris County. Applicant has attacked the prior conviction in case number 238927 previously. The indictment, judgment of conviction and sentence also included a count alleging the offense of theft, as well as burglary of a trailer. In Ex Parte Leon Flanagan Raleigh, Cause No. 66,247, delivered December 12, 1980, the Court granted relief from the conviction for theft in a unpublished opinion that broadly ordered "the judgment of conviction in Cause no. 238,927 ... set aside and the indictment ... dismissed.” But as applicant recognizes in the instant application, "there was no mention by the Court regarding the Burglary Count," so he is now renewing his challenge to that part of the judgment of conviction.

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

      . While it is difficult to conceive of a coin operated machine being a trailer, should the evidence show that the alleged "trailer" is such a machine within the contemplation of § 30.03, supra, a different problem would be presented — one we are not called on to resolve here.


author: McCORMICK, Judge.

text:
    David Allen ROEDER, Appellant, v. The STATE of Texas, Appellee.
    No. 68887.
    Court of Criminal Appeals of Texas, En Banc.
    April 3, 1985.
    Rehearings Denied May 15, 1985.

      Donald W. Rogers, Jr. (court appointed on appeal only), Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, Jack Freís and Ted Wilson, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

This is an appeal from a conviction for capital murder. After the jury answered the special issues in the affirmative, the trial judge sentenced appellant to death.

In his first ground of error, appellant argues that prospective juror Tammy Lynn Wilson was erroneously excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

The State confesses error in their appellate brief but argues that appellant did not preserve the error because defense counsel only voiced a general objection at the time that Wilson was excused:

“Unfortunately, the State is constrained to acknowledge that the prospective juror in this ground of error was excluded under an impermissibly broad concept of ‘affect’, having indicated a resolve to answer the punishment issues according to the evidence even if the result would be capital punishment and only indicating that she would take a harder look at the evidence because it was a capital ease. See, Pierson v. State, 614 S.W.2d 102, 107 (Tex.Crim.App.1980).” (State’s brief, page 2.)

Our review of the record shows that Wilson was erroneously excused. Throughout the voir dire, Wilson stated that, although knowing the mandatory penalty of death would affect her deliberations, she could answer the special issues affirmatively if the State proved their case beyond a reasonable doubt. The trial court sustained the State’s challenge for cause after the following exchange between the prosecutor and Wilson:

“Q. And when we are talking about looking at the evidence and answering the questions, because of the way you feel about it, you would have to look at the evidence harder or something. It would affect the way you looked at the evidence, would it not?
“A. Yes.
“MR. SHAVER: I would re-urge my challenge.
“THE COURT: All right, the challenge will be sustained. Thank you very much for your very fair and candid answers to the lawyers here — yes, sir?
“MR. HOUSE: We object to the Court’s sustaining the challenge.”

As the State freely admits, the case at bar is very similar to Pierson v. State, supra. In Pierson v. State, supra, we held that the mere fact that a prospective juror testified that he would “take a much harder look at the evidence, and look for more reasonable doubt” than he would otherwise is not sufficient reason to excuse a juror. This Court recognized that under Adams v. Texas, supra, no prospective juror should be excluded simply because he or she stated that his or her view of the facts or law would be “affected” by the possible infliction of the death penalty.

“Based on our own examination of the record, we have concluded that § 12.31(b) was applied in this case to exclude prospective jurors on grounds impermissible under Witherspoon and related cases. As employed here, the touchstone of the inquiry under § 12.31(b) was not whether putative jurors could and would follow their instructions and answer the posited questions in the affirmative if they honestly believed the evidence warranted it beyond reasonable doubt. Rather, the touchstone was whether the fact that the imposition of the death penalty would follow automatically from affirmative answers to the questions would have any effect at all on the jurors’ performance of their duties. Such a test could, and did, exclude jurors who stated that they would be ‘affected’ by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally. Others were excluded only because they were unable positively to state whether or not their deliberations would in any way be ‘affected.’ But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding these jurors were consequently insufficient under the Sixth and Fourteenth Amendments. Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.” Adams v. Texas, supra, 448 U.S. at 49, 100 S.Ct. at 2528. [footnotes omitted]

Clearly prospective juror Tammy Lynn Wilson was erroneously excused. See also: Hartfield v. State, 645 S.W.2d 436 (1983); Cuevas v. State, 641 S.W.2d 558 (Tex.Cr.App.1982).

We now turn to the State’s argument that appellant’s general objection was not sufficient to preserve error. The State asks that we reexamine this Court’s holding in Hartfield v. State, 645 S.W.2d 436 (Tex.Cr.App.1983).

In Hartfield v. State, supra, the prospective juror was excused in violation of Adams v. Texas, supra. In its motion for rehearing, the State argued that since the defense only told the court they excepted to the exclusion of the prospective juror without specifying the grounds for that exception error was not preserved. In response to this argument the Court wrote:

“... We do not agree. It must be kept in mind that the voir dire examination in question took place in June of 1977, three full years prior to the June 1980 decision in Adams, supra. Therefore, at the time Hlozek was excused, Sec. 12.31(b) was considered constitutional even to the extent that it allowed exclusion of prospective jurors on a broader ground than Witherspoon, supra, and consequently there was no reason for appellant’s counsel to strenuously attempt to preserve his error. We find that appellant did not waive his error.” Hartfield v. State, 645 S.W.2d at 441.

We decline to reexamine our holding in Hartfield for two reasons. First, we believe the reasoning therein to be sound and definitely applicable to the instant case in which voir dire of the jury panel began on August 14,1978, clearly prior to the United States Supreme Court’s decision in Adams v. Texas, supra. Secondly, the primary purpose of the specific objection rule is to ensure that the trial court and opposing counsel are informed of the ground of objection so that first, the trial judge can rule on the objection, and second, opposing counsel may be afforded an opportunity to remove the objection or in some way cure the alleged error. Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977).

“In accordance with these policies, a number of exceptions to the general rule that a party cannot complain on appeal to the overruling of a general objection or an imprecise specific objection have been created. 1 McCormick and Ray, Evidence, Sec. 25, p. 25 (2d ed.1956). Thus, where the correct ground of exclusion was obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection. McCormick & Ray, supra.” Zillender v. State, supra, at 517.

