author: JUNELL, Justice.

text:
    Ricky Ricardo JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-495CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 5, 1984.
    Discretionary Review Refused Oct. 24, 1984.

      Randy Schaffer, Houston, for appellant.
    James Brough, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   JUNELL, Justice.

This appeal is from a conviction of injury to a child pursuant to TEX.PENAL CODE ANN. § 22.04 (Vernon Supp.1982-1983). Appellant pled not guilty. The jury found him guilty, and the court assessed punishment at thirty-five years confinement in the Texas Department of Corrections. We affirm.

Appellant lived in a two-bedroom apartment with Betty Rose Bankhead and her three minor children, one of whom was the victim, five-year-old Lakeasha Bankhead.

On January 20,1983, Ms. Bankhead went to the home of a Reverend Ivory to collect money due her. She left her children in appellant’s care and in good health.

Ms. Bankhead did not return until about 2:15 a.m. the next morning, January 21, 1983. Appellant admitted that he had whipped Lakeasha because she had urinated in the bed. Ms. Bankhead checked on Lakeasha, who was in bed, but did not awaken the sleeping child. About thirty minutes later the child, crying softly, came to her mother’s bedside. She told Ms. Bankhead she could not keep her eyes open. Ms. Bankhead got up and noticed Lakeasha’s eyes were swollen, and her left eye was red. While appellant was asleep Lakeasha confided to her mother that appellant had whipped her.

Lakeasha’s brother Cleshaun testified that appellant had not actually whipped Lakeasha in the usual manner but had forced the girl to make her hands into fists and hold them in front of her eyes. He then hit his hand “real hard” against her fists, thus causing her to strike her own eyes. Crying, she fell down. Appellant made her shut up, get up, and sit on his lap. He then pushed her down again.

About 6:00 p.m. that evening appellant, Ms. Bankhead, the three children, and a friend, Karelia Davis, left to walk to a surprise birthday party. Appellant and the children arrived at the party a few minutes ahead of Ms. Bankhead and Davis. One of Lakeasha’s front teeth had been knocked out. Cleshaun testified that appellant had pushed Lakeasha down during the walk, causing her tooth to come out.

About an hour later Ms. Bankhead and appellant argued about his whipping the children. Appellant then struck Ms. Bank-head. A little after midnight Ms. Bank-head discovered appellant, who was again infuriated with Lakeasha’s bedwetting, whipping the nude girl with a wide belt. Around 3:00 a.m. January 22, 1983, Ms. Bankhead, while checking on her children, realized that Lakeasha was limp and would not awaken. The child was rushed by ambulance to Hermann Hospital. She never regained consciousness and was pronounced dead the evening of January 22, 1983.

Appellant urges five grounds of error. In ground of error one he contends that the evidence was insufficient to establish that he caused serious bodily injury to the child by hitting her with his hands. By means of a rather convoluted process of reasoning, appellant seems to be suggesting that because his hand did not touch her face, he was not guilty of causing serious bodily injury.

However, according to the testimony of Dr. Aurelio Espinóla, Lakeasha’s death resulted from a subdural hemotoma. Even though Lakeasha’s condition was complicated by pneumonia, Dr. Espinóla stated that, in his best opinion, Lakeasha would have died even without having contracted pneumonia. .

TEX.PENAL CODE ANN. § 22.04 (Vernon Supp.1982-1983) indicates that a person commits the offense of injury to a child “if he intentionally ... engages in conduct that causes to a child who is 14 years of age or younger ...:

(1) serious bodily injury;
(2) serious physical or mental deficiency or impairment;
(3) disfigurement or deformity; or
(4) bodily injury.

Testimony by Lakeasha’s brother Cleshaun establishes that appellant intentionally forced Lakeasha to hold her fists before her eyes and then with his hand pounded her fists into her eyes. Doctor Espinóla testified that such an act could cause the subdural hematoma and Lakeasha’s resulting death. We hold that the evidence was sufficient to prove that appellant intentionally caused serious bodily injury, and we overrule appellant’s first ground of error.

In his second ground of error appellant argues that the trial court committed reversible error by permitting the state to impeach its own witness despite the absence of any evidence establishing surprise on the state’s part or injury to its case. The witness in question was Ms. Bankhead, the child’s mother. When first asked if appellant had ever told her he had slapped or hit Lakeasha in the face, Ms. Bankhead replied, “No, he didn’t.” The prosecutor then produced State’s Exhibit 10, a statement Ms. Bankhead had previously given to the Houston Police Department. After reading the statement to refresh her recollection, Ms. Bankhead was asked, “Did Ricky tell you anything about the location or where on Lakeasha he had hit her?” She responded, “On the face.” We do not view the above as a situation of impeachment but rather one of refreshing the memory. See Morgan v. State, 491 S.W.2d 903 (Tex.Crim.App.1973).

The Morgan case involved a complaint, in a robbery by assault case, that the state had been permitted to impeach one of its witnesses, a Billie Jean Mitchell, by improperly using her prior affidavit. During the state’s direct examination of Mitchell, she stated she could not recall if she had talked to Morgan about the robbery of a Gordon Jewelry Store. Counsel for the state was allowed to let her silently read a written statement she had given earlier. The court of criminal appeals held that the occurrence was “an attempt to refresh witness’ memory and not in the nature of impeachment.” 491 S.W.2d at 906. The court cited 62 TEX.JUR. (2d) Witnesses, § 171, (1965), to distinguish refreshing a witness’ memory and impeaching a witness. We reproduce that reference here:

It is always permissible to refresh the memory of a witness. Where he swears of his own knowledge he may refer to any thing or fact that he may choose in order to refresh his memory in regard to a matter about which he may be called on to testify. Memory may be refreshed by calling the witness’s attention to testimony previously given or to statements made by him, or by reference to records, memoranda, or other documents, or by propounding questions; and leading questions are permissible for this purpose.

We overrule appellant’s second ground of error.

Appellant contends in his third, fourth, and fifth grounds of error the trial court committed reversible error by not giving instructions on three lesser included offenses. We will address the three grounds simultaneously.

The third ground of error concerns error in the court’s refusal to instruct the jury on whether the appellant recklessly caused serious bodily injury to the child. In ground of error four appellant insists there was error in the court’s refusal to instruct the jury on whether appellant, with criminal negligence, caused serious bodily injury to the child. Appellant contends in his fifth ground of error the trial court erred in refusing to instruct the jury on whether appellant intentionally or knowingly caused the child bodily injury.

TEX.PENAL CODE ANN. § 22.04, Injury to a Child or an Elderly Individual, (Vernon Supp.1982-1983), outlines the three lesser included offenses under Injury to a Child. It reads, in pertinent part, as follows:

(b) An offense under Subsection (a)(1), (2), or (3) of this section is a felony of the first degree when the conduct is committed intentionally or knowingly. When the conduct is engaged in recklessly it shall be a felony of the third degree.
(c) An offense under Subsection (a)(4) of this section is a felony of the third degree when the conduct is committed intentionally or knowingly. When the conduct is engaged in recklessly it shall be a Class A misdemeanor.
(d) An offense under Subsection (a) of this section when the person acts with criminal negligence shall be a Class A misdemeanor.

However, a defendant is by no means automatically entitled to a court charge on a lesser included offense. Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981) set forth the procedure to be utilized in such a determination. A two-step analysis is to be used in deciding whether a charge on a lesser included offense is required. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Second, there must be some evidence in the record that if the defendant is guilty, he is only guilty of the lesser offense. After reviewing the record before us, we do not find evidence to support the notion that appellant was only guilty of a lesser included offense.

We hold that grounds of error three, four, and five are without merit and accordingly overrule them.

The conviction is affirmed.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    Donnie Stancel ANDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 07-82-0289-CR.
    Court of Appeals of Texas, Amarillo.
    April 5, 1984.
    Rehearing Denied April 24, 1984.
    Robert Blinderman, Amarillo, for appellant.
    Danny Hill, Dist. Atty., Joe W. Jernigan, Asst. Dist. Atty., Amarillo, for appellee.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.
   BOYD, Justice.

Appellant Donnie Stancel Anderson brings this appeal from his conviction, upon a plea of guilty, to burglary of a habitation and the consequent jury assessed punishment of five years confinement in the Department of Corrections. We affirm the judgment of the trial court.

Appellant asserts the trial court reversibly erred in failing to charge the jury on that portion of Tex. Code Crim.Pro.Ann. art. 42.12, sec. 6b(a), which provides that “when the court having jurisdiction of the case grants probation to the defendant, in addition to the conditions imposed under Section 6 of this article, the court may require as a condition of probation that the defendant submit to a period of detention in a penal institution to serve a term of imprisonment not to exceed 30 days or one-third of the sentence, whichever is lesser.”

The record reveals that when the proposed charge was prepared and submitted to the defendant, his objection was that “the charge does not include the condition of shock probation." While the State contends this objection was not sufficiently specific to direct the court’s attention to the vice asserted, in the context of the record, we think it sufficient to preserve the question raised for appellate review.

As authority for his assertation of reversible error, appellant cites the case of Brass v. State, 643 S.W.2d 443 (Tex.App.-Houston [14th Dist.] 1982, pet. ref.). In that case, the court held that “an accused should be entitled to have all of the allowable statutory terms and conditions of probation enumerated in the court’s charge upon a proper objection or request.” The rationale for this decision was that “terms and conditions of probation are proper for consideration by the jury in their determination of whether or not to recommend probation.”

We do not think the rule enunciated in Brass should be extended to the situation here presented. The reference in Brass was to those possible terms and conditions enumerated in sec. 6 and 6(a) of the statute which might aid the jury in making the determination in which they participate, i.e., whether or not the defendant should be admitted to probation.

Whether or not to require a period of penal confinement is, on the other hand, one that can only be made after the initial determination to grant probation. By the terms of the statute it is a decision to be made after “the defendant is granted probation” and rests solely in the discretion of the court in which the probation is pending. That being the case, an instruction as to the possibility that the court, in the exercise of that discretion might, after the granting of probation, require penal confinement, is not one that is necessary to aid the jury in deciding whether to recommend probation. The trial court did not reversibly err in failing to give the requested instruction.

Appellant’s ground of error is overruled and the judgment of the trial court affirmed.

       All references hereinafter made to sections are to those subdivisions of art. 42.12.


author: ELLIS, Justice.

text:
    John Albert SHORT, Appellant, v. The STATE of Texas, Appellee.
    No. B14-83-404CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 3, 1984.

      Janet Morrow, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Appellant, John Albert Short, appeals from a judgment of conviction of the offense of aggravated robbery. The jury found appellant guilty on a not guilty plea and assessed punishment at five years in the Texas Department of Corrections. We affirm.

Appellant brings four grounds of error on appeal. In ground of error one, appellant contends that the trial court erred in allowing the prosecutor during the punishment phase of trial to elicit testimony about early termination of probation. Ground of error two complains that it was prosecutorial misconduct to elicit testimony that the trial judge never gave probation for aggravated robbery. In ground of error three, appellant asserts that the trial court erred in allowing the jury to consider at the punishment phase of trial evidence of appellant’s prior arrest record that had been admitted during the guilt and innocence phase only for impeachment purposes. Finally, in ground of error four, appellant claims that the prosecutor improperly expressed his opinion of appellant’s guilt.

The complainant, Cheryl Hartfield Sten-son, was robbed while working at a Del Taco restaurant on January 24, 1983. Later, on February 18, 1983, she was at the jail paying a fine for her husband. While standing in line in the lobby, she noticed appellant standing in line next to her and recognized him as the man who had robbed her. She wrote a note to the clerk, telling her what had happened. A police officer came out and arrested appellant.

In ground of error one, appellant complains about the following exchange, which took place during cross-examination of appellant during the punishment phase of trial:

PROSECUTOR: Did he [defense counsel] also explain to you that the law allows for probation to be terminated at the end of two years or at one-third of the time of the probation, whichever is less?
APPELLANT: No.
DEFENSE COUNSEL: I object to that. That is not accurate. That’s up to you.
THE COURT: That will be overruled. You may proceed.
PROSECUTOR: Let me ask that question again, sir. Did your lawyer explain to you that the law allows for probation to be terminated after two years or one-third of the time of probation, whichever is less? Did he tell you that, Mr. Short?
THE COURT: Yes or no?
APPELLANT: Yes.
PROSECUTOR: Yes, he did.

Appellant claims that this line of questioning was highly improper and can be compared with prosecutorial argument urging consideration of parole law. A prosecutor may not, in his closing argument, refer to the possibility that the defendant will be paroled and thus relieved from serving the entire sentence assessed. Kearney v. State, 630 S.W.2d 934 (Tex.Crim.App.1982); Woemer v. State, 576 S.W.2d 85 (Tex.Crim.App.1979).

We disagree with appellant’s first ground of error for several reasons. First, appellant failed to preserve this error for review. After appellant’s objection was overruled, the prosecutor asked the same question again without objection. No error is presented when the same error subsequently comes in without objection. Crocker v. State, 573 S.W.2d 190 (Tex.Crim.App.1978). Appellant did not preserve this error for appeal.

Second, even if appellant had properly preserved this error for review, we do not believe that evidence of the possible effects of probation can be analogized to impermissible comments during jury argument about parole. During the punishment phase, appellant’s counsel portrayed to the jury that probation could be harsh and burdensome. Once appellant’s counsel had put this subject in issue, the State was entitled to go into it more fully even where the evidence would not ordinarily be admissible. Lucas v. State, 479 S.W.2d 314 (Tex.Crim.App.1972); Mosley v. State, 643 S.W.2d 212 (Tex.App.-Fort Worth 1982, no pet.). Furthermore, the reason that parole cannot be mentioned for the first time during jury argument is because it was never an issue during trial, and therefore, not relevant. The mention of parole during closing argument brings in unsworn testimony and facts outside the record. Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App.1973).

In our case, the State elicited testimony about probation once appellant’s counsel had opened the subject. The evidence came in as relevant, sworn testimony. We overrule appellant’s first ground of error.

In his second ground of error, appellant claims that prosecutorial misconduct occurred when the prosecutor elicited the following testimony from one of the court’s probation officers during the punishment phase of trial:

PROSECUTOR: Isn’t it true that Judge McSpadden [The Trial Judge] never gives anyone probation for armed robbery?
ANSWER: I am not sure, sir?

When a defendant is convicted of aggravated robbery, the judge may not grant probation, but when punishment is assessed by the jury, the jury may grant probation for aggravated robbery. Tex. Code Crim.Proc.Ann. art. 42.12 § 3f(a)(1)(D); Rivas v. State, 627 S.W.2d 494 (Tex.App.-San Antonio 1982, pet. ref’d). Appellant argues that the prosecutor misstated the law and caused harmful error because his statement inferred to the jury that because the judge did not grant probation for this offense, the jury should not grant probation. We disagree with appellant’s contentions.

First, appellant’s attorney failed to object to this question. In each case cited by appellant to support his contention that this statement was harmful error, trial counsel objected to the statement. See e.g. Mc Clure v. State, 615 S.W.2d 757 (Tex.Crim.App.1981); Dexter v. State, 544 S.W.2d 426 (Tex.Crim.App.1976). When no objection is made at trial, error is not preserved for review on appeal. Lopez v. State, 468 S.W.2d 365 (Tex.Crim.App.1971).

Second, even if appellant had preserved this error, the answer, “I am not sure, sir?” was not prejudicial. Finally, the charge to the jury instructed them that if they found that appellant was not a convicted felon, that they could, in their discretion, grant probation. This instruction would have cured the error if any had been caused by the statement. We overrule ground of error two.

Ground of error three alleges that the trial court erred in allowing the jury at the punishment phase to consider evidence of appellant’s prior arrest record that had been admitted during the guilt or innocence phase only for impeachment. We disagree.

During the guilt or innocence phase this testimony came in without objection; in fact, some of this evidence was elicited by appellant. At the punishment phase, the prosecutor reoffered “all the evidence offered during the guilt stage of its case in chief.” The court admitted the evidence and the State rested. Appellant then objected. An objection made after evidence is admitted is untimely and insufficient to preserve error. Rodriguez v. State, 577 S.W.2d 491 (Tex.Crim.App.1979); Bice v. State, 642 S.W.2d 263 (Tex.App.-Houston [1st Dist.] 1982).

Generally, evidence of prior arrests is not admissible at the punishment phase of trial, but when this evidence was admitted without objection at the guilt phase, its reintroduction during the punishment phase is not error. Ochoa v. State, 481 S.W.2d 847 (Tex.Crim.App.1972); See Boles v. State, 598 S.W.2d 274 (Tex.Crim.App.1980). In assessing punishment the jury may consider all evidence adduced at trial on guilt or innocence. Demouchette v. State, 591 S.W.2d 488 (Tex.Crim.App.1979). We overrule ground of error three.

Finally, in his fourth ground of error, appellant claims that during his closing argument at the guilt or innocence phase of trial, the prosecutor improperly expressed his opinion of appellant’s guilt. During this argument, the prosecutor stated:

I submit to you there is enough crime in this country [that] we don’t have to bring false charges against anybody, and I submit to you that my job is to see that justice is done.

In order to perfect an appeal regarding error in the prosecutor’s jury argument, the defendant must make a timely objection at trial; however, this objection is not necessary where the argument is so prejudicial that an instruction to disregard will not cure the harm. Romo v. State, 631 S.W.2d 504 (Tex.Crim.App.1982). Where an objection could have cured the harm, an objection is required. Hall v. State, 662 S.W.2d 37 (Tex.App.-Houston [1st Dist.] 1983, pet. ref’d). In Spaulding v. State, 505 S.W.2d 919 (Tex.Crim.App.1974), the prosecutor’s statement that “we’re not going to prosecute people who are innocent,” was cured by an instruction to the jury to disregard.

An objection was necessary to preserve the error in our case for review on appeal. Appellant failed to make an objection. We overrule ground of error four.

Accordingly, we affirm the judgment of the trial court.


text:
    YOUNG SUN LEE, Appellant, v. STATE of Texas, Appellee.
    No. B14-83-281CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 7, 1984.
    Rehearing Denied June 28, 1984.
    Discretionary Review Refused Nov. 7, 1984.

      Mary Rawlins, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Appellant, Young Sun Lee, appeals from a judgment of conviction of the offense of prostitution. Appellant was originally charged by information with prostitution in cause 693,136. On March 11, 1983, appellant came to trial for the same offense in cause 697,749. Appellant was convicted by a jury and sentenced to five days confinement and a fine of $250.00. We affirm.

Appellant brings fourteen grounds of error on appeal. In grounds of error one, two, three and five appellant alleges that the information was defective because: (1) it failed to allege the type or amount of the fee that was to be paid; (2) it failed to allege to whom the fee was to be paid; (3) it failed to allege a culpable mental state with respect to the offense; and (5) it improperly defined “deviate sexual intercourse.”

Grounds of error four and six claim that the court improperly charged the jury because: (4) the court’s charge failed to allege a culpable mental state with respect to the offense; and (6) the court improperly defined “deviate sexual intercourse.” Ground of error seven argues that a variance existed between the information and the court’s charge, because the information was in the conjunctive but the court charged in the disjunctive.

Grounds of error nine, ten and eleven attack the constitutionality of the prostitution statute, claiming that: (9) it infringes upon freedom of speech; (10) it is unconstitutionally vague, and (11) it permits conviction on the uncorroborated testimony of an accomplice.

Grounds of error twelve and thirteen attack the sufficiency of the evidence. In ground of error twelve, appellant claims that the evidence was insufficient because the State relied solely on uncorroborated accomplice testimony. Ground of error thirteen argues that the evidence was insufficient because the 1977 amendment to § 43.02 of the Penal Code allows prosecution of both parties to a prostitution offense, thus negating the rule of § 43.06 that a conviction can be based upon uncorroborated accomplice testimony.

Finally, in ground of error fourteen, appellant asserts that the trial court erred in overruling appellant’s Motion for Mistrial when the State asked questions concerning another woman apparently arrested at the same location.

Appellant was originally charged by information with prostitution in cause 693,-136. In response to the court’s granting of appellant’s motion to quash, the State filed a new information for the same offense in cause 697,749.

The State’s sole witness, Officer C.P. Gillespie of the Houston Police Department vice squad, testified that on February 10, 1983, he and Officer Rushing went to the Nagoyo Modeling Studio in Houston to investigate possible liquor violations and prostitution activity. He and Officer Rushing pushed a buzzer at the front door of the studio, and appellant opened the door. She told them in English to sit down and that she would return with another girl.

When the woman returned, the other woman told the officers that the price was $60.00 for a half hour session. Officer Gillespie gave the woman $60.00. Appellant was present during the entire conversation and exchange of money.

Appellant then told Officer Gillespie to follow her upstairs. Once in a room upstairs, appellant told the officer to remove his clothes. She then left the room. She returned, removed her clothes and began to rub against the nude officer. She asked him what he wanted and he replied that he was hoping for a “blowjob.” Appellant said, “Okay, I can do that.” She then left the room and engaged in a conversation outside with another woman.

Appellant returned and laid down in bed next to the officer. She again asked what he wanted. He replied that he wanted a “blowjob”, and she told him that it was covered in the money he had already given. She reached for the officer’s penis and began to move her head towards it. He stopped her with a story that he did not want to go through with the act because of his wife. Appellant massaged his back to fill the remaining allotted time.

The officer left and returned with uniformed officers to make the arrest. He found appellant hiding under a sink and arrested her.

Appellant testified that she did not agree to or offer sexual contact and that none occurred. The jury, however, chose to believe the officer’s testimony and found appellant guilty.

In her first and second grounds of error, appellant argues that the information was defective because: (1) it failed to allege the type or amount of fee that was to have been paid, and (2) it did not allege to whom the fee was to have been paid. We disagree.

Originally, appellant was charged in cause 693,136. The trial court granted appellant’s motion to quash the information in that cause and the State filed a new information in cause 697,749. Appellant also filed a motion to quash the second information. This motion dealt with multiple issues.

When the trial court held a hearing on this motion to quash, defense counsel said that she wished to argue only one issue in the motion. That issue was unrelated to the definition of a fee or to whom the fee was to have been paid. Defense counsel failed to bring any other portions of the motion to the court’s attention. Further, the court’s order on the motion to quash is blank and unsigned. Appellant never asked for a ruling on the remaining assertions in her motion.

Nothing is presented for review when "... the appellate record fails to show that the motion was even called to the court’s attention or that the appellant even obtained a ruling on the same.” Allison v. State, 618 S.W.2d 763, 764 (Tex.Crim.App.1981); American Plant Food v. State, 508 S.W.2d 598, 604 (Tex.Crim.App.1974). Appellant failed to preserve these grounds for review. We overrule grounds of error one and two.

In ground of error three, appellant contends that the information was defective because it failed to allege a culpable mental state with respect to the offense. The original information, which the trial court quashed, did not describe the type of deviate sexual intercourse which the State intended to prove that appellant offered or agreed to engage in for a fee.

There are two types of deviate sexual intercourse; Tex.Penal Code Ann. § 43.-01(1) (Vernon 1974); and appellant had the right to know which of the definitions the State proposed to use to describe her conduct. Gorman v. State, 634 S.W.2d 681 (Tex.Crim.App.1982).

Appellant now claims that the further detail of the information allowed the State to plead in the alternative. She claims that the jury could have found her guilty either (1) of offering to engage in sexual conduct, or (2) offering to place her mouth on C.P. Gillespie’s genitals.

The information states that appellant did “knowingly offer and agree to engage in sexual conduct ... by offering and agreeing to place her mouth on the genitals of C.P. Gillespie, for a fee.” The second phrase merely explains the first and is not an alternative plea.

The phrase “by offering and agreeing to place her mouth on the genitals” refers to and modifies “sexual conduct.” Any culpable mental state necessary for the phrase is supplied by the word to which it refers. If appellant knowingly offered and agreed to engage in sexual conduct, she necessarily knowingly offered and agreed to place her mouth on C.P. Gillespie’s genitals. See Jason v. State, 589 S.W.2d 447 (Tex.Crim.App.1979). We overrule ground of error three.

Ground of error four asserts that the trial court improperly charged the jury because the charge failed to allege a culpable mental state with respect to the offense. Appellant, however, failed to make this objection to the charge at trial. Failure to object to the charge waives all but fundamental error on appeal. Thomas v. State, 605 S.W.2d 290 (Tex.Crim.App.1980). Because appellant failed to preserve this ground for appellate review and we find no fundamental error, we overrule ground of error four.

In grounds of error five and six, appellant claims that the trial court improperly defined deviate sexual intercourse both in the charge and in the information. We disagree.

“Subject to rare exceptions, an indictment which tracks the words of the penal statute in question is legally sufficient.” Phillips v. State, 597 S.W.2d 929 (Tex.Crim.App.1980). The information in our case is legally sufficient, as is the jury charge which follows it.

Sexual conduct includes deviate sexual intercourse. Tex.Penal Code Ann. § 43.01(4) (Vernon 1974). Tex.Penal Code Ann. § 43.02 (Vernon 1974) provides that it is an offense to offer or agree to engage in sexual conduct for a fee. Tex.Penal Code Ann. § 43.01 (Vernon 1974), which defines deviate sexual intercourse does not speak to an offer or agreement. The information and charge in our case merely applied the statutory language of the definitions.

Furthermore, appellant did not make this objection to the jury charge, and therefore, preserved nothing for review. Thomas v. State, 605 S.W.2d 290 (Tex.Crim.App.1980). We overrule grounds of error five and six.

Ground of error seven contends that a variance existed between the court’s charge and the information, because the court charged that appellant could be found guilty upon a finding that she “knowingly offered or agreed to engage in sexual conduct by ... offering or agreeing and the information alleged that appellant “knowingly offered and agreed to engage in sexual conduct by offering and agreeing ...”

It is not error to plead in the conjunctive and charge in the disjunctive. Cowan v. State, 562 S.W.2d 236 (Tex.Crim.App.1978). Appellant claims, however, that because the phrase is descriptive of the offense and is an allegation of the manner and means of the offense, the State and the trial court cannot substitute “or” for “and”.

When the information alleges several ways of committing an offense, proof of any of the ways of committing the offense justifies the conviction. Zanghetti v. State, 618 S.W.2d 383 (Tex.Crim.App.1981). In our case, the offense could have occurred if appellant knowingly “offer[ed] to engage, agree[d] to engage, or engage[d]” in sexual conduct for a fee. Tex. Penal Code Ann. § 43.02(a)(1) (Vernon 1974). Proof of any of these three manners of committing the offense was sufficient to support the conviction; therefore, the court did not err by charging the jury in the disjunctive. We overrule ground of error seven.

In ground of error eight, appellant alleges that the evidence was insufficient to show that the sexual activity was for a fee. We disagree.

The record shows that appellant was present during the conversation which took place prior to the exchange of money and for the payment. Later, when Officer Gillespie told appellant what he wanted, she said, “This is covered in the other money you gave.” The evidence was sufficient to show that appellant offered or agreed to the sexual conduct for a fee. We overrule ground of error eight.

Grounds of error nine and ten attack the constitutionality of § 43.02 of the Penal Code. Ground of error nine claims that the statute violates the First Amendment because it permits prosecution for a mere verbal statement. Ground of error ten asserts that the statute is unconstitutionally vague. We disagree.

A statute which regulates speech to a certain extent will not necessarily be overturned so long as its effects on speech are incidental to the lawful purposes for which it is enacted. Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968). Some impact on speech is permissible if a government regulation:

... is within the constitutional power of the Government; it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968).

Regulation of prostitution is important to the substantial government interest of protecting citizens’ health and safety. The regulation is not related to suppression of free expression and the incidental restriction is no greater than necessary to further the substantial government interest. See Tisdale v. State, 640 S.W.2d 409 (Tex.App.-San Antonio 1982, pet. ref'd).

The Court of Criminal Appeals has previously responded to claims that § 43.02 is vague, and held that the statute is not unconstitutionally vague. McCarty v. State, 616 S.W.2d 194 (Tex.Crim.App.1981). See also Ozack v. State, 646 S.W.2d 941 (Tex.Crim.App.1983). We overrule grounds of error nine and ten.

In grounds of error eleven, twelve and thirteen, appellant claims that appellant could not be convicted through the uncorroborated testimony of an accomplice to the offense, Officer Gillespie. These points are multifarious and preserve nothing for review. Ely v. State, 582 S.W.2d 416 (Tex.Crim.App.1979).

Furthermore, even if appellant had preserved these grounds, they are without merit. An undercover agent is not an accomplice so long as he does not bring about the crime, but merely obtains evidence of it. Parr v. State, 606 S.W.2d 928 (Tex.Crim.App.1980); Lopez v. State, 574 S.W.2d 563 (Tex.Crim.App.1978). The record does not suggest that Officer Gillespie originated this crime or that he was acting in any capacity other than that of a police officer collecting evidence. We overrule grounds of error eleven, twelve and thirteen.

Finally, ground of error fourteen asserts that the trial court erred in overruling appellant’s Motion for Mistrial when the State asked questions concerning another woman apparently arrested at the same location. We disagree.

The prosecutor asked Officer Gillespie: “Did your partner, Officer Rushing, make a case against the girl that he went up to the room with?” Defense counsel objected as follows: “Your Honor, I object because that’s irrelevant and immaterial and highly prejudicial and I ask for a mistrial.” The court sustained the objection and instructed the jury to disregard the question, but overruled the Motion for Mistrial.

First, a general objection does not preserve error. Gutierrez v. State, 628 S.W.2d 57 (Tex.Crim.App.1980). The objection “irrelevant and immaterial” is a general objection. Euziere v. State, 648 S.W.2d 700 (Tex.Crim.App.1983); Carr v. State, 600 S.W.2d 816 (Tex.Crim.App.1980).

Furthermore, on appeal appellant contends that this question raised impermissible inferences, a different objection than that raised at trial; therefore, nothing is preserved for review. Nelson v. State, 607 S.W.2d 554 (Tex.Crim.App.1980).

Finally, an instruction to disregard will cure error caused by improper question, except in extreme cases where it appears to be calculated to inflame the minds of the jurors, and is of such character as to be impossible to withdraw it from the juror’s minds. Seaton v. State, 564 S.W.2d 721 (Tex.Crim.App.1978); See Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981). Even if appellant had preserved this ground of error, the courts instruction would have curred any error caused by the question. We overrule ground of error fourteen.

Accordingly, we affirm the judgment of the trial court.


author: T.M. GUPTON, Justice (Retired).

text:
    Edward Thomas O’NEILL, Appellant, v. The STATE of Texas, Appellee.
    No. 01-82-0767-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 1, 1984.

      Madeline Sitzes, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., James C. Brough and Ned Morris, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before WARREN and BASS, JJ., and GUPTON, J., Court of Criminal Appeals, Retired.
   OPINION ON MOTION FOR REHEARING

T.M. GUPTON, Justice (Retired).

Appellant’s Motion for Rehearing is granted. The opinion delivered June 14, 1984 is hereby withdrawn, and the following opinion is substituted therefor.

Appellant, Edward Thomas O’Neill, was tried before a jury for the offense of aggravated sexual abuse of a child. After a guilty verdict was returned, the court assessed punishment at 75 years confinement in the Texas Department of Corrections. The judgment is affirmed.

On December 7, 1981, at approximately 6:10 p.m., appellant and the complainant’s mother picked up her fifteen-month-old daughter at the Kinder Care Nursery located in west Houston. The child was drowsy, and although this was somewhat unusual, she had recently had a cold, and therefore, her mother was not particularly alarmed. They arrived home a few minutes later at which time appellant insisted, over the mother’s objections, that she go to the grocery store to shop for food and to a local convenience store to buy some firewood. In order to avoid further argument, the mother made a shopping list and left the townhouse at 6:45. Appellant stayed home to take care of the little girl.

After leaving the house, the mother did the shopping and returned home approximately 45 minutes later. She was met by appellant as she pulled the car into the driveway. Although he had been fully dressed when she left, he was now wearing only a pair of cut-off blue jeans with no shirt. Appellant, who was soaked with perspiration and appeared panic-stricken, ran up to the car window and told her something was wrong with the little girl. The mother then ran into the house and found her daughter, wearing nothing but a diaper, lying with her back on the couch. She turned the child over and noticed that she was soaking wet, that her eyes were glassy, and that she could not move her arms or legs.

Apparently, appellant had already notified the emergency medical service, because an ambulance arrived almost immediately thereafter. According to the testimony of the EMS personnel, appellant told each of them somewhat different versions of what had happened. However, the essence of his explanation was that the child must have fallen down the stairs while he was out of the room. He said he heard a “thud,” then either came in from outside, upstairs, or from the bathroom and knocked the door into the child. He said he did not think the door hit the child hard enough to cause serious injury. He further explained that after the impact the child started crying, then vomited and lapsed into a coma. He then called for an ambulance and went outside to await its arrival.

The EMS personnel tried to revive the child, but were unsuccessful. They transported the child to nearby Alief Hospital. After arriving at the hospital, doctors administered emergency treatment until “Life Flight" arrived and transported the child to Hermann Hospital. Efforts by Hermann Hospital’s emergency personnel continued, however, the child died at 12:00 noon the next day.

The following day an autopsy was performed by Dr. Aurelio Espinóla, Deputy Chief Medical Examiner for Harris County. It was his opinion that the cause of the child’s death was a subdural hematoma. Furthermore, the doctor concluded that because there were no outward signs of injury to the skull, which would be consistent with a fall or sudden blow to the head, this subdural hematoma probably resulted from what is known as “infant shake syndrome” or “shaking syndrome.”

He testified that “infant shake syndrome” occurs when a small, undeveloped child is suddenly and severely shaken, thereby causing the brain to slam against the cranial wall. This impact causes breakage of the small bridging veins connecting the skull to the brain: that area fills with blood, and the subsequent increase in pressure around the brain causes the child to lapse into a coma and eventually die, if the pressure is not relieved.

During his autopsy, Dr. Espinóla noticed a bruised area between the child’s vagina and anus and decided to test for signs of sexual abuse. He took swab samples from the child’s mouth, anus, and vagina, then tested these samples for spermatoza and acid phosphatase, an element of semen. Although the test for spermatozoa was negative, the test for acid phosphatase was positive, and further test revealed this substance was of a prostatic origin.

After receiving these results, Dr. Espinó-la contacted Detective William Allen Ogg of the Harris County Sheriff’s Department and advised him of the test results and his conclusion that the child had been the victim of sexual abuse. Detective Ogg later went to appellant’s home, and after receiving permission from the child’s mother, searched the house for other evidence that could confirm the commission of the alleged offense. He recovered several pieces of clothing and diapers from various trash cans and a laundry basket, then brought those items back to the police lab for testing. The test revealed the presence of various substances on the diapers and clothing: semen, pubic hair, acid phosphatase, uribilogen (an element of feces), and type A and B blood. Additional tests revealed the child had type A blood, and appellant had type B. Furthermore, the pubic hairs found on the child’s diaper were compared to a sample taken from appellant and were determined to be extremely similar.

Based upon these facts, appellant asserts fourteen grounds of error on appeal. In his first four grounds of error, he asserts that the evidence presented at trial was insufficient to support a conviction for the offense of aggravated sexual abuse. Sexual abuse of a child was defined in section 21.10 of the Texas Penal Code, which was repealed in 1983. This provision stated:

A person commits an offense if, with intent to arouse or gratify the sexual desire of any person, he engages in deviate sexual intercourse with a child, not his spouse, whether the child is of the same or opposite sex, and the child is younger than seventeen years.

Tex.Penal Code Ann. sec. 21.10, repealed by Acts 1983, ch. 977, § 12, 1983 Tex.Gen. Laws 5311, 5321 (emphasis added).

Sexual abuse of a child was per se aggravated sexual abuse under section 21.-05(a) of the Texas Penal Code when the age of the complainant is under 14 years. Moreover, it is well-settled that the intent to arouse or gratify the sexual desire of any person can be inferred from the sexual act itself. Ferguson v. State, 579 S.W.2d 2 (Tex.Crim.App.1979); Torme v. State, 525 S.W.2d 9 (Tex.Crim.App.1975). Therefore, in the case at bar, the only remaining elements necessary to sustain appellant’s conviction are that the physical act of deviate sexual intercourse occurred with the complainant, and that appellant was the perpetrator of that act.

In both direct and circumstantial evidence cases the court is to review the evidence in the light most favorable to the verdict or judgment. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984). Furthermore, in determining the sufficiency of the evidence to support a conviction, the test for review is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465, 466 (Tex.Crim.App.1983) (op. on reh’g). In a circumstantial evidence case this test is satisfied when the evidence excludes every other reasonable hypothesis except the guilt of the accused. Moreover, if the evidence supports an inference other than guilt, a finding of guilt is not a rational finding. Id. at 472. In the case at bar we conclude this test is satisfied.

The state introduced the following evidence at trial: the presence of a bruised area between the child’s vagina and anus, a second bruised area along the child’s buttocks and legs, acid phosphatase of a pros-tatic origin discovered in the child’s mouth and anus, semen stains and pubic hairs found on the child’s diapers and clothes, and traces of A and B blood and feces found on the child’s sock. This court might conceive of a reasonable hypothesis that would possibly explain one or two of the pieces of evidence when taken separately. However, when all of the evidence is examined as a whole, and the fact that acid phosphatase of a prostatic origin is a substance found only in the adult male is noted, there is simply no other reasonable hypothesis.

Appellant further contends there was insufficient evidence to prove beyond a reasonable doubt that he was the perpetrator of the alleged offense. However, the evidence set forth above, as well as the physical condition of the child, allows no other reasonable hypothesis than an affirmative finding on this element. The child’s mother testified that there were no other males around the child on the evening of the alleged offense. Moreover, the employees of the nursery, the EMS volunteers, the hospital and morgue staff all testified that no deviate sexual intercourse was performed on the complainant while she was under their care and control. There was also testimony by the child’s physicians that had the child been conscious during the commission of the offense there would have been a bruising and tearing of the mouth and anus. This was a condition which would not have resulted, and did not in this case, if the child had been comatose. This evidence together with evidence of the appellant’s anger over the child’s obvious lack of warmth to him, his insistence that the child’s mother leave him alone with the little girl on the evening the act occurred, and the physical evidence taken from appellant’s own home lead to no other reasonable hypothesis except, that appellant committed the offense.

Appellant’s first four grounds of error are overruled.

In his fifth ground of error appellant contends the trial court erred in admitting evidence of infant shake syndrome, because it constituted evidence of the extraneous offense of murder and injury to a child and there was no evidence that this offense occurred or, if it did occur, that he was the perpetrator. Furthermore, it is his contention that the introduction of this evidence, without proof that he committed the crime, was so highly prejudicial that it caused the jury to convict him of murder, a crime that was not contained in the allegations of the indictment. Appellant made a motion in limine, which was denied, to have this evidence excluded.

Initially, before any analysis of whether the evidence was proof of an “extraneous offense” and, therefore, erroneously admitted according to the authority cited by appellant, the evidence must have constituted evidence of the commission of a crime or, at the very least, a “bad act.” Although “murder” and its various derivatives are certainly crimes, “death” in and of itself is not. In fact, it appears that almost by definition, “infant shake syndrome” lacks the requisite intent for the crime of murder as defined within the laws of this state. From the medical testimony introduced at trial, infant shake syndrome is an abnormal response to what is all too frequently a typical reaction to parental frustration. Merely shaking a child, without any additional aggravating facts, would generally be insufficient to prove the intent to cause death or even serious bodily injury necessary for murder.

Moreover, even if the evidence introduced met the necessary showing of “intent”, then the State’s evidence eliminated the appellant as the suspect who severely shook the child. The evidence introduced by the physicians concerning the physical symptoms normally evidencing “infant shake syndrome” paralleled the symptoms exhibited by the child in this ease: an abnormal period of drowsiness followed by a period of alert normal behavior, the sudden lapse into a coma, and later, death. