author: CAMPBELL, Judge. CLINTON, Judge.

text:
    Ex parte Randy Eli GROTHE.
    No. 69275.
    Court of Criminal Appeals of Texas, en banc.
    July 3, 1984.
    Rehearing Denied April 24, 1985.

      John H. McElhaney, Roark Reed, Dallas, for applicant; George R. Milner, Ronald L. Goranson, Dallas, of counsel.
    Lawrence B. Mitchell, R.K. Weaver and Kerry Fitzgerald and Henry Wade, Dist. Atty. and Karen Chilton Beverly, Asst. Dist. Atty., Dallas, for Judge Moss.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CAMPBELL, Judge.

This is an original application for writ of habeas corpus wherein applicant requests that this Court issue a writ of habeas corpus and relieve him from an order of contempt entered by respondent judge during the pendency of a criminal trial. See Art. V, Sec. 5, Tex.Const. and Ex Parte Sheppard, 548 S.W.2d 414 (Tex.Cr.App.1977). This application presents a very narrow question, to wit: whether the First Amendment to the United States Constitution or Art. I, Sec. 8 of the Texas Constitution create a privilege whereby photo journalists are excused from testifying and from producing photographs of alleged criminal activity witnessed in a public place. To this narrow question we answer in the negative and deny relief.

Applicant is and was at all relevant times employed as a photographer for the Dallas Morning News. On the morning of September 23, 1983, applicant was assigned to cover a protest demonstration occurring outside the offices of Dallas Power and Light on Commerce Street in downtown Dallas. Applicant proceeded to the above location and took photographs of the demonstration and the subsequent arrest and removal of certain demonstrators, including Mavis Belisle. The following day the Dallas Morning News ran a photograph taken by applicant of Belisle being physically removed from the site by arresting officers.

Subsequently Belisle and two co-defendants were charged by information with violation of V.T.C.A. Penal Code Sec. 42.-03(a)(1), obstructing a public passageway. In so charging Belisle, the State specifically pled that the obstruction of the passageway was accomplished “by chaining himself to the said doorway of a public building.”

At trial on the merits Belisle admitted participation in the demonstration but specifically denied she had at any time been chained to the building. The State called the arresting officer and a security guard for Dallas Power and Light, both of whom testified to having personally observed Be-lisle chained to the doorway. The defense called Belisle and one of the demonstrators (who was allegedly closest to Ms. Belisle), both of whom testified that Belisle was never at any time chained to the doorway. Thus the central issue at trial was whether the defendant was chained to the doorway.

Belisle sought to subpoena applicant to present testimony as to his personal observations of the demonstration and Belisle’s activities.

Applicant filed a motion to quash the subpoena alleging, inter alia, that the First Amendment created a privilege for newspaper reporters and that defendant Belisle had failed to make a substantial showing as to what applicant claimed was required by Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 38 L.Ed.2d 626 (1972). After an extensive hearing the respondent held that applicant would be required to testify as to his personal observations. Prior to testifying, applicant, by his attorney, acknowledged that, as to his personal observations of alleged criminal activity, he was on the same footing as a layperson and therefore he would testify. He nonetheless sought to limit his testimony just to personal observation and continued to invoke a privilege not to answer any questions which encroached upon his status as a reporter. Applicant testified as to his observations. He testified that he believed that defendant Belisle was chained to the doorway; however, he admitted that he had, on a prior occasion, told his attorney that he did not remember whether defendant Belisle was chained. Significantly, he further testified that the photographs he took would probably show whether the defendant was in fact chained and would refresh his recollection. Subsequently, the defense requested that applicant be ordered to review his photographs. Respondent, after further argument by all parties, ordered applicant to review his photos and have the photos available for cross-examination. To this order applicant refused to comply and accordingly was held in contempt by respondent, and ordered jailed until he purged himself. This writ immediately followed.

Applicant argues that the U.S. Constitution requires that courts recognize a qualified privilege for the press not to be required to testify. Applicant urges that by reading Justice Stewart’s dissent with Justice Powell’s concurrence in Branzburg, supra, a balancing test is required before a reporter will be ordered to divulge sources to courts or grand juries. We decline to adopt any combination of the dissenting and concurring opinions. The four justice plurality opinion in which Justice Powell concurred quite clearly found that no balancing was required. Branzburg, supra, at pp. 705-06, 92 S.Ct. at 2668-69. In a footnote in Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978), Justice Powell clarified his position in Branzburg, observing that any press interests can be weighed in the regular subpoena process. Justice Powell specifically found no exception to the requirements of a subpoena for media personnel based upon the First Amendment. Zurcher, supra., concurring opinion, footnote 3 at 570, 98 S.Ct. footnote 3 at 1984.

Assuming arguendo, that the dissent in Branzburg did in fact recognize some sort of media privilege based upon the First Amendment, it is abundantly clear that the facts in Branzburg are much closer constitutionally than the limited facts in the case sub judice.

Branzburg involved three differing claims of privilege, basically centering on appearing before a grand jury and disclosing confidential sources. One of the reporters in Branzburg had, by virtue of a confidential informer relationship, witnessed and photographed the making of hashish. He was required to come forward and divulge “secret” information. We fail to discern any greater interest for applicant here, who allegedly witnessed a crime in a public place. If in fact any weighing of interests is required for requiring the press to divulge confidential informants, that issue is not presented today and we do not decide it.

In Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) the Supreme Court held that nothing in the First Amendment exempted the press from being subject to a search for proof of criminal activity. We find the facts in Zurcher very similar to the instant case. Zurcher, supra, involved the search of a student newspaper office for photographs of a student demonstration wherein several police officers were injured. The State desired to identify possible defendants for criminal charges through the photographs. The Supreme Court upheld the search and stated:

“We finally note that if the evidence sought by warrant is sufficiently connected to the crime to satisfy the probable cause requirement, it will very likely be sufficiently relevant to justify a subpoena and to withstand a motion to quash.” Zurcher, supra at 566, 98 S.Ct. at 1982.

Thus implicitly, the Supreme Court has recognized that the press is not immune from subpoena. Although we find Zurcher factually less compelling than the case sub judice, we nevertheless believe that it is persuasive in its analysis of First Amendment privileges.

We are not unmindful of the important place of a free press in our society, see New York Times v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Grosjean v. American Press, 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Houston Chronicle Pub. Co. v. Shaver, 630 S.W.2d 927 (Tex.Cr.App.1982). Not to be forgotten, however, is the interest in protecting the integrity of the criminal justice system. See United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).

In Nixon, supra, the Supreme Court was weighing the asserted right of presidential privilege versus the criminal justice system’s need for relevant, material evidence. While the Court did recognize a constitutionally based presidential privilege, that privilege had to give way to the criminal defendant’s rights and the integrity of the criminal justice system. The need to develop all facts in an adversarial system of criminal justice is fundamental and comprehensive. Nixon, supra.

Additionally, a citizen accused of crime has the right to confront and fully cross-examine all persons who have testimony relevant to criminal charges. See Davis v. Alaska, 415 U.S. 308, 311, 94 S.Ct. 1105, 1107, 39 L.Ed.2d 347 (1974); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). As the Supreme Court noted in United States v. Nixon, supra:

“The right to production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right ‘to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor... It is the manifest duty of the courts to vindicate those guarantees and to accomplish that, it is essential that all relevant and admissible evidence be produced.” United States v. Nixon, 418 U.S. at p. 711, 94 S.Ct. at p. 3109.

Applicant cites us to many authorities from other jurisdictions, urging that a balancing test be adopted and applied to the instant case. We note that most of the cases cited deal with disclosure in civil actions or disclosure of confidential sources; as such we find them to be unpersuasive and not controlling. Moreover, we fail to see a hypothetical case wherein a weighing process would result in suppression of highly relevant personal observation of public criminal activity.

In light of the foregoing, we fail to see how applicant’s rights will be in any way diminished in requiring production of photographs of an alleged criminal offense occurring in a public place.

The application for writ of habeas corpus is denied. It is so ordered.

TEAGUE and CLINTON, JJ., concur in this opinion.

W.C. DAVIS and TOM G. DAVIS, JJ., and ONION, P.J., not participating.

OPINION CONCURRING IN DENIAL OP LEAVE TO FILE APPELLANT’S MOTION FOR REHEARING

CLINTON, Judge.

Applicant complains the Court on original submission misread Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) [hereafter Branzburg ] in refusing to recognize the constitutional necessity for a balancing of First and Sixth Amendment interests in cases such as this; he argues that this refusal, in turn, results in adoption of an “absolutist position” which denies the existence of any First Amendment privilege of journalists to decline to reveal unpublished material.

I agree that our opinion on original submission may have been hasty in concluding that the Branzburg plurality “quite clearly found that no balancing was required;” however, the balancing test advocated by applicant today is virtually identical to that advanced by Justice Stewart in dissent in Branzburg, a position which was quite clearly rejected by five members of the Supreme Court.

As I read Branzburg, the “balancing” endorsed by the plurality and Justice Powell is more in the nature of weighing considerations relevant to a motion to quash a subpoena within the context of First vis-a-vis Sixth Amendment concerns: whether a grand jury investigation is instituted or conducted in good faith; whether subpoenas are issued, not for legitimate purposes of law enforcement, but to instead harass the press or disrupt a reporter’s relationship with news sources; consideration of the propriety, purposes, scope of the judicial proceeding and the pertinence of the evidence sought; etc.

But applicant would read Branzburg to require this criminally accused, before seeking to exercise a Sixth Amendment right to compulsory process in order to prepare a defense to the accusation, to show (1) she has “exhausted alternative sources” for what is revealed in applicant’s subpoenaed photographs; (2) she has “a compelling need for” them; and, (3) that the photos are “highly relevant to the defense.”

I simply do not read into Branzburg any such test, much less any allotment of that burden on a party to a criminal prosecution. On the contrary, the concurring opinion observed that such a rule would,

“as a practical matter, defeat ... a fair balancing and the essential societal interest in the detection and prosecution of crime would be heavily subordinated.”

408 U.S. at 710, 92 S.Ct. at 2671.

Moreover, in Branzburg, the Court’s majority specifically refused to accord any privilege whatever to journalists to choose not to even appear when summoned by lawful subpoena. Further, a majority of the Court was not persuaded that the litigants claiming a right to protect confidential sources had demonstrated any intolerable burden on news gathering or other clear First Amendment rights. And the plurality discussed at some length the well recognized limitations on the press demonstrating that the First Amendment is not absolute in its operation.

While many of the issues advanced in applicant’s motion for rehearing are provocative, important and deserving of serious consideration by this Court in a proper context, I do not perceive that they are presented by the facts of the instant case. As I understand those facts, the applicant was assigned by The Dallas Morning News to photograph a protest demonstration outside the Dallas Power and Light offices in downtown Dallas. Applicant took photographs of the demonstration as well as the arrest and removal of certain demonstrators, including Mavis Belisle. Belisle was subsequently charged with a penal offense, obstructing a public passageway, and sought applicant’s testimony, and later, his photographs, for her trial. Applicant’s refusal to make his photos available to Belisle for purposes of crossex-amination forms the basis of this contempt proceeding.

In declining to recognize a newsman’s unqualified right to refuse to reveal confidential sources under the three fact situations presented in Branzburg, the plurality stated:

“On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”

408 U.S. at 690-691, 92 S.Ct. at 2661-2662.

From this record one cannot perceive any certain burden on news gathering that might result from requiring the applicant here to turn over photographs which may exonerate a person criminally accused, and which applicant took in a public place apparently accessible to the public at large. Neither do I read applicant’s motion for rehearing to argue that his evidence established any such realistic burden.

If the Court’s opinion on original submission is limited, as it clearly states it is, to the “narrow question” presented by the facts, damage to the First Amendment cannot be seriously read into it. It is therefore appropriate to reiterate here the concluding paragraph of Justice Powell’s concurring opinion in Branzburg:

“In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.”

408 U.S. at 710, 92 S.Ct. at. 2671.

Such legitimate interests are simply not presented today.

Therefore I concur in the Court’s denial of leave to file.

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

      . It is this Court's understanding that applicant was immediately released on bail and did not pursuant to this contempt order, actually spend any time jailed.

      . We recognize that the Texas Legislature has adopted a search shield law which provides more protection than the Zurcher court did. Art. 18.01(e), V.A.C.C.P. However, to this date the Legislature had not adopted a newspaper testimonial privilege, a reporter’s sources shield statute or excluded newspapers from subpoenas.

      . As I understand the dissenting positions in Branzburg, the “balancing” criteria advocated by our applicant here would place the three burdens discussed ante on the State or accused before the journalist in question would be required to even appear pursuant to a subpoena.

      . The Court observed that the facts of the cases did not implicate recognized First Amendment concerns such as intrusions upon speech or assembly, prior restraint or restriction on publication; express or implied command that the press publish what it prefers to withhold; exaction or tax for publishing privilege; penalty, civil or criminal, related to the content of published material; restriction on use of confidential sources; any requirement that the press publish its sources of information or indiscriminately disclose them on request.

      . The plurality mentioned, for example, that the press may not circulate knowing or reckless falsehoods damaging to private reputation; the First Amendment does not guarantee the press a constitutional right of special access to information not available to the general public; the press is regularly excluded from grand jury proceedings, court conferences, meetings of official bodies and private organizations; newsmen have no constitutional right to access to the scenes of crime or disaster when the public is excluded and may be prohibited from attending or publishing information about criminal trials in order to assure the fairness of the proceeding.


source: Caselaw Access Project

author: CAMPBELL, Judge. CLINTON, Judge, TEAGUE, Judge,

license: Public Domain

text:
    Ex parte William E. SPAULDING, III.
    No. 69371.
    Court of Criminal Appeals of Texas, En Banc.
    March 13, 1985.
    Rehearing Denied April 24, 1985.

      Craig Lundquist, Huntsville, for appellant.
    Robert E. Bell, Dist. Atty., Edna, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CAMPBELL, Judge.

This is a post-conviction writ of habeas corpus brought pursuant to Art. 11.07, V.A.C.C.P. Applicant complains that his conviction for aggravated sexual abuse is void. Applicant contends that the jury’s assessment of a $10,000.00 fine in addition to a term of years as punishment is unauthorized by law and therefore the verdict is void and any subsequent judgment and sentence based upon the void jury verdict is void. We agree and grant relief.

Applicant was indicted for aggravated sexual abuse. The indictment further alleged two prior felony convictions for purposes of enhancement. After trial to a jury, the applicant was found guilty. The jury found the applicant had previously been convicted of a felony and assessed punishment at fifty years confinement at the Texas Department of Corrections and a fine of $10,000.00. The trial judge had orally instructed the jury that they could assess a fine as well as confinement. The jury verdict form also included a notation that the jury “has the discretion to assess a fine not to exceed $10,000.00 or not to assess any fine whatever.”

Applicant appealed his conviction which was affirmed by the Thirteenth Court of Appeals (Corpus Christi). 656 S.W.2d 538. Applicant has filed, without the assistance of counsel, four previous writs of habeas corpus which have all been denied without written order. Applicant, now represented by Staff Counsel for Inmates, for the first time raises the issue presented here.

In Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983) this Court held that V.T.C.A. Penal Code, Section 12.42 did not authorize a fine in addition to the enhancement of punishment. This Court refused to harmonize sections 12.42 and 12.32, supra, and held that any jury verdict assessing a fine in addition to enhanced jail time was “void from its inception.” Bogany, supra at 959.

The State concedes that if this Court is to continue following Bogany that applicant is entitled to relief. The State by its district attorney argues that Bogany should be reinterpreted to mean that any fine assessed is in fact surplusage that this Court can ignore.

Surplusage in a jury verdict has been defined as language unnecessary to the verdict where the jury’s intent is clearly discernible without said language. See 25 Tex.Jur.3d, sec. 3606 (Criminal Law) and the cases cited therein. We cannot find that the jury’s assessment of a $10,000.00 fine was “unnecessary.” It is clear from the record that the jury fully intended to assess a fine as they were instructed that they could do in their discretion.

Finally the State, through its State Prosecuting Attorney, has filed a motion to dismiss the application as moot, alleging that the Governor of the State of Texas has remitted applicant’s fine and deleted the offending portion, thus making applicant’s contention moot. Neither party has briefed the question of the Governor’s power to commute or remit a portion of a void judgment and sentence. This appears to be a question of first impression.

Under the Texas State Constitution the Governor is granted the exclusive power to grant pardons and commutation. Ex parte Thomas, 108 Tex.Cr.R. 653, 2 S.W.2d 270 (1928). A commutation limits or modifies an original sentence. 27 Tex.Jur.3d, sec. 4403 (Criminal Law). However, in Bo-gany this Court found that the judgment and sentence based upon a jury verdict unauthorized by law was void. Black’s Law Dictionary defines a void judgment as:

“One which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally, [citation omitted.] One which, from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of any confirmation, ratification or enforcement in any manner or to any degree.” [citation omitted.]

Black’s Law Dictionary, p. 1745 (Fourth Ed.1968, West Pub.Co.). Void is further defined in Black’s as that which nothing can cure.

Since this Court has held that the error complained of here renders a judgment and sentence void at its inception, the Governor cannot modify that which is void. Such judgment and sentence being void, the error is incurable and any subsequent attempt at remitting the fine portion of a void sentence is also void. We hold that the Governor, though he has exclusive jurisdiction to grant commutations, is without authority to remit or commute a portion of a void sentence.

In so folding, we are cognizant of the fact that in another facially similar context we have upheld the Governor’s power to commute a sentence that is legally infirm. See Stanley v. State, 490 S.W.2d 828 (Tex. Cr.App.1973); Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App.1972), cert. denied 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199 (1973); Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972), cert. denied 411 U.S. 934, 93 S.Ct. 1906, 36 L.Ed.2d 394 (1973). In those cases we held that the Governor does have the power to commute a death sentence to a sentence of life after the death sentence has been found to be constitutionally infirm by the United States Supreme Court. Those cases involve reversible constitutional error; they do not involve the problem presented in this case, a judgment which is void ab initio and therefore a nullity. The judgments in Stanley, supra, Cherry, supra, and Whan, supra, were, for want of a better term, voidable, whereas the judgment in the case sub judice is void. Even the Governor, with his constitutional powers, may not breathe new life into a “dead” judgment.

Applicant is entitled to the relief prayed for. Applicant’s judgment of conviction is vacated and applicant is entitled to a new trial. Applicant’s judgment and sentence in Cause No. 81-9-3258 in the 24th district court of Jackson County is hereby vacated and applicant is ordered into the custody of the Jackson County sheriff to stand trial in said cause number.

It is so ordered.

WHITE, J., dissents.

CLINTON, Judge,

concurring.

Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972), was wrongly decided, and its progeny are equally wrong. See Adams v. State, 624 S.W.2d 568, 569-573 (Tex.Cr.App.1981) (Dissenting Opinion). Therefore, we need not strain to distinguish the judgments in those cases from the one here by calling the former “voidable” and the latter “void.” The true rule in Texas is that an appellate court “may not reduce the punishment assessed by the jury,” Ocker v. State, 477 S.W.2d 288, 290 (Tex.Cr.App.1972), and the consequence of that rule is:

“If the punishment was erroneously imposed, then the case stands in the same position as if the jury had failed to reach a verdict. While this Court may remand for an assessment of punishment where the punishment was originally set by the court, we may not do so where the original punishment was set by the jury.”

Id., at 291. Ellison v. State, 432 S.W.2d 955 (Tex.Cr.App.1968).

On that basis I concur in the order granting relief.

ONION, P.J., joins.

TEAGUE, Judge,

dissenting and concurring.

For the reasons expressed by Presiding Judge Onion in the dissenting opinion that he filed in Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972), in which he held that the Governor of Texas may not commute any punishment assessed which, at the time of the order of commutation, was no longer in existence, I agree with the statement that Judge Clinton makes in the concurring opinion he has filed in this cause that Whan v. State, supra, was wrongly decided and its progeny are equally wrong. Cf. Sellars v. Estelle, 536 F.2d 1104 (5th Cir.1976), reh. den. 540 F.2d 1085, cert. den. 429 U.S. 1076, 97 S.Ct. 817, 50 L.Ed.2d 795 (1977), which rejected the assertions that the Governor’s act of commuting a death sentence, which had been vacated by judicial fiat, to 99 years’ imprisonment, denied the defendant due process and equal protection of law, deprived the defendant of his fundamental constitutional right to re-sentencing before a jury, and amounted to a bill of attainder. Also see the concurring opinion I filed in Bogany v. State, 661 S.W.2d 957, 959 (Tex.Cr.App.1983).

However, but in light of what the majority states, I am unable to agree with the statement that Judge Clinton makes in the concurring opinion he has filed in this cause, that “we need not strain to distinguish the judgments in those cases from the one here by calling the former ‘voidable’ and the latter ‘void.’ ” In this instance, I believe that it is necessary that we so strain.

In this instance, when the jury assessed the applicant’s punishment, the trial court had jurisdiction over the applicant, and the offense for which he was convicted of committing. I have yet to find any sound authority that would support the proposition that when a trial court has jurisdiction of the parties, and the subject matter, that because of the fact that an impermissible punishment has been assessed, that this renders the judgment void. I believe that such a defect only causes the judgment to become voidable, and not void.

A “void judgment” is one that facially reflects the want of jurisdiction of the court over either the parties or the subject matter. Because of such defect, this renders the judgment devoid of any potency, causing it to be and to forever remain “limp as a wet dishrag.” It is a nullity from the beginning, and is attended by none of the consequences of a valid judgment. It is entitled to no respect whatsoever because it does not affect, impair, or create legal rights. All proceedings founded upon such a judgment are equally worthless because the judgment can never bind nor bar anyone. A void judgment closely resembles a dead limb on a tree; it can be chopped off at any time. If void, it is not even necessary to take any steps to have it reversed, vacated or set aside. Therefore, in reality, a void judgment is really no judgment, and leaves the parties litigant in the same position they were in before the trial. In summary, a void judgment is coram non judice or brutum ful-men.

The distinction between a “void judgment” and a “voidable judgment” is often overlooked. The general rule is that, where the trial court has jurisdiction of the subject-matter, and of the person affected, its judgment will not be void, though it may be erroneous. If the judgment is merely erroneous, it can be attacked and the error corrected only by a direct proceeding to set it aside, while if it be absolutely void, it is a nullity from the beginning, and may be treated as such without further proceedings to have such nullity judicially declared. However, if the defect in the judgment does not appear facially, it is not void, but only voidable. The former is brutum fulmen or coram non judice, and subject to collateral attack, whereas the latter is subject only to direct attack.

The issue that was before this Court in Bogany v. State, supra, was not the validity of a remission order signed by the Governor of this State; instead, the issue that was before this Court was whether the Houston [First] Court of Appeals, see Bogany v. State, 646 S.W.2d 663 (Tex.App.Houston [1st] 1983), had the legal authority to do what it did in that cause, namely, reform the judgment by striking any requirement of the illegal fine from the judgment. In line with what I have stated, that a defective judgment that is voidable is subject only to direct attack, this Court reversed, see Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983), and held that the court of appeals was without legal authority to reform on direct review the judgment by deleting therefrom the void fine that had been assessed by the jury.

Thus, the issue that is before this Court in this cause does not concern either a death penalty commutation or remission of the punishment assessed by the Governor or an attempted reformation by a court of appeals where a direct attack has been made on the judgment.

What is before this Court is whether the Governor of Texas, acting pursuant to the written signed recommendation and advice of the Board of Pardons and Paroles, as provided by Art. 4, Section 11, Texas Constitution, see also Art. 48.01, Y.A.C.C.P., was authorized to remit the void fine that was assessed by the jury in this cause, which jury, in addition to assessing a void fine of $10,000, also assessed a valid punishment of fifty (50) years’ confinement in the penitentiary. Under the Constitution and the statute, had the fine assessed been valid, no one could or would, I believe, question the authority of the Governor to relieve the defendant of the fine assessed. E.g., Ex parte Thomas, 108 Tex.Cr.R. 653, 2 S.W.2d 270 (1928).

The majority holds, however, based upon some loose language that it has found in this Court’s opinion of Bogany v. State, supra, also see Ex parte McIver, 586 S.W.2d 851 (Tex.Cr.App.1979), that “the Governor, though he has exclusive jurisdiction to grant commutations, was, (at the time he ordered applicant’s fine remitted), without authority to remit or commute a portion of a void sentence.” I am unable to agree with this holding, and would hold, barring any other facts, that what the Governor did in this cause was a valid act, thus causing the applicant’s contention to become moot.

Although I am unable to agree with the majority that “the judgment in the case sub judice is void [ab initio],” and would only hold that the defect in the assessment of punishment rendered the judgment in this cause voidable, and thus subject only to direct attack, nevertheless, because of the “snake-pit full of legal problems” that my holding might cause, I have no problem with agreeing that such defect is subject to collateral, as well as direct attack.

But because there is more in this cause than what the majority mentions, its holding that applicant was entitled to collaterally attack the defective judgment and sentence in this cause actually causes “a snake-pit full of serious legal questions” to arise.

We know that the present Constitution of Texas provides immediately after the “Bill of Rights” for Article 2, Section 1, which in turn provides: “DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF POWER PROPERLY ATTACHED TO OTHER DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of those departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”

Thus, because of constitutional provisions, there is an extremely fine and delicate balance in our system of government, which balance is separated by the fine line that divides our system into the three respective departments of the executive, the judiciary, and the legislative. Because Judge Clinton has adequately, but generally, discussed in the dissenting opinion that he filed in Adams v. State, 624 S.W.2d 568 (Tex.Cr.App.1981), the division of powers that exists between our respective departments of government, I shall not repeat here his words of wisdom. It is sufficient to state that if any department of our government interferes or attempts to interfere, either directly or indirectly, individually or jointly, with another department of our government, once that department’s power properly attaches, such act violates not only provisions of our Constitution, but the will of the people of Texas as well.

Of course, any intelligent person who has carefully read the majority opinion of Adams, supra, should agree with Judge Clinton’s recommendation that it be expressly overruled-because it causes the judicial branch of our government to be, not an equal member, but, instead, a second class member of the triumvirate.

By virtue of Art. 1, Section 5, Texas Constitution, this Court is given, inter alia, “final appellate [criminal] jurisdiction coextensive with the limits of the state ...” And only this Court is given jurisdiction to ultimately decide post conviction writs of habeas corpus, which procedure for handling and processing is set out in Art. 11.-07, V.A.C.C.P.

In this instance, there does not appear to be any disagreement or dispute over the fact that in this cause the provisions of Art. 11.07, supra, were violated with impugnity-in order to sufficiently delay this cause in order to give the Governor the opportunity to do what he did, before this Court could judicially decide the merits of applicant’s contention. The record clearly reflects that this cause was unnecessarily and without just cause delayed to prevent this Court from carrying out its constitutional and statutory duties — all in order to permit the Governor to enter an order of remission, in an effort to cure the well known defect that existed in the judgment in this cause.

It is now axiomatic that “The powers [of each department] are defined and limited; and [so] that those limits may not be mistaken, or forgotten, the constitution [was] written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any [executive] act repugnant to it; or, that the [executive] may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and ... is alterable when [another department] shall please to alter it. If the former part of the alternative be true, then an [executive act] contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.” Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803).

In this instance, but because the judicial process had been invoked prior to the time the Governor signed the order of remission, thus, the judicial power had properly and timely attached before the Governor had acted on the request that was subsequently submitted to him to remit the applicant’s fine, see Art. 2, Section 1, supra, I would vote to hold that the Governor, as head of the Executive Department of this State, exceeded his constitutional authority at the time he ordered applicant’s fine remitted. Cf. Adams v. State, supra.

The majority, however, apparently not wanting to exercise its independent judicial authority, granted to it by the Constitution of Texas, takes a rather simplistic, but humble approach, and holds that “Even the Governor, with his constitutional powers, may not breathe new life into a ‘dead’ judgment.” Notwithstanding my disagreement with this approach, see supra, I must ask: If the Governor of Texas can commute that which does not exist, see Whan v. State, supra, then why cannot he remit that which exists but is only void?

I believe that it is only through the above method that I propose that this Court can hold “that the Governor, though he has exclusive jurisdiction to grant commutations, was in this instance without lawful constitutional authority to remit a portion of a void sentence,” because in this instance the power that he attempted to exercise had already properly attached to the judicial department, thus precluding him to act until after this Court had finally disposed of appellant’s contention that the judgment of conviction and sentence were void.

For the above and foregoing reasons, I dissent to the reasons the majority gives for granting applicant relief, but concur in its result it reaches in order to grant applicant relief.

      . The State abandoned one of the two enhancement paragraphs prior to the submission of. the case to the jury on punishment.

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

      . The Texas Constitution, Art. 4, Sec. 11 provides:
      "In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction ... to grant reprieves and commutations of punishment and pardons, and under such.rules as the Legislature may prescribe, and upon the written recommendation and advice of a majority of the Board of Pardons and Paroles, he shall have the power to remit fines and forfeitures.”

      . In the eminent work on judgments, A Treatise of the Law of Judgments, by A.C. Freeman and Edward W. Tuttle, Fifth Edition, Volume I, Bancroft-Whitney Company, San Francisco, California, 1925, it is stated:
      A judgment void upon its face and requiring only an inspection of the record to demonstrate its invalidity is a mere nullity, in legal effect no judgment at all, conferring no right and affording no justification, [among the many cases cited as authority, the Texas case of Paul v. Willis, 69 Tex. 261, 7 S.W. 357 is cited]. Nothing can be acquired or lost by it; it neither bestows nor extinguishes any right, and may be successfully assailed whenever it is offered as for the assertion of any claim or title. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress, [among the many cases cited for authority, the Texas case of Hollingsworth v. Bagley, 35 Tex. 345, is cited]. No action upon the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in any legislative or other department of the government, can invest it with any of elements of power or of vitality. It does not terminate or discontinue the action in which it is entered, nor merge the cause of action; and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judgment upon the same cause, either in the action in which the void judgment was entered or in some other action. The fact that the void judgment has been affirmed on review in an appellate court [among the many cases cited for authority, the Texas case of Chambers v. Hodges, 23 Tex. 104, is cited], or an order or judgment reviewing or reviving it entered adds nothing to its validity. Such a judgment has been characterized as a dead limb upon the judicial tree, which may be chopped off at any time, capable of bearing no fruit to plaintiff but constituting a constant menace to defendant. (642-645).


author: MILLER, Judge. CLINTON, Judge,

text:
    Jared Ellison CRAVENS, Appellant, v. The STATE of Texas, Appellee.
    No. 366-84.
    Court of Criminal Appeals of Texas, En Banc.
    March 27, 1985.
    Wendell A. Odom, Jr., Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr., Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by a jury of two counts of rape of a child pursuant to former V.T.C.A. Penal Code, § 21.09. Punishment was assessed by the court at 12 years confinement in the Texas Department of Corrections. On appeal, the Houston Court of Appeals affirmed the conviction in a published opinion. Cravens v. State, 663 S.W.2d 668 (Tex.App.—Houston [1st Dist.] 1983).

We granted appellant’s petition for discretionary review to examine the continued viability of the holding of cases like Smith v. State, 86 Tex.Crim. 455, 217 S.W. 154 (1919), and Feather v. State, 169 Tex.Crim. 334, 333 S.W.2d 851 (1960), which held that for purposes of aiding the factfinder’s credibility determination, a female witness may be asked on cross-examination whether she is a “common prostitute.” The nexus between truthtelling and this particular occupation was first expounded upon by Judge Henderson in McCray v. State, 38 Tex. Crim. 609, 44 S.W. 170 (1898). Judge Henderson stated that:

“In common experience, it is known that persons who are so morally degraded as to ply their vocation as common prostitutes are not on a plane with the mass of people who follow legitimate and honorable vocations, in the matter of integrity. As a general rule, they are no more capable of telling the truth than one who has been convicted of a felony, or of some misdemeanor involving moral turpitude, and they are not more worthy of belief than such a one.”

Twenty years later in Smith, supra, this Court held that it was proper for a defense witness to be asked on cross-examination if she is a common prostitute. Citing Smith, supra, the Court in Feather, supra, allowed the same question of a defense witness upon cross-examination. Feather, however, expanded upon this by holding that “[t]his is so only where the question is asked in good faith and an affirmative answer is expected.”

Also relied upon in Feather, supra, is Myers v. State, 149 Tex.Crim. 301, 194 S.W.2d 91 (1946), which held that ordinarily a witness may be asked their occupation and that a “witness may be asked, upon cross-examination, if she is a common prostitute” but cannot be impeached upon the answer given. Further, we held that “[a] witness may not be impeached by proof of specific acts of misconduct which have not eventuated into an indictment or conviction.” This limitation has been basically codified by our Legislature in Art. 38.29, V.A.C.C.P.

The court of appeals, in its opinion in this case, dismissed appellant’s complaint stating that “[i]t is well established that a witness may be asked on cross-examination if she is a common prostitute.” We believe that since this “impeachment” practice was justified solely by the common experience or mores of the day in the 1890’s, and since the Legislature has since seen fit to codify the prohibition against impeachment by pri- or acts of misconduct, a reanalysis is in order.

First we must define the nature and scope of our inquiry. This is not a question of simple impeachment by proof of prior acts of misconduct; to wit, prostitution. If it were, a simple reference to Art. 38.29, V.A.C.C.P., would dispose of the matter. Rather, this query concerns the interrelationship with an entirely different eviden-tiary rule of admissibility that, in this instance, accomplishes the same purpose of impeachment. That rule allows the admissibility of testimony concerning a witness’ occupation in order to aid the trier of fact. Germane to the case at hand, Yeager v. State, 96 Tex.Crim. 124, 256 S.W. 914 (Tex.Cr.App.1923), interpreted the rule as follows:

“We have also held that as affecting her credit a female witness may be asked if she is not a common prostitute [citing McCray, supra, and other cases]. As we understand it, this latter character of cross-examination is permissible, not upon the ground that isolated acts of immoral conduct may be shown to impeach a witness, for proof of such isolated acts is inhibited [sic], but upon the ground that the history, occupation, etc. of a witness are always legitimate subjects of investigation. Underhill’s Cr. Evidence (3rd Ed.), § 387 at 915.” (Emphasis supplied)

When the occupation is reputable, it as-sumedly adds to a witness’ credibility. Contra, when the occupation is not so reputable in the eyes of the trier of fact, it detracts from credibility just as true impeachment evidence does. Indeed, this court has often referred to this testimony as “impeachment,” thus adding to the confusion that is perpetuated in the concurring opinion.

Our inquiry, then, is whether the occupation of a witness is so probative of his or her credibility as to outweigh any prejudicial effect that occupation might simultaneously engender by its revelation. In general, “[qjuestions as to the place of residence and occupation of the witness, and the like, may be asked for the purpose of identifying him and placing before the jury facts from which they may judge of his standing and the weight to be given his testimony.” Thus, an inquiry into a witness’ occupation is probative enough of credibility to be admissible. 37 Tex.Jur.3d, Evidence, § 666 (1984).

A question as to the occupation at hand — prostitution—deserves special handling, however, because it de facto reveals prior acts of misconduct pursuant to V.T. C.A. Penal Code, § 43.02, evidence of which is prohibited by Art. 38.29, supra. No other “occupation” which would de facto reveal acts of misconduct, i.e., common loiterer, common burglar, common criminal, etc., has a rule of admissibility similar to the one in question. As discussed earlier, under Art. 38.29, supra, the general rule regarding impeachment of witnesses is that a witness, by testifying, places his credibility in issue, and the opposing party may seek to impeach such credibility by proof that the witness has been convicted, of a felony offense or a misdemeanor involving moral turpitude.

On balance then, when determining the credibility of a witness is the issue, whatever probative value knowledge that the witness is a common prostitute has is outweighed by the legislatively mandated prohibition against impeachment by prior acts of misconduct. To allow such a question for this purpose, over objection, is error. To the extent they are in conflict, the McCray line of cases, including Smith, Feather, Myers, supra and Sanford v. State, 120 Tex.Crim. 249, 46 S.W.2d 307 (1932), are overruled.

Turning now to the case at bar, the complainant was the thirteen year old adopted daughter of appellant. Complainant’s mother and appellant were divorced and appellant had remarried. Complainant continued to visit appellant and spent alternate weekends with him and his present wife, Cathy Cravens, and their family.

Appellant alleges in his first and second grounds of error that the trial court erred in allowing the prosecutor to improperly impeach the witness, Cathy Cravens, by asking her if she was a common prostitute and not being bound by her negative answer.

Cathy Cravens was called as a defense witness and testified regarding the relationship between the complainant, complainant’s mother, and appellant. Her testimony established the fact that there was extreme animosity between the family of the complainant and the family of the appellant. Indeed, this animosity reached such a degree that a fight occurred in the hall outside of the courtroom between defense and prosecution witnesses. She also testified regarding specific events that occurred on or about the time of the alleged offenses, the proximity of the sleeping quarters at their home, sleeping arrangements at the motel they used on visits to the beach, and the inability of the appellant to commit the acts alleged by the complainant.

Germane to appellant’s contention that this chief defense witness was improperly impeached, the record shows the following occurred during the cross-examination of Cathy Cravens:

“Q. Isn’t it true, Ms. Cravens, that you have worked as a common prostitute?
“MR. CONKLIN: I would object to that and ask the Court to remove the jury.
“THE COURT: Would you wait out in the jury room, please, ladies and gentlemen?
(At this time the jury is retired to the jury room and the following proceedings are had out of the presence of the jury.)
“MR. CONKLIN: Judge, my objection is that he is going into a rap sheet here and he is asking her if she worked as a common prostitute. That evidence is not admissible. He can ask her if she was convicted of anything, but he is going into a rap sheet and showing it to the jury in an attempt to inflame their minds and infer that she has been convicted of something. He is only inferring these things to inflame the minds of the jury.
“THE COURT: For what purpose are you offering this testimony?
“MR. EGGLESTON: Impeachment. To impeach this witness’s character showing moral turpitude.
“THE COURT: The Court will overrule the objection.
“MR. CONKLIN: May I see those eases he handed you, Judge? I’d like to know what he wants to impeach her on.
“THE COURT: Read that case. The Court of Criminal Appeals held that you could ask the witness that. In view of the facts in this case, I rule that the testimony is admissible. In view of her testimony—
“MR. CONKLIN: This is a 1931 case. From this particular case, the facts do not apply to this case here at all. The only question the prosecutor ought to be able to ask Ms. Cravens is if she has ever been convicted of a felony or a misdemeanor involving moral turpitude during the past ten years.
“THE COURT: The court will overrule the objection. Bring in the jury.
“MR. CONKLIN: We would except and respectfully move for a mistrial.
“THE COURT: Overruled.
“MR. CONKLIN: Before we bring the jury in, would you instruct the prosecutor not to pull the rap sheet up in front of the jury?
⅜ ⅜ ⅝ !⅜ #
“Q. Inasmuch as my last question to you was not answered or was at least not audible, I would ask if you would respond to the same question in the same way?
“A. I said no, I was not.
“Q. Well let me ask you this. If in fact somebody has worked as a prostitute, they do develop a sense of acting, do they not?
⅜ # s}s ⅜ sjc *
“Q. That’s part of the craft, isn’t it, Ms. Cravens?
“A. I don’t know.
“Q. I’m bound by your answer. I couldn’t disprove your answer under the law, can I?
“A. No, sir.

Though proffered by the prosecutor for “impeachment,” the judge clearly relied on Sanford, supra, which relies on the McCray line of cases discussed throughout this opinion. Thus, it is clear that the trial judge allowed the question for purposes that we have deemed improper.

For the reasons given above, we hold that this question was clearly improper and constituted error. The question of whether this constituted harmful error was not, understandably, briefed in the court of appeals nor was it a part of that court’s decision being reviewed in this Court. This cause, therefore, will be remanded to the court of appeals for a determination of the harmfulness of this error.

In his third ground of error (review of which was also granted though not alluded to earlier), appellant alleges that the trial court erred in allowing the prosecutor to infer guilt to the appellant by indicating that he associated with a person of bad character, namely, Cathy Cravens. It is a rule of appellate review that the issue on appeal must comport with the objection made at trial. If the objection at trial is different than the argument on appeal, nothing is preserved for review. See Hodge v. State, 631 S.W.2d 754 (Tex.Cr.App.1982); Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982); and Nelson v. State, 607 S.W.2d 554 (Tex.Cr.App.1980). In the case at bar, the trial objection to impeachment of the defense witness did not preserve the question of guilt by association. Just as this issue was not before the trial court or the court of appeals, it is not properly before this Court.

The judgment of the court of appeals is reversed and the cause is remanded to that court for determination of the harmfulness of the trial error. It is so ordered.

CLINTON, Judge,

concurring.

Common to both civil and criminal actions is a general rule that questions as to place of residence, occupation and “background” of a witness may be asked in order to place before the jury facts from which they may judge his standing and weight to be given to his testimony. Williams v. State, 604 S.W.2d 146, 149 (Tex.Cr.App.1980); Carrillo v. State, 566 S.W.2d 902, 916 (Tex.Cr.App.1978); Elam v. State, 518 S.W.2d 367, 369 (Tex.Cr.App.1975); 37 Tex.Jur.3d 32-33, Evidence § 666. But that rule contemplates that such questions are part of a “preliminary inquiry” directed to a witness called by the party asking the questions. Williams v. State, supra; Carrillo v. State, supra; Elam v. State, supra; 37 Tex.Jur.3d, supra. They may even be leading in form, for they are but preliminary or introductory matters. Ray, Law of Evidence (Third Edition) § 576, 1 Texas Practice 533.

When the exercise is done on crossexa-mining a witness for the adverse party, however, questions about occupation or business serve a different intent and purpose: to attack the credibility of that witness. Where the effort is to discredit a witness on account of the nature of business or occupation, propriety of such a question is not determined by the balancing test suggested in the majority opinion. It is not a matter of whether probative value of knowledge of the business or occupation of a witness outweighs its prejudicial effect. The test is simply the form of the question put to the witness. A proper question is: What is your business or occupation? An improper question is one that asks if the witness is not engaged in some particular discreditable business or occupation. 37 Tex.Jur.3d 181, Evidence § 748; 25 Tex.Jur.3d 50, Criminal Law § 3336. Especially in criminal actions, a witness “may not be asked if he was in a specific business, where such business is unlawful, Ray, op. cit. § 657, 1 Texas Practice 586.

In the instant case the question posed by the prosecutor is: “Isn’t it true, Mrs. Cravens, that you have worked as a common prostitute?” It is an improper question because the inquiry is directed to a particular discreditable business or occupation that is unlawful. See authorities cited in Ray, supra, § 657, n. 56, 1 Texas Practice 586.

The contention advanced by appellant to the Court of Criminal Appeals was that the trial court erred in allowing improper impeachment of Cravens. The court of appeals rejected that contention with this:

“It is well established that a witness may be asked on cross-examination if she is a common prostitute. Sanford v. State, 46 S.W.2d 307 (Tex.Crim.App.1932); Feather v. State, 333 S.W.2d 851, 853-4 (Tex.Crim.App.1960).
In Feather, the court expressly held that a witness may be asked upon cross-examination if she is a common prostitute, where the question is asked in good faith and an affirmative answer is expected. The record shows that Mrs. Cravens had been arrested for prostitution, and that the prosecutor stayed within the proper impeachment guidelines. Appellant’s third ground of error is overruled.”

Cravens v. State, 663 S.W.2d 668, 673-674 (Tex.App.—Houston [1st] 1983).

Thus implicated is another general rule of impeachment: that a crossexaminer may ask an adverse witness “any question that tends to impair the force of his testimony, by discrediting him, notwithstanding that the question also tends to degrade the witness,” 37 Tex.Jur.3d 162, Evidence § 737. That which the court of appeals found to be “well established” is derived from such rule, but the most recent case it cited in support is Feather, supra. One digest, 51 West’s Texas Digest 2nd, “Witnesses” § 344(2), indicates there has not been an opinion on the point since then, and Shepard’s Texas Citations shows that Feather has not been cited for that proposition until Mendieta v. State, 659 S.W.2d 489, 491 (Tex.App.—Port Worth 1983), pending on grant of review, and by the court below in the instant cause.

In Stayton v. State, 32 Tex.Cr.R. 33, 22 S.W. 38 (1893), the accused sought to prove through crossexamining a witness for the prosecution that she “had no legitimate occupation, was a common prostitute, and made her living in that way;” the State objected and the testimony was excluded. Writing for the Court, Judge Davidson upheld that ruling because relevancy of the proposed testimony was “not apparent” in that the bill of exception did not state the object or purpose to be attained, but on the face of what was presented succinctly stated:

“It could not be used solely for the purpose of disgracing the witness in the eyes of the jury. It was not impeaching testimony.”

Under circumstances prescribed by every code of criminal procedure, from article O.C. 688 through Article 38.28, a party has been allowed to attack testimony of his own witness in any manner except showing “bad character.” However, until Article 38.29, the same codes were “silent as to methods by which one may attack the credibility of a witness offered by the opposing party,” referring the courts instead to “the rules of evidence known to the common law for guidance.” Carroll v. State, 32 Tex.Cr.R. 431, 24 S.W. 100 (1893). See O.C. 638 and its successors through Article 38.01, Y.A.C.C.P.

In Carroll v. State, supra, the Court examined common law on “a subject of much opposition and discussion; that is, whether a witness can be compelled to answer a question degrading him, collateral to the main issue, but relevant to his credit,” and found “the authorities cannot be reconciled.” In that circumstance the Court stated:

“We may, therefore, follow the authorities whose reasoning appeals strongest to our judgment, and adopt the rule which tends to elucidate the truth, which is the object of all rules of evidence.” 24 S.W. at 100-101.

In the particular class of “impeachment” at issue here, taken from an English digest of law of evidence, the rule opted for is in essence that upon crossexamination a witness may be asked questions that tend “to shake his credit by injuring his character,” and may be compelled to answer “however irrelevant to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge.” Ibid. Thus, the Court concluded that there was no error in allowing the State to prove from a witness testifying for accused that the witness was then under indictment for theft. Id., at 102.

Building on Brittain v. State, 36 Tex. Cr.R. 406, 37 S.W. 758 (1896), which in turns stands on Carroll, supra, in this State the case which first approved the kind of “impeachment” in question is McCray v. State, 38 Tex.Cr.R. 609, 44 S.W. 170 (1898). Reasons making it the rule were given by Judge Henderson, viz:

“In common experience, it is known that persons who are so morally degraded as to ply their vocation as common prostitutes are not on a plane with the mass of people who follow legitimate and honorable vocations, in the matter of integrity. As a general rule, they are no more capable of telling the truth than one who has been convicted of a felony, or of some misdemeanor involving moral turpitude, and they are no more worthy of belief than such a one; and we see no good reason, when a witness is tendered by either party, and testifies as to some material issue in the case, why it should be [sic] permitted, on cross-examination, to prove he follows some illegal or disreputable vocation for a living. As for that matter, we think it is within the sound discretion of the court, always, on the crossexamination of a witness, to permit to be shown the calling or business followed by such witness, his residence, etc. [Excerpt from Wilbur v. Flood, 16 Mich. 40-43 (cited in Thomp. Trials, p. 404) omitted.]”

Id., 44 S.W. at 171. Permission was limited, however, to terms of the grant, for the Court added:

“While we agree to the rule that a witness on crossexamination can be interrogated as to matters which involve moral turpitude, either on account of conviction for crime, or on account of some avocation, yet we would not be understood as holding that a witness, on such cross-examination can be contradicted or impeached in regard to such matters, nor that other witnesses may be called originally to prove such matters against a witness. As stated by the authorities, this would involve a trial of collateral issues, and would often prove interminable. And we hold that the court did not err in excluding the witnesses called to prove that the state’s witnesses were common prostitutes.”

Id., 44 S.W. at 172.

Though the Court did not then expressly say so, it would follow that “the party asking the question is bound by the answer given.” Sanford v. State, 120 Tex.Cr.R. 249, 46 S.W.2d 307, 308 (1932). Without citing any authority for support, in Feather v. State, supra, the Court added a further condition — “only where the question is asked in good faith and an affirmative answer is expected,” id., at 854. So, there the matter stood in 1960—and stands today.

Today the majority undertakes a reanalysis, resorts to a “balancing test” and concludes that on the issue of credibility of a witness “whatever probative value knowledge that the witness is a common prostitute has is outweighed by the legislatively mandated prohibition against impeachment by prior acts of misconduct.” The plain connotation in the precise question the prosecutor posed to Mrs. Cravens is that she had committed but had not been convicted of prior criminal offenses of prostitution, denounced by V.T.C.A. Penal Code, § 43.02(a). Earlier for purposes of impeachment that fact could be shown by introducing relevant charging instruments. Hogue v. State, 155 Tex.Cr.R. 310, 234 S.W.2d 687, 689 (1950); Carroll v. State, supra. But more than thirty years ago, and perhaps in the wake of Hogue, supra, the Legislature limited that practice to instances of a final conviction, suspended sentence or unexpired probation. See Acts 1951, 52nd Leg., ch. 458, p. 814. Those limitations were carried forward in 1965 through Article 38.29, V.A.C.C.P. Thus, neither a “balancing” nor any other kind of test is needed to determine whether to enforce a clear legislative prohibition.

Nor is there any indication that in allowing the question the trial judge applied any such “balancing test.” When asked the purpose of his proffer the prosecuting attorney replied, “Impeachment. To impeach this witness’s character showing moral turpitude.” The court promptly overruled the objection. Yet, ordinarily general bad moral character is not provable to impeach a witness. Shannon v. State, 567 S.W.2d 510, 514 (Tex.Cr.App.1978); Ray, op cit, § 645, 1 Texas Practice 572. Nor may such an inquiry be addressed to a witness for purposes of impeachment. Leal v. State, 614 S.W.2d 835, 837-838 and n. 3 (Tex.Cr.App.1981). Ray, op cit, § 647, 1 Texas Practice 573-574. The “only exception” is the question of a female witness on crossexamination as whether she is a common prostitute, and even then the questioner is bound by her answer. Id, n. 7.

The decision of the Court relied on by the prosecutor and the trial judge in this cause, Sanford v. State, 120 Tex.Cr.R. 249, 46 S.W.2d 307 (1932), correctly found:

“It has long been the rule in this court that a witness may be asked on cross-examination is she is a common prostitute, and that the party asking the question is bound by the answer given, and cannot call other witnesses to impeach her testimony or disprove her answer. [Citing McCray v. State, supra, and a host of its progeny.]”

However, as demonstrated ante, McCray goes back to Carroll v. State, supra, and the perception of the Carroll Court of “the teaching of human experience” required it to dispute the leading opinion of the Supreme Court of Texas in Boon v. Weather’s Adm’r, supra, at 678 ff., in order to opt for a common law rule which led to its conclusion that there was no error in allowing the State to prove from a defense witness that he was then under indictment for theft. That the conclusion has since been rejected by legislative prohibitions in predecessors to Article 38.29, supra, strongly suggests that the rule itself was rejected as well.

Certainly the primary rationale espoused by the McCray opinion for extending the common law rule fashioned by Carroll is not valid in any other context. What was considered by judges before the turn of the century as “common experience” is not necessarily a verity today. Without some fresh indicia of support for the former proposition, it is an assault upon personal dignity of a witness giving testimonial evidence under oath to “shake his credit by injuring his character” through prying questions about sexual behavior, conduct or activities which, though deemed offensive by some, have not yet been prosecuted to final conviction. Randolph v. State, 499 S.W.2d 311, 313 (Tex.Cr.App.1973); see Brown v. State, 168 Tex.Cr.R. 67, 323 S.W.2d 954, 956-957 (1959) and Thrash v. State, 482 S.W.2d 213, 214 (Tex.Cr.App.1972).

The courtroom is not the place to stage a play that may be moralistic only in the eye of a beholder. McCray is an anachronism; its force and effect have evaporated in time.

For reasons given I concur in the judgment of the Court.

TEAGUE, J., joins.

      . Repealed by Acts 1983, 68th Leg., p. 5321, eh. 977, § 12, effective September 1, 1983.

      . See also, Conway v. State, 33 Tex.Crim. 327, 26 S.W. 401 (1894), which held that, upon cross-examination, the State could ask a defense witness if he was a confidence man, followed the occupation of working the knife racket, and was a common thief. “But, if [the witness] though compelled to answer the questions, should deny that he pursued such occupations or was a thief, the State would be at its end ...”

      . Article 38.29, V.A.C.C.P., states in pertinent part:
      “The fact that a defendant in a criminal case, or a witness in a criminal case, is or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired.”

      . Article 38.29, V.A.C.C.P., 1965, set out in n. 1, finds its origins in Art. 732a, V.A.C.C.P., 1925, added by Acts 1951, 52nd Leg., p. 814, ch. 458, § 1, which read as follows:
      "The fact that a defendant in a criminal case, or a witness in a criminal case, is, or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired.”

      . In fact, all other occupations which de facto reveal prior acts of misconduct seem already to be subject to a different rule of admissibility.
      "A witness for the state or for the accused may be asked “What is your occupation?’ though his occupation, whether known to the cross-examiner or not, is such that the jury will distrust his testimony. However, if instead of asking the witness what his occupation is, the cross-examiner should ask him if he is not engaged in some named discreditable occupation, the question is improper.” 25 Tex.Jur.3d, Criminal Law, § 3336 (1984).
      As stated in Ray, Texas Law of Evidence (Texas Practice 3rd ed. 1980), § 657, 1 Texas Practice 586:
      “In both civil and criminal cases a witness may be asked what occupation he pursued or in what business he was engaged. But in criminal cases it seems that he may not be asked if he was in a specific business, where such business is unlawful.”
      See Cadle v. State, 122 Tex.Crim. 595, 57 S.W.2d 147 (1932), which disallowed the question "[a]re you a bootlegger?"

      . Though the appellant’s objection was not to the form of this question, we note that it is improper. See footnote 5.

      . Emphasis in this testimony is supplied by the writer of this opinion.

      . Apparently Sanford v. State, 120 Tex.Crim. 249, 46 S.W.2d 307 (1932). As reported in the Southwestern Reporter, a 1931 case fronts the page of Sanford applying to the question asked.

      . This statement by the prosecutor clearly implies that there is more he would like the jury to hear and is an improper comment.

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

      . Had the question been "Mrs. Cravens, what is your occupation?” and she had answered "common prostitute,” we would be confronted with a different problem — one we need not address today.

      . Article 38.01 provides:
      “The rules of evidence known to the common law of England, both in civil and criminal cases, shall govern in the trial of criminal actions in this State, except where they are in conflict with the provisions of this Code or of some other statute of the State.”

      . Noting the Supreme Court of Texas had said in Boon v. Weather’s Adm'r, 23 Tex. 675, 684 (1859), that one of vicious character “may still preserve the priceless virtue of truth, though every other virtue has gone," the Court declared that proposition so against “the teaching of human experience ... as should require the fact to be affirmatively shown.” Its own view was that since “[a]mong the dissolute and degraded, we do not naturally seek or expect to find this best characteristic of manhood), wjithout proof to the contrary, a jury may fairly assume that from immoral and criminal character truth has fled, with other virtues.” 24 S.W. at 101.

      . Though what has been quoted above and the excerpt would later be relied on to find no error in allowing the State to ask on crossexamination of a witness who had said she was living with her three children, whether she had ever been married, Mobley v. State, 89 Tex.Cr.R. 646, 232 S.W. 531, 534, 535 (1921), the Court came to understand that asking a female witness on crossexamination if she is not a common prostitute is permissible "upon the ground that the history, occupation, etc. of a witness are always legitimate subjects of investigation. Underhill’s Cr. Evidence (3d Ed.) § 387.” Yeager v. State, 96 Tex.Cr.R. 124, 256 S.W. 914, 915 (1923).

      . "[T]hat a lack of veracity does not so consistently coincide with a bad general character, as to make proof of bad general morals persuasive of bad veracity ... appears to be the soundest view and in this country, the great majority of jurisdictions, including Texas, exclude evidence of general moral character.”


author: W.C. DAVIS, Judge. TEAGUE, Judge, CLINTON, Judge,

text:
    Richard Scott KEADY, Appellant, v. The STATE of Texas, Appellee.
    No. 62147.
    Court of Criminal Appeals of Texas.
    March 27, 1985.
    Timothy A. Tyler, Bellaire, for appellant.
    Carol S. Vance, Former Dist. Atty., Larry P. Urquhart, Former Asst. Dist. Atty., John B. Holmes, Jr., Dist. Atty., Roberto Gutierrez and James M. Wilkinson, Asst. Dist. Atty’s, Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W.C. DAVIS, Judge.

A jury convicted appellant of burglary of a habitation and assessed punishment, enhanced by one prior felony conviction, at 50 years’ confinement.

Appellant contends that the trial court erred in overruling his motion for new trial, which was based upon alleged jury misconduct, and in denying his motion to quash the indictment.

The jury misconduct at issue revolves around the jurors’ discussion of parole. At the hearing on the motion for new trial, five jurors, one for the defense and four for the State, testified about the jury’s discussion at the penalty stage of the trial.

Juror Cunningham testified that she had been the foreman of the jury in appellant’s case. She said that after the jury retired to decide punishment, she read the court’s charge to the jurors, including the part that instructed the jurors not to discuss or consider parole or the possibility of parole. An initial vote on punishment was taken, which showed Cunningham and juror Gui-dry voting for 15 years, juror Eastepp voting for 99 years, and everyone else voting for around 60 years.

Cunningham said that parole was mentioned several times and each time it was mentioned she instructed the jurors not to discuss it. She testified that one of the jurors said that a man sentenced to life in prison could be eligible for parole in 12 years, and that another juror said that if a sentence of 99 years was imposed a man could be eligible for parole in 7 years.

Cunningham admitted that she knew that parole existed. She said that it seemed to be common knowledge among the jurors that parole existed. However, she believed the statements concerning the 12 and 7 years because they were so specific.

Cunningham testified that juror Lampton told her that if a mistrial resulted from a hung jury, appellant would walk out free. Cunningham interpreted this to mean that appellant could not be retried, although that possibility was never explicitedly mentioned. Because of this statement and the parole discussions she changed her vote to 50 years, which was the sentence eventually imposed upon appellant.

Juror Lampton testified that parole was mentioned casually several times and that each time it was mentioned someone said that they were not supposed to talk about it, and the discussion would end. He said that no one professed to know what the parole laws were and that the 12 and 7 years mentioned were “guesstimates” and not facts, because nobody really knew. Lampton also said that there was a discussion with Cunningham to the effect that if they assessed appellant 50 years, they had to look at it as if he would be in prison for fifty years. The jurors actually calculated how old appellant would be at the end of the fifty years in prison. Lampton said that Cunningham was asked specifically if she could give 50 years as her verdict. She said she could do so.

Lampton testified that Cunningham mentioned the possibility of a hung jury at a time when the jury was deadlocked. He told her “... something ... in effect, well then, would you want him to walk out of here free. And she said no and then we went on.” He said he never implied in any way that appellant would not be retried again, and that impression was not discussed.

Juror Guidry testified that he had initially voted for 15 years’ confinement, but had changed his vote to 50 years’ after discussion of the facts and circumstances of the case. Guidry was aware that parole existed. He said that parole was discussed several times, and that each time it was mentioned somebody would remind them they were not supposed to discuss it. A couple of people expressed opinions as to how long someone would serve on a 99 year or life term, but no one really knew the parole laws.

Guidry also said that he recalled some mention about a hung jury, but it was unimportant to him or mentioned so little that it did not make any impression. He testified that Cunningham was specifically asked if she could agree to the 50 year verdict and she said she could.

Juror Eastepp was the third juror called by the State. He said that parole was mentioned from time to time during the deliberations, but that each time it was mentioned someone would remind the jurors that they were not to discuss it. Eas-tepp admitted he had made a statement that he had heard that a person sentenced to life would be eligible for parole in 12 years. However, he said that he did not know about parole eligibility. Eastepp testified that one of the jurors emphasized that, when they arrived at a final verdict, they would consider that sentence assessed as the time appellant would actually serve.

Eastepp also heard some mention about a hung jury, but he did not remember what the statement was and was not influenced by the remark.

The last juror called by the State was Crellin. He testified that parole was discussed several times and that each time someone admonished the jurors not to discuss it. Crellin also testified that they discussed the fact that the 50 years had to be considered as straight time and that parole could not be considered. He said that this was said specifically to Cunningham and that she said she would abide by the 50 year verdict.

Crellin said that nobody had any definite information or knowledge about parole, but everyone seemed to know it existed.

In Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984) this Court re-adopted the five-prong test of pre-Heredia cases to determine whether or not a jury’s discussion of the parole law constitutes reversible error. To show reversible error there must be:

“(1) a misstatement of the law
“(2) asserted as a fact
“(3) by one professing to know the law
“(4) which is relied upon by other jurors
“(5) who for that reason changed their vote to a harsher punishment.”

Sneed, supra at 266. This test applies to cases under either section 7 or section 8 of Art. 40.03, V.A.C.C.P.

In applying this test to the instant case we find that: The existence of parole was common knowledge among the jurors; parole was discussed several times during the deliberations, and each time it was discussed Cunningham told the jurors they were not supposed to discuss it; of the five jurors who testified at the hearing, only Cunningham said that she relied on the parole discussion and changed her vote because of the discussion about a hung jury and about parole; none of the jurors professed to know the law relating to parole and none of the jurors expressed their views as anything more than speculative opinion or “guesstimates”, although Cunningham indicated that she thought the statements were true because they were so specific. Cunningham also admitted that she disregarded the very instructions which she, as foreman, had read to the jury, and of which she constantly reminded the other jurors, namely, that parole should not be considered.

The testimony of the other jurors contradicts Cunningham’s version of the discussion, to some extent. The other four jurors who testified stated that they discussed the fact that the 50 year term had to be considered as straight time, and that Cunningham was specifically asked and agreed to that.

At the hearing, Cunningham admitted that she thought appellant had received a more severe sentence than he deserved and that was one reason why she was testifying.

Issues of fact involving jury misconduct raised at a hearing on motion for new trial are for the determination of the trial judge, and there is no abuse of discretion in overruling the motion when there is conflicting evidence. Sneed, supra; McCartney v. State, 542 S.W.2d 156 (Tex.Cr.App.1976). All of the jurors who testified, except Cunningham, said that no juror professed to know the law or asserted, as fact, an opinion about parole. The trial judge apparently chose to believe the other jurors. Thus, although the statements made about parole were not accurate, they were “guesstimates” and not statements made by one professing to know the law. Therefore, at least two of the five prongs of the Sneed test, (nos. 2 & 3), have not been met in regard to the parole discussion.

Cunningham said she changed her vote because of the parole discussion and the hung jury comment. While it may not be improper, under 40.03, (7) or (8), V.A.C. C.P., for the judge or another juror to encourage a jury to continue deliberating by telling them that a mistrial will result, it would certainly be improper and incorrect to tell them that the defendant could not be retried in such event. Cunningham said that she interpreted Lampton’s comment about a hung jury to mean appellant could not be retried. Lampton testified that he never stated nor implied that appellant could not be retried. The other four jurors who testified either did not recall the comment about the hung jury or did not interpret it to mean that appellant could not be retried. The remark was apparently open to' differing interpretation — Lamp-ton’s and Cunningham’s. The trial judge resolved the conflict or ambiguity against appellant. Where questions of fact are at issue, the trial judge is the final word, absent abuse of discretion. McCartney, supra. The ground of error is overruled.

In his second and final ground of error, appellant contends that his motion to quash the indictment should have been granted. The indictment alleged, in pertinent part, that appellant "... did then and there unlawfully with intent to commit theft, enter a habitation....” Appellant contends that a culpable mental state must be alleged in connection with the “habitation” element of the offense. He argues that Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976) is not controlling because no motion to quash was involved there. We disagree.

The rationale of Teniente applies whether the allegation be one of fundamental error or non-fundamental error. The conduct that is the gist of the offense of burglary is the entry with the requisite intent, not the physical act of entering. See Denison v. State, 651 S.W.2d 754 (Tex.Cr.App.1983). The ground of error is overruled and the judgment is affirmed.

MILLER, J., concurs in result.

TEAGUE, Judge,

concurring.

When one of our citizens has established that he did not receive the fair and impartial trial by jury which the Constitution of this State guarantees him, as to both guilt and the assessment of punishment, and he receives no relief on appeal, it should be an extremely sad day for all Texans. Today, all State flags should be lowered to half-mast.

In this instance, Richard Scott Ready, appellant, has established that he did not receive the fair and impartial trial by jury the Constitution of this State guaranteed him — on the issue of what punishment the jury should have assessed. But he receives no relief. Why is this?

It is because of this Court’s majority decision of Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984), which is authority for overruling appellant’s ground of error, that because of jury misconduct that occurred in this cause he was denied a fair and impartial trial by jury on the issue of punishment. I am therefore compelled and constrained, because of the doctrine of stare decisis, to concur in the result the majority reaches.

However, the facts of this cause truly reflect why Sneed v. State, supra, should be expressly overruled.

The record reflects the following:

Most, if not all, of the jurors in this cause ignored and violated the trial court’s oral and written instructions that they were not to discuss among themselves how long appellant would be required to serve whatever punishment the jury assessed. The record clearly reflects that the jurors, when they were deliberating on what punishment to assess appellant, many times discussed among themselves how long appellant would be incarcerated before he might be released on parole. The jury foreperson’s testimony was undisputed, un-refuted, and unrebutted. She testified that because she relied upon the discussions the other jurors had regarding when appellant might be released on parole, she eventually agreed to the 50 year sentence that was assessed by the jury. By the express provisions of Art. 40.03 (7), V.A.C.C.P., also see Garza v. State, 630 S.W.2d 272 (Tex.Cr.App.1982), this constituted the receipt of other evidence which had not been admitted during appellant’s trial; thus, appellant was entitled as a matter of law to a new trial. But in Sneed v. State, supra, a majority of this Court, poaching in a field reserved by the Constitution to the Legislative Department of this State, overruled what the duly elected members of the Legislature had enacted.

In Salcido v. State, 167 Tex.Cr.R. 173, 319 S.W.2d 329 (Tex.Cr.App.1959), Judge Davidson of this Court stated the following, which words are applicable to this cause: “The action of the jury ... is susceptible of but one construction, that being that such action was a revolt by the jury against the commutation and good-behavior laws of this state and a denial to this appellant of the rights given him by those laws. The jury just simply did not want this appellant to receive the benefit of those laws, and took it upon themselves to fix a punishment that would prevent his receiving such benefit. Thus, the very body that were called upon to enforce the law and to preserve the right of trial by jury openly circumvented and took it upon themselves to deprive the appellant of his rights under the law.”

I file this concurring opinion solely to make it clear to all that it should be a sad day, not only for all Texans, but especially for those jurors who sat in this cause and violated his or her oath of office-to such an extent that appellant was denied that precious right which the Constitution of this State grants to all of his, namely, the right to receive a fair and impartial trial by jury-on guilt as well as punishment-which right, as to the proper assessment of punishment, appellant has yet to receive.

CLINTON, Judge,

dissenting.

That jurors did receive other evidence and did engage in misconduct during their deliberations in the jury room cannot be seriously disputed. Just that which the opinion of the Court summarizes on page 759 demonstrates that they ignored and disregarded instructions of the trial court intentionally, knowingly and recklessly— and, yes, repeatedly. Yet, appellant is denied a remedy because a majority of this Court has made it virtually impossible for him and any other accused similarly situated “to show reversible error.”

Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984), sanctions a violation of their oath by jurors, Article 35.22, V.A.C.C.P., and an infringement of the doctrine of separation of powers by the jury as a body. Sneed v. State, supra, at 267-269 (Odom, J., dissenting), and at 269-270 (Clinton, J., dissenting).

The situation is reminiscent of days when participants in the criminal justice system pretended that parties did not engage in plea bargaining, so they continued the practice without let or hindrance by statutory regulation or rule. Similarly, knowing that jurors are wont to “discuss” the law of parole, even when shown on the record that they have in fact done so judges look the other way lest they see that what was said is other evidence and the discussion is misconduct. And if the fact that there was discussion of parole cannot be thus avoided, then the ambit is to find “conflicting evidence” in the record of hearing of motion for new trial, and solemnly pronounce that “the trial judge is the final word, absent abuse of discretion,” Opinion, p. 760. Call the next case!

Once it was accepted that parties were to be trusted to deal with each other at arm’s length, the plea bargaining process was given some measure of respectability by legislative recognition and direction. See Articles 23.16(a)(2) and 44.02, V.A.C.C.P. Let us accept that jurors are reasonable and sensible persons who can be trusted to follow their oath and instructions from the trial court when they are made to understand the reason they are not to discuss parole.

There is a school of thought that jurors fail to take seriously the stock instruction not to consider or discuss possible action of the Board of Pardons and Paroles because they do not understand the policy behind it and, indeed, may well believe that the intent of such an instruction is to hide something from them. (“Well, outside we read and hear about it all the time, so why does the judge tell us not to talk about it in the juryroom?”) It follows that jurors would be better informed and equipped to remove operation of parole laws from consideration during their deliberations if and when they are given a common sense reason for doing so. And the most practical reason from the perspective of a layman is that no one in this State can predict when an inmate will be released on parole, or whether one will ever be released on parole at all!

When the pattern instruction is given the trial court should add an explanation of the reason the matter should not be considered, somewhat along the following lines, viz:

“Further you are instructed that the determination to grant parole, if and when made, rests on many facts and events not now known, for the simple reason that they have not yet occurred at time of trial. Since it cannot be predicted at this time when or even whether parole will be granted, you are not to mention, refer to, discuss or consider how long the defendant might be required to remain confined to serve the' punishment you assess and the sentence the court will impose. Such matters come within the exclusive jurisdiction to be exercised at some time in the future by the Board of Pardons and Paroles, and to some extent by the Governor of this State, and they are beyond the province of courts and, therefore, of the jury as well.”

See Heredia v. State, 528 S.W.2d 847, 853, n. 4 (Tex.Cr.App.1975).

Against a burden of prospective hearings on new trial, appeals, reversals, retrials and successive appeals, the potential benefits of giving a jury accurate and complete information as to the truth of the matter loom large, and any additional chore imposed on administering the criminal justice system at the trial level is minuscule.

Because by adhering to Sneed the majority will not lead the way out of this morass of jury misconduct, I dissent.

      . Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App. 1975).

      . Compare an "Allen” charge which informs the jury that a hung jury will result in a mistrial. Atrevalo v. State, 489 S.W.2d 569 (Tex.Cr.App. 1973). The "Allen” charge usually also informs the jury that the defendant can be retried. The "hung jury” remark, alone, is not improper.