It is clear from the record in the instant case that counsel for both the State and the defense and the trial judge knew the nature of appellant’s objection. After the State challenged Ms. Wilson for cause, defense counsel took her on voir dire in an attempt to rehabilitate her. At the conclusion of defense counsel’s questioning, the following exchange occurred:

“THE COURT: Do you have other questions, then, Mr. Shaver?
“MR. SHAVER: No, Judge, it is my position that my challenge is still good, based upon her answers that it would affect her deliberations of issues of fact. I will be happy to show the Court some citations.
“THE COURT: All right, do you have other questions, then Mr. House on the matter of whether or not it would affect her deliberations?
“MR. HOUSE: I have one question.”

Thereupon, both defense counsel and the prosecutor interposed several more questions to Ms. Wilson as to what she meant when she used the phrase “affecting her deliberations.” At the conclusion of this round of questioning, the State’s challenge for cause was sustained, followed by appellant’s general objection. Clearly, everyone present was aware why Ms. Wilson was being challenged for cause and why appellant was objecting to the sustaining of that challenge. See also, Turner v. State, 635 S.W.2d 734 (Tex.Cr.App.1982) (where defendant’s general objection was sufficient to preserve error.) To hold now that appellant did not preserve error would be unfair to the appellant, especially in light of the permanent nature of appellant’s assessed punishment. We hold that error was preserved and sustain appellant’s ground of error.

Among his other grounds of error, appellant alleges that his written confession and oral confession and the evidence recovered as a result thereof were illegally obtained. We do not consider these grounds of error since we have already found reversible error. In connection therewith, however, we must address appellant’s twelfth ground of error in which he argues that eliminating this illegally obtained evidence the other evidence is insufficient to support his conviction. Appellant does not maintain that all the evidence, proper and improper, is insufficient to support the conviction. See Porier v. State, 662 S.W.2d 602, 606 (Tex.Cr.App.1984). Instead, like the appellant in Collins v. State, 602 S.W.2d 537 (Tex.Cr.App.1980):

“... appellant ... tries to bootstrap himself into an acquittal by arguing first that a piece of evidence was admitted erroneously, and then that the erroneously admitted evidence must be discounted in considering the sufficiency of the evidence.” 602 S.W.2d at 539 (Concurring opinion).

As a result, we must refuse to consider the sufficiency of the evidence under such circumstances and reverse and remand. Porier v. State, supra. See also, Adams v. State, 639 S.W.2d 942 (Tex.Cr.App.1982), and Fearance v. State, 620 S.W.2d 577 (Tex.Cr.App.1980).

The judgment is reversed and the cause remanded.


author: W.C. DAVIS, Judge.

text:
    Lee Roy BARROW, Appellant, v. The STATE of Texas, Appellee.
    No. 69042.
    Court of Criminal Appeals of Texas, En Banc.
    April 10, 1985.
    Rehearing Denied May 1, 1985.
    David L. Botsford, court appointed on appeal only, Austin, for appellant.
    Ronald Earle, Dist. Atty., and Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W.C. DAVIS, Judge.

Appellant was convicted of capital murder. Upon the jury’s affirmative findings to the punishment issues, see Art. 37.-071(b), V.A.C.C.P., the court assessed punishment at death.

Appellant contends that insufficient evidence was adduced to show that the victim was killed in the course of a robbery or burglary as alleged in the indictment. He bases his contention upon the failure of appellant’s confession to recite those underlying circumstances.

Appellant did state in his confession that, after killing the victim, he took from the victim’s residence a handgun. The evidence further showed that appellant thoroughly ransacked the victim’s residence, and that, armed with the gun, he shortly thereafter robbed the cashier at a convenience store.

Whether or not appellant was seeking money for the reason posited by the State—a massage for which he had earlier been unable to pay—the jury was justified in finding the murder to have been committed in the course of the underlying offense.

Appellant also contends that insufficient evidence was adduced to support the jury’s finding of a probability that he would commit criminal acts of violence that would constitute a continuing threat to society.

The evidence, including appellant’s confessions, shows that appellant participated in a murder in Galveston, in connection with the theft of the victim’s automobile, shortly before driving to Austin and, having been told his funds ($7) were insufficient for a massage which he desired (or into the desire for which, to accept the defense viewpoint, he had been enticed), he proceeded to the home of an elderly and wheelchair-bound person known to him, killed him by striking him with multiple blows, ransacked his house, took a handgun, and with it committed a robbery. After his arrest, appellant made an attempt to escape, threatening to harm a jailer (although not actually doing so) in the process.

Appellant’s own witness, who testified that appellant’s behavior was delusional, also testified to a continuous history of assaultive behavior dating back to 1974.

The ground of error is overruled.

Appellant further contends the court erred in overruling his challenge for cause, based upon the refusal to consider the entire range of punishment for the lesser included offense of murder, to veni-remember Flieller.

During the State’s voir dire examination, Flieller professed a willingness to consider the entire range of punishment for murder, for 5 years, probated, to life imprisonment. During appellant’s voir dire, however, Fliel-ler made it clear that the willingness had been based upon a misunderstanding of the meaning of “probation”:

All right. Now, let’s assume that hypothetical. You’re sitting on the jury. But for some reason because the State fails to prove beyond a reasonable doubt the element of burglary or element of robbery in that capital murder indictment and that as a result of your jury deliberation you find a defendant guilty of first-degree murder.
All right. Let’s assume that you have found someone guilty under those types of circumstances of first-degree murder.
All right. Now, the range of punishment, as has been told, is five to 99 years or life. Of course, this is the only time we get to talk to you, ma’am; and you seem to be a very impressive and very sincere young lady. But I must very carefully ask you: Can you conceive of a set of circumstances where if someone is found guilty of first-degree murder, intentionally and knowingly causing the death of an individual, that you could conceive of a set of facts and circumstances where you could give that man five years probation?

A. No, sir.

MR. GOTCHER: We have no further questions, Your Honor. We have a question of law. I might do this:

Q. (By Mr. Gotcher) With your answer, no, you could not give five years probation, you understand we’re not tallying about this case or any other, but as a general proposition. Okay? It’s not trying to be a trap question. This is from your heart and there’s nothing going to change your mind about this. This is your own personal view, is it not, that you could not conceive of any facts or circumstances where you could, in fact, give five years probation for the offense of intentionally and knowingly causing the death of an individual, first-degree murder?

A. Well, maybe I’m not understanding what the—

Q. All right. Let me go over it.

A. —five years probation, what that—

Q. Yes.

A. —exactly means.

Q. Well, the legislature provides a full range of punishment.

A. Yes.

Q. From 99, life, any term of years. But it does also include if the sentence is under 10 years that the legislature has provided under certain circumstances that if a man is found guilty or a person is found guilty of intentional first-degree murder that the jury must—

MR. NELSON: I’m going to object to the term. There is no such term in Texas law.
MR. GOTCHER: Term of what?
MR. NELSON: First-degree murder.
THE COURT: Sustain the objection to that question.
MR. GOTCHER: Well, let me rephrase—
THE COURT: If the question is asked for the purposes which Mr. Gotcher stated, I sustain the objection.
MR. GOTCHER: All right. Let me rephrase it. Maybe I can get it that way, and I won’t—

Q. (By Mr. Gotcher) And don’t answer me until Mr. Nelson has a chance to object.

Texas provides that there is murder in such a way that the punishment for that murder is first degree. It’s a felony of the first degree. We’re playing with little words but it still means the same to me.
Now, let’s assume. Can you imagine a set of facts and circumstances in a murder case where the punishment is first degree felony, can you imagine in your mind, Ms. Flieller, a set of circumstances where you — not talking about this case or any other — but as a fact and circumstance where you could give a minimum of five years probation for intentionally, knowingly causing the death of an individual?

I’m still stuck on the five years probation. Does that mean the person goes to jail?

No, that’s five years probated. That sentence — that’s found guilty of murder and you sentenced him to five years probation, out on the street under supervision. c©

Okay. He has been proved 'guilty?

Yes.

And he is given — he’s guilty of murder and he’s given five years of probation straight out of the courtroom?

Would you consider it?

I don’t think so. >

All right. Now, again I’m going to ask you that answer And that’s a truthful answer. A lot of people feel that way. .©

All I’m asking you is: That is from your heart, that’s your own conscience and that’s your own belief. Nobody could change that mind, could they? Nobody could change your mind?

Well, does all this other— <ri

You understand now— ©“

THE COURT: The witness didn’t have any opportunity to finish answering the question. She may.
MS. FLIELLER: I’m very sorry but, you know—

(By Mr. Gotcher) And if I’m confusing you, I’m sorry. O’

A. That’s okay. What I’m trying to figure out is if a person is — how does the insanity thing come in? If he is—

Q. We’re not talking about insanity.

A. Okay.

Q. You’ve already found the man guilty. We’ve given them—

A. Okay.

Q. —a set of facts where you have already made that determination.

A. Okay.

Q. The man is guilty.

A. Okay.

Q. You have found him guilty.

A. Okay.

Q. And you go back into that second phase of the trial.

A. Right.

Q. All you do then is punishment, whatever, after all the evidence, whatever it is. Okay. Now, assuming you’re there.

A. Right.

Q. I must ask you again: Can you conceive of a set of facts and circumstances Where you would give someone that you have found guilty of intentionally and knowingly causing their death, give them five years probation or consider five years probation?

A. No, I can’t.

No attempt was made by the State to rehabilitate Flieller.

Flieller’s answers demonstrate an inability to consider the full range of punishment for the lesser included offense of murder, and constitute a ground for exclusion. See Hernandez v. State, 643 S.W.2d 397, 402 (Tex.Cr.App.1983).

The record shows that after appellant’s challenge for cause was overruled, appellant challenged Flieller peremptorily, used all of his allotted peremptory challenges, requested and was denied additional challenges, and therefore found objectionable certain veniremembers who were seated as jurors.

Because of the erroneous ruling on the challenge of veniremember Flieller and the resultant seating of a juror objectionable to appellant, the judgment must be reversed and appellant remanded to the custody of the sheriff of Travis County to answer the charges in the indictment.

ONION, P.J., dissents.

      . The State and the trial court were mistaken in their belief that Flieller gave only the "equivocal" answer of "I don’t think so” when questioned about the ability to consider probation.
      The key to the analysis of the propriety of all rulings upon challenges for cause, is not the use or lack of use of a single word but the import of the voir dire of the veniremember taken as a whole. See, e.g., Jernigan v. State, 661 S.W.2d 936, 942 n. 8 (Tex.Cr.App.1983).


author: MILLER, Judge.

text:
    Floyd Vollien FRANK, Appellant, v. The STATE of Texas, Appellee.
    No. 268-84.
    Court of Criminal Appeals of Texas, En Banc.
    May 1, 1985.

      Joe B. Goodwin (on appeal only), Beaumont, for appellant.
    James S. McGrath, Dist. Atty., R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty. and Cathleen R. Rie-del, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted of murder in a trial before the jury. Punishment was assessed by the jury at 20 years imprisonment. On appeal to the Beaumont Court of Appeals, appellant’s conviction was affirmed. Frank v. State, (Tex.App.—Beaumont No. 09-83-018 CR, November 9, 1983). We granted the appellant’s petition for discretionary review to determine, among other things, whether the court of appeals was correct in holding that appellant was not entitled to a defensive charge on the right to defend himself against a joint attack. We reverse.

Before reaching the merits of appellant’s contentions, we first address the State’s argument that the error, if any, was not preserved. The record reflects that prior to the delivery of the charge to the jury, appellant filed with the court a document entitled “Defendant’s Requested Charges”. This two and a half page document contained instructions on the right of self-defense against multiple assailants, instructions on apparent danger, and a paragraph applying both theories to the facts of the instant case. Article 36.15, V.A.C.C.P., specifically provides, in pertinent part:

“The defendant may, by a special requested instruction, call the trial court’s attention to error in the charge, as well as omissions therefrom, and no other exception or objection to the court’s charge shall be necessary to preserve any error reflected by any special requested instruction which the trial court refuses.” (emphasis added).

Although Art. 36.15, supra, clearly holds that the presentation by appellant of his special requested instructions preserves any error from the denial thereof, the State, in its brief, essentially argues that appellant’s counsel later waived any error as a result of the following exchange after the closing of the evidence:

“THE COURT: The [State’s] objection [to the inclusion of a charge on voluntary manslaughter] is overruled. Do you have any others, Mr. Grove [the prosecutor]?
“MR. GROVE: No, Your Honor.
“THE COURT: Mr. DeLee [appellant’s attorney]
“MR. DELEE: Your Honor, I have a written requested Charge I wish the Court to consider.
“THE COURT: All right.
“MR. DELEE: It’s similar to the Court’s Charge, Your Honor, but not exactly the same.
“THE COURT: The request for the tendered Charge is denied. Anything further, Mr. DeLee?
“MR. DELEE: No, Your Honor.”

The State argues that the appellant implied by these statements that his written requested instructions were substantially the same as those given by the trial court and thus by so stating he waived any error. See DeBolt v. State, 604 S.W.2d 164 (Tex.Cr.App.1980). We disagree.

The trial court had before it the requested written instructions as well as the already prepared court’s charge. Appellant’s attorney specifically directed the court’s attention to the instructions. Even a quick perusal of the requested instructions clearly shows that although appellant was using similar language in setting out parts of the instructions, his charge substantially differed from the trial court’s by the presentation of instructions relative to self defense against an attack by multiple assailants. To agree with the State that appellant waived error would be to hold that the trial judge had no obligation, after being requested to consider a written requested charge presented as similar but not exactly the same as the Court’s Charge, to even peruse the instructions after his attention had been specifically directed to them. Such a holding flies in the face of the express and implied intent of Art. 36.15. The State’s argument is without merit.

In a supplemental brief on the same matter, the State’s attorney refers this Court to Hackbarth v. State, 617 S.W.2d 944 (Tex.Cr.App.1981), as an analogous situation wherein we held that the objection to the charge was not specific enough to preserve error. The total objection to the charge in Hackbarth was as follows: “Fourth. That the defendant objects and excepts to the Court’s charge as a whole as the same is not sufficient to protect the rights of the defendant.” Hackbarth, however, is simply not on point in that the defendant was making an objection to the charge, pursuant to Art. 36.14, V.A.C.C.P., not a requested special charge, as provided for in Art. 36.15, supra, and at issue in the instant cause. Moreover, the objection in Hackbarth, of course, was totally insufficient to apprise the trial court of the defendant’s complaint whereas the appellant in the case at bar properly presented his special requested instructions in writing prior to the court reading the charge to the jury. No other objection was necessary.

Accordingly, we find that any error which occurred from the trial court’s denial of the requested instructions was preserved according to the requirements of Art. 36.15, Y.A.C.C.P.

We next address appellant’s contention that the trial court erred in refusing his special requested instruction on self-defense against a joint attack. The appellant in the instant cause was convicted of the murder of his ex-wife, Goldy Franks. The offense occurred in the front yard of appellant’s home when the deceased and her son, Alex Thibo, approached appellant regarding retrieval of a lawn mower which had been awarded to the deceased in the recent divorce decree. According to the testimony of Thibo, appellant shot them without provocation or warning. Thibo was shot twice; his mother was shot three times in the head.

The appellant’s testimony as to the circumstances surrounding the shooting differed in several aspects from that of Thibo. He testified that since he and his wife had begun having marital problems, her children, particularly Thibo, had made threats against appellant, had harassed him, and had destroyed his property. He stated he had often called the police as a result of these threats and harrassment. He specifically described several previous threats to his life made by Thibo. He also testified that .a few minutes before the instant offense, Thibo had driven by his house, stopped, started “shouting and raving,” told appellant he would return with his “stuff,” which appellant described as street language for “gun,” and drove off. After this threat, appellant went into his house, called the police, picked up his pistol, and returned to the yard to work on the lawn mower. He testified he felt he had to protect himself from Thibo who he claimed often carried a gun and had been in several knife fights. He also testified that his ex-wife sometimes carried a gun and a “long knife” with which “she was saying how she could hide it and walk right up on somebody before they know she’s got it.” Appellant then described the following sequence of events:

“A. Before I know it, a big red L.T.D. with white top pulled back up. Two people jumped out and ran up to the yard. Before I could even straighten out good, Thibo was on the top step.
sjc sfc if: sje ⅜ ⅝
“Q. And who was with him?
“A. His mother, Goldie Frank.
“Q. What did you do when they drove up?
“A. I was just finishing up adjusting the back wheels and front wheels to the mower so they could be lifted higher.
“Q. Were you on your knees?
“A. Yes, sir.
“Q. Were you bending over the lawnmower?
“A. Yes, sir, on my knees when they drove up.
⅜ ⅝! ¡⅜ ⅜ Sfc *
“A. ... The gate was open just like it is now, and they ran in. They just come right on in. I hardly had time to stand up.
⅜ ⅝ * ■ ⅜ * ⅜
“Q. Well, what were they saying when they ran in, then, ran through the gate?
“A. He stood on top [of the steps] and said, ‘We come to get the lawnmower’.
“Q. Who said that?
“A. Thibo.
“Q. Were you straightened up at that time?
“A. Yes, sir, I was — I said, ‘You’re going to have trouble getting it’.
“Q. Then what happened?
“A. She got too close to me.
“Q. What do you mean, ‘too close to me’?
“A. She got too close to me, and he was moving into me at the same time, and—
“Q. All right. Were you afraid you were going to be hurt then?
“A. Sir, wouldn’t you be afraid?
“Q. Were you afraid?
“A. Yes, sir, I was definitely afraid I was going to be hurt.
“Q. What do you mean, ‘got too close to me’?
“A. She was right up under me, there, and she could stick anything in my ribs.
“Q. What do you mean by ‘right up ' under you’? You weren’t on the step, were you?
“A. No. I was standing down here on the ground. Thibo was standing here at the top step.
“Q. All right.
“A. When she ran in, she ran straight over toward me, like this — and he went to moving in and she ran in there close to me. Well, I figured — I said, ‘[i]f this is what it is coming to, stop the bad man first’, so I shot him first, then I shot down. She didn’t move. I thought I missed her. The gun didn’t go off. I didn’t know. I was excited, I guess, so I just did it a couple of more times, and she finally moved, and he’s right up on top of me, like this, so I shot him in the hand. I thought I shot him somewhere else, but it turned out I shot him in the hand. He fell in the bush, then, and took off running.
“Q. All right. You said he was coming at you the second time?
“A. Yes, sir.
9jc ⅜ ⅜; ⅜ :⅝
“Q. Were you afraid for your life, Floyd?
“A. Sir, at a time like that, anybody would be afraid for their life, and I was definitely there.
“Q. It’s your testimony that they more or less attacked you from the car, they ran at you?
“A. They ran into the yard and got there, and they — looked like they were timing themselves so they could both get me at the same time.
* * * * * *

Appellant further testified that after the shooting and before the police arrived, he saw Alex Thibo leaning across a car with a gun pointed at him. He then was asked:

“Q. You don’t know if he had a gun [before the shooting], do you?
“A. No, sir, I wouldn’t put my neck on the chopping block and say he had a gun, but I believe he had a gun, and I just surprised him. He forgot to use it.
“Q. You were afraid they were going to hurt you or kill you, is that right?
“A. Yes, sir.
* * * * * *
“Q. In your mind, you thought you had to defend yourself that day? Is that right?
“A. Yes, sir. I had to continue to defend myself until help come.
* * * * * *
“Q. Now, it’s your testimony that you didn’t ever see a gun in Alex Thibo’s or in Goldie Frank’s hand before you shot them, but you thought they might have a gun?
“A. True.
* ⅜ * * * *
“Q. Now, why did you feel in your mind that this was the time that they were actually going to inflict bodily injury on you?
“A. Sir, you have to live in my community and walk the block, or be with the people who do walk the block, to know what I’m talking about. People like Felix, her oldest son that was here already, Thibo, and the others, they are dangerous people.
“Q. What do you mean by being ‘dangerous people’?
“A. They have cut up quite a few people, and they have got into it, and they have quick, very quick tempers.
“Q. So, I ask you, again, were you afraid at that time?
“A. Yes, sir. I was afraid for my life.”

In the instant case, the trial court gave an instruction on the law of self-defense against an attack by the deceased, but refused the requested instruction on self-defense against a joint attack. The State, in its brief on direct appeal, argued that there was no evidence showing that the third person, i.e., Thibo, had a weapon or made a move as if to draw a weapon, and thus no charge on a joint attack was necessary. The court of appeals, however, found:

“The only threat appellant testified to regarding his ex-wife (the deceased) was that she got too close to him. This hardly justified his shooting her three times in the head; therefore, even if appellant’s fears concerning deceased’s son were justified, an attack by multiple assailants was not raised by the evidence.”

Thus, the court of appeals found that the trial court had incorrectly given a charge on the appellant’s right to defend himself against an attack by the deceased. The court then concluded that a charge on the right to defend against an attack by the deceased and a third party was certainly not required.

The law of self-defense by the use of deadly force has long been codified in Texas. A person is justified in using deadly force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force if a reasonable person in the actor’s situation would not have retreated. V.T.C.A. Penal Code, §§ 9.31, 9.32. Furthermore, this Court has held that a charge which is confined only to the right of self-defense against the deceased is too restrictive if there is evidence that more than one person attacked the defendant. Sanders v. State, 632 S.W.2d 346 (Tex.Cr.App.1982). Accordingly, a defendant is entitled to a charge on the right of self-defense against multiple assailants if “there is evidence, viewed from the accused’s standpoint, that he was in danger of an unlawful attack or a threatened attack at the hands of more than one assailant.” Wilson v. State, 140 Tex.Crim 424, 145 S.W.2d 890, 893 (1940). In determining whether evidence has been presented which raises the issue of a defensive charge, we must consider all of the evidence presented at trial regardless of whether it is “strong, weak, unimpeached, or contradicted.” Booth v. State, 679 S.W.2d 498, 500 (Tex.Cr.App.1984). See also Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984).

Although the court of appeals and the trial court differed as to which of the injured parties may have been attacking appellant according to appellant’s trial testimony, we find appellant’s testimony clearly demonstrated that he believed both were about to attack him. He testified the deceased sometimes carried a knife. He further testified that on the day of the offense the deceased ran into the yard and up to him as if she were positioning herself to “stick” him in his ribs. Moreover, appellant’s testimony was replete with evidence of his belief that Thibo had a gun and, along with the deceased, was attempting to make a deadly assault upon appellant. Although the trial court by its charge acknowledged appellant’s testimony regarding the attack by the deceased, the trial court refused the requested instruction on the right of self-defense against multiple assailants. Appellant requested such a charge and the denial of same was reversible error. See Sanders, supra; Warren v. State, 565 S.W.2d 931 (Tex.Cr.App.1978).

The judgments of the court of appeals and the trial court are reversed and the cause is remanded to the trial court.

      . Appellant’s requested charge essentially follows the one set forth in McClung’s Jury Charges for Texas Criminal Practice (1983), page 324, except for one paragraph which deals with a V.T.C.A. Penal Code, § 19.06, charge and is the basis for appellant’s second ground for review in this Court. Because of our disposition of appellant’s first ground for review, however, we find it unnecessary to address this issue.


author: PER CURIAM. CLINTON, Judge, TEAGUE, Judge,

text:
    Ex parte Lawrence Anthony GIBAUITCH.
    No. 69248.
    Court of Criminal Appeals of Texas, En Banc.
    May 1, 1985.

      Lawrence Anthony Gibauitch, pro se.
    John B. Holmes, Jr., Dist. Atty., and Eleanor Montague McCarthy, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

This is a post-conviction application for habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Applicant was indicted for the offense of delivery of 400 grams or more of cocaine, alleged to have occurred on December 7, 1981. By agreement with the State, applicant pled guilty to the offense of possession of 400 grams or more of cocaine. There was no plea bargain as to punishment. After the pre-sentence investigation, the court assessed punishment at sixteen years. The Fourteenth Court of Appeals (Houston) affirmed the conviction in an unpublished per curiam opinion delivered May 12, 1983 (No. A14-82-702-CR).

At the plea proceeding on August 9, 1982, the trial court admonished applicant that the penalty range for possession of cocaine in the amount alleged was confinement for a term of not less than ten years, nor more than ninety-nine years, or life, and that the court could also assess a fine not to exceed $100,000.00.

The trial court’s admonishment accurately stated the punishment range for the offense as set out in the 1981 amendment to the Texas Controlled Substances Act, Art. 4476-15, V.A.C.S.

In Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983), we held the 1981 amendment unconstitutional. As a result, applicant’s offense at the time of his plea was subject to the penalty set by the law before the void 1981 amendment. That penalty was second-degree felony punishment: confinement for any term of not more than 20 years or less than 2 years, and a possible fine not to exceed $10,000.00.

Invoking Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed. 747 (1970) and Art. 26.13, V.A.C.C.P., applicant makes his claim as follows:

“[Applicant] having been tried and convicted under a statute in which he thought he could have received a sentence of life or ninety-nine (99) years, [applicant] would have decided, because of trial strategy, to have his case tried before a jury rather than the trial court, had he known the minimum punishment was two (2) years and the maximum penal punishment was twenty (20) years. It is not an [sic] ‘knowingly and intelligent act’ ... ‘with sufficient awareness of the relevant circumstances and likely consequences,’ to plead guilty and receive a sixteen (16) year sentence, when the only possible maximum penal punishment was twenty (20) years and then relinquish one’s constitutional rights.”

The State’s answer denies that applicant’s plea was unknowing or involuntary. At the habeas hearing applicant offered no evidence about any alternative or abandoned trial strategy. Instead, the only evidence applicant offered on the admonishment issue was the statement of facts from the plea proceeding, which contained the record of the admonishment given, and his own testimony that, had he known that the “actual” range of punishment was from two to twenty years, he would not have pled guilty.

Article 26.13, supra, provides in pertinent part:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
“(1) the range of punishment attached to the offense;
“(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”

Article 26.13 requires reversal of the conviction when the trial court wholly fails to admonish the defendant concerning punishment. Ex parte McAtee, 599 S.W.2d 335 (Tex.Cr.App.1980); Whitten v. State, 587 S.W.2d 156 (Tex.Cr.App.1979).

On the other hand, when the record shows that the trial court gave an admonishment that was incomplete or incorrect, there is a prima facie showing of a knowing and voluntary plea of guilty. The burden then shifts to the defendant to show that he entered the plea without understanding the consequences of his action and thus was harmed. DeVary v. State, 615 S.W.2d 739 (Tex.Cr.App.1981); Ex parte McAtee, supra. See also Taylor v. State, 610 S.W.2d 471 (Tex.Cr.App.1981), Borrego v. State, 558 S.W.2d 1 (Tex.Cr.App.1977), and Adams v. State, 630 S.W.2d 806 (Tex.App.—Houston [1st Dist] 1982 no pet.)

In Ex parte Smith, 678 S.W.2d 78 (Tex.Cr.App.1984), defendant pled guilty to delivery of marihuana of less than five pounds but more than four ounces. Defendant was convicted for the offense on September 16, 1983, two days after our decision in Ex parte Crisp, supra. Defendant was admonished that the penalty range was not less than two years nor more than twenty years confinement. But as a result of Crisp, the penalty applicable to the offense was not less than two nor more than ten years. Defendant had a plea bargain with the State, and was assessed punishment of not less than two nor more than eight years.

This Court stated that “there can be no question that the admonishment was not proper.” The Court noted that defendant alleged under oath he would not have entered the plea bargain if he had known the maximum penalty was only one-half of what he was told, and that this allegation was not contradicted. The Court concluded that defendant was not aware of the consequences of his plea, that he was harmed by the court’s admonishment, and further, under all the circumstances, the guilty plea was not knowingly and voluntarily entered.

Under Brady v. United States, supra, the standard of voluntariness of guilty pleas requires full awareness of the direct consequences, including the actual value of any commitments made to the defendant by the court, the prosecutor, or his own counsel. In Smith, supra, defendant was unable to appreciate the actual value of his plea bargain because the maximum punishment he risked without the bargain was overstated to him.

There was a plea bargain also in Hurwitz v. State, (No. 742-84, Tex.Cr.App., delivered April 10, 1985). A two-count indictment charged defendant with possessing more than fifty pounds of marihuana, and with possessing more than five but less than fifty. Defendant pled guilty to possession of more than five but less than fifty. Under H.B. 730 that offense was a second-degrée felony, and the trial court accurately admonished defendant of the punishment range. As a result of Crisp, supra, the offense was a third degree felony. Thus the trial court admonished defendant that the maximum punishment for the offense was twenty years, when in fact the maximum was ten years. Pursuant to the plea bargain, the trial court assessed two years—the minimum under both H.B. 730 and the pre-amendment law.

On appeal, defendant argued that his plea was rendered involuntary because of the improper admonishment. The Court of Appeals and this Court rejected that contention. Following the Court of Appeals in distinguishing the case from Ex parte Smith, supra, we wrote:

“Appellant filed a pre-trial motion to quash the indictment which was based solely upon the Third Court of Appeals opinion in Crisp v. State, 648 S.W.2d 487 (Tex.App.—Austin 1982). The hearing on this motion occurred after this Court had granted the State’s petition for discretionary review in Crisp. The record reflects extensive discussion between the Court, the State, and defense counsel concerning the unsettled state of the law until this Court rendered its decision in Crisp. As the court of appeals pointed out in its decision, it was apparent to everyone that appellant was charged with either a third-degree felony or, alternatively, aggravated possession (Count I), and a second-degree felony (Count II), depending on this Court’s holding in Crisp.
“Appellant very clearly had this knowledge when he entered into his plea bargain agreement with the State....”

We then quoted with approval the reasoning of the Court of Appeals:

“While we may conclude that appellant’s decision as to his plea to be entered may have been rendered more burdensome by the unsettled state of the law, we cannot conclude that he was misled or harmed by the court’s admonishment, which the record reflects he knew might or might not be correct. It is equally clear, as to his knowledge of the consequences of his plea, that he was aware that he had bargained for the minimum punishment available, regardless of the uncertainty as to whether the offense was a second- or third-degree felony.” (Emphasis in original.)

Thus the defendant in Hurwitz was able to evaluate his bargain correctly. Even though the value of the bargain was contingent upon the ultimate resolution of the Crisp issue, defendant knew this. He was able to factor the contingency into his calculation of the relative benefit to him of waiving jury trial and pleading guilty in exchange for an agreed punishment.

We note that there is some dispute whether an admonishment that accurately recites the applicable penalty range of H.B. 730 is improper. See Hurwitz, supra (Clinton, J., concurring). Presumably all are agreed, however, that such an admonishment constitutes at least substantial compliance with Art. 26.13, supra. Ex parte Smith, supra; Hurwitz, supra. The burden is then on applicant to show harm. Devary, supra; Ex parte McAtee, supra.

In the instant case, the trial court found as a fact that there was no plea bargain on punishment. The record of the plea proceeding clearly reflects that both applicant and his lawyer acknowledged to the trial court that there was no plea bargain. Applicant testified at the habeas hearing that when he went before the trial judge and entered his plea of guilty, he did not know what punishment the judge was going to assess. He further testified that neither the State nor the trial judge had promised him any certain term of punishment. There is no issue in this case, then, about applicant’s ability to evaluate a plea bargain; there was no bargain. Applicant’s plea was not unknowing or involuntary because of his unawareness of the actual value of a plea bargain.

Moreover, the trial court found as fact that applicant’s lawyer had filed a motion to quash the indictment based on the unconstitutionality of the statute, and that “the disposition of the Applicant’s case was delayed upon the Applicant’s and his counsel’s request, in the hope and. expectation that the Act would be declared unconstitutional prior to the disposition of the case.” At the habeas hearing, applicant was asked whether, at the time of his plea, he was aware “that the state of the law regarding the controlled substances act was changing or about to change,” and applicant answered “Well, I was aware that it was inaccurate.” Applicant has failed to show affirmatively that, despite his awareness, the admonishment misled or harmed him.

Finally, applicant’s claim amounts to the bare assertion that he “would have decided ... to have the case tried before a jury rather than the trial court, had he known [the range was 2 to 20 rather than 10 to life].” Applicant has established no support for this assertion. The countervailing fact that applicant pled guilty with no plea bargain on punishment makes his claim all the more unlikely.

Applicant has failed to carry his burden of proof that his plea was involuntary or unknowing.

Applicant further claims that his confinement is illegal because the trial court considered the wrong penalty range in assessing punishment. Applicant points out that the trial court’s sixteen year assessment was in the lower part of the 10 to life range authorized by the 1981 amendment. Sixteen years is only four short of the 20 year maximum term authorized under the pre-amendment law. Thus applicant received a relatively light term measured by the void amendment, and a relatively harsh term measured by the pre-amendment act.

The trial court found as a fact that, “When the Court assessed the Applicant’s punishment at sixteen (16) years, the Court purposefully assessed a punishment that would fall within the penalty range of the pre-amendment statute, in the event that the Act would later be declared unconstitutional.” The trial court’s focus was on the amendment’s more severe range, and only as a precaution did the court take into account the pre-amendment act’s lesser range. It seems undeniable that the amendment’s penalty range — which from the trial court’s perspective was presumptively the law — exerted on the court’s discretion a distinct pressure toward a higher punishment; that is, toward the maximum provided by the pre-amendment act. Tolerating such influence exerted by the amendment would give effect to what we have elsewhere held to be “void ab initio.” Ex parte Crisp, supra. Cf. Hurwitz, supra (defendant was assessed 2 years, the minimum under either the amendment or the original act); see also Fuentes v. State, 688 S.W.2d 542 (Tex.Cr.App.1985) (defendant was assessed 7 years; both the amendment and the pre-amendment act provided a range of 5 to 99 years for the offense).

The cause is remanded to the trial court for reassessment of punishment. All other relief prayed for is denied.

ONION, P.J., dissents.

CLINTON, Judge,

concurring.

We seem to be disposing of each cause implicating ramifications of our decision in Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983), on an ad hoc basis. Thus Smith won because he swore that had he known the maximum punishment later found to be available was one half of what he was told it was he would not have entered into a plea bargain “based on the wrong range of punishment.” Ex parte Smith, 678 S.W.2d 78 (Tex.Cr.App.1984). Hurwitz lost because he entered into a plea bargain based on one range of punishment or another — no one knew for sure which would ultimately turn out to be correct — but he gained the minimum in either case. Hurwitz v. State, (Tex.Cr.App.No. 742-84, delivered April 10, 1985). See Fuentes v. State, 688 S.W.2d 542 (Tex.Cr.App.1985); see also Hernandez v. State, 669 S.W.2d 734 (Tex.Cr.App.1984) (judgment imposing punishment assessed by verdict of jury reversed because within higher range than authorized by revived provision of Texas Controlled Substances Act) and Uribe and Correa v. State, 688 S.W.2d 534 (Tex.Cr.App.1985). And as I understand its opinion today, though like Hurwitz appellant was aware of his prospects under Crisp, the majority says he loses because there is not a plea bargain as to punishment and therefore nothing for applicant “to evaluate.” If there is any common principle at work in all this, it has not manifested itself.

Concurring in Hurwitz, supra, I pointed out, “But for the fact that H.B. 730 was subsequently found unconstitutional there would be no question about what the prosecution and accused agreed to do and did and what the trial court ultimately did,” and added, “[T]hat the statute was later found unconstitutional would not ipso facto render an otherwise free and voluntary plea ‘involuntary,’ ” although other factors might require reversal of the conviction. In the cause at bar I do not find any reversible feature.

Obviously the State was prepared to prove that' applicant possessed and delivered four hundred or more grams of cocaine. In this case and others like it we should follow the rationale of Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), viz:

“[AJbsent misrepresentation or other impermissible conduct by state agents ..., a voluntary plea of guilty intelligently made in light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer [and the trial judge] correctly advised him with respect to the then existing penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.”

Id., U.S. at 757, S.Ct. at 1473. The Supreme Court found no constitutional requirement “that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that ... the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.” Id., U.S. at 757, S.Ct. at 1474. Nor, so far as I am aware, is there any such statutory requirement.

Finally, the majority would have this Court remand the cause for reassessment of punishment. Dubitante, I defer to the collective judgment of the majority.

For these reasons I concur in the order of the Court.

TEAGUE, Judge,

dissenting.

Notwithstanding that I continue to adhere to what I stated in the concurring opinion that I filed in Hurwitz v. State (Tex.Cr.App.1985) (No. 742-84, April 10, 1985), I am compelled in this instance to dissent to the majority opinion because the record in this cause clearly reflects that Gibauitch, the appellant, is entitled to relief-either because his plea of guilty was involuntary or because there was no compliance with the provisions of Art. 26.13(a)(1), Y.A.C.C.P., when the trial judge admonished Gibauitch of the punishment for the offense to which he pled guilty.

The record reflects that the trial judge admonished Gibauitch that the penalty range for the offense to which he pled guilty was confinement in the Department of Corrections for a term of not less than ten years, nor more than ninety-nine years, or life, and a fine not to exceed $100,000. However, but because of this Court’s decision of Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983), the penalty range for the offense to which Gibauicch pled guilty to committing was actually not less than two years nor more than twenty years, and a possible fine not to exceed $10,000.

Gibauitch, without contradiction, testified in the trial court that had he known that the punishment range was not as the trial judge stated to him, but, instead, was not less than two years nor more than twenty years, and a possible fine not to exceed $10,000, he would not have pled guilty. He asserts that the erroneous admonishment he received from the trial judge rendered his plea involuntary. In light of the record before us, I agree with his assertion.

However, there is yet another reason, other than the fact that Gibauitch’s plea of guilty was involuntary, why his plea of guilty should be set aside.

In this instance, because of what this Court stated and held in Taylor v. State, 610 S.W.2d 471 (Tex.Cr.App.1981) (Opinion on State’s Motion for Rehearing), there was no compliance, much less substantial, compliance with the provisions of Art. 26.-13(a)(1), supra, when the trial judge admonished Gibauitch as to the punishment for the offense to which he pled guilty.

In this instance, when the trial judge admonished Gibauitch, the trial judge did not state either the correct minimum punishment or the correct maximum punishment for the offense. Cf. Hurwitz v. State, supra. The admonishment that was given, to me, if no one else, represents a total failure on the part of the trial judge to admonish Gibauitch on the punishment for the offense to which Gibauitch pled guilty to committing. The admonishment Gibauitch received from the trial judge represents no compliance with the provisions of Art. 26.13(a)(1), supra. “In such a case the danger of the defendant entering an unknowing and involuntary plea is so great that no specific harm need be shown.” Ex parte McAtee, 599 S.W.2d 335, 336 (Tex.Cr.App.1980). Cf. Borrego v. State, 558 S.W.2d 1 (Tex.Cr.App.1977).

To the failure of the majority to grant Gibauitch relief, either because his plea of guilty was involuntary or because he received no admonishment pursuant to the provisions of Art. 26.13(a)(1), supra, I compelled to respectfully dissent.

      . Acts 1981, 67th Leg., ch. 268, pp. 696, 700, eff. Sept. 1, 1981 (H.B.730).

      . Acts 1973, 63rd Leg., ch. 429, pp. 1132, 1148; amended by Acts 1983, 68th Leg., ch. 425, pp. 2361, 2380, eff. Aug. 29, 1983.

      . The September 16 opinion was affirmed on rehearing, 661 S.W.2d 956 (Dec. 7, 1983). The mandate issued on January 20, 1984.

      . Of course there was a plea agreement: In exchange for his plea of guilty the State abandoned and dismissed two of three paragraphs in the indictment alleging aggravated delivery of cocaine, and reduced the charge in the first paragraph to possession of four hundred or more grams of cocaine.

      . In the instant cause the supreme irony is that since applicant was aware of the uncertain state of the law he does not get a new trial, but because the trial judge expressed a similar awareness the court must reassess punishment. One wonders how the penalty range provided by the 1981 amendment “exerted on the court’s discretion a distinct pressure toward a higher punishment,” yet did not likewise influence applicant in his decision to plead guilty.


author: THOMAS G. DAVIS, Judge.

text:
    Ex parte Kenneth William DAVENPORT.
    No. 69293.
    Court of Criminal Appeals of Texas, En Banc.
    May 1, 1985.
    See also, Tex.Cr.App., 671 S.W.2d 530.

      John D. Reeves, S. Michael Bozarth, Huntsville, for appellant.
    Steve W. Simmons, Dist. Atty. and Rebecca E. Wardlaw, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

THOMAS G. DAVIS, Judge.

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

On August 17, 1983 applicant was convicted, following his plea of guilty, of sexual abuse of a child. Punishment was assessed by the court at nine years. The sentence provided such term “to run concurrent with the pending New Mexico offense.”

Applicant contends that he agreed to plead guilty “in exchange for the State’s recommendation that applicant’s Texas time was to run concurrently with” the New Mexico sentence.

The trial court, after conducting a hearing on applicant’s habeas application, entered findings which are adverse to applicant’s claim. The court’s findings that no plea bargain existed and that applicant was not induced to enter a plea of guilty by any representation as to what would happen to his New Mexico case are supported by the record. Applicant’s trial counsel testified that he contacted probation authorities in New Mexico who advised him that they would make no deals and would probably revoke applicant’s probation. Counsel advised applicant accordingly.

The record of the proceedings at the guilty plea is before us and it reflects that the only recommendation as to punishment was made by the Adult Probation Department and it was for ten years. Not only did the court admonish applicant that it was not bound by such recommendation, the court, in fact, assessed punishment at nine years. The careful trial judge, before accepting applicant’s plea of guilty, further admonished applicant “also with this understanding that this time you receive in these Texas cases will run concurrent with the time you have in New Mexico, as far as I am able to do so. As to what New Mexico wants to do, I have no choice.” (Emphasis supplied.)

This Court has held that where the inducement for a defendant to enter a plea of guilty is a representation by the State which it cannot keep, doubt is raised as to whether a guilty plea under such circumstances can be regarded as truly voluntary. Ex parte Burton, 623 S.W.2d 418 (Tex.Cr.App.1981); Bass v. State, 576 S.W.2d 400 (Tex.Cr.App.1979).

When a defendant enters into a plea bargain agreement that is not enforceable, the defendant is entitled to withdraw the plea. Ex parte Chandler, 684 S.W.2d 700 (Tex.Cr.App.1985).

The instant case does not fall within the ambit of the rule announced in the foregoing cases. Applicant’s counsel admonished him that New Mexico authorities would make no deal with regard to probation. No plea bargain is shown and the trial court, before accepting applicant’s plea, admonished him that he had no control over his New Mexico case.

The relief sought is denied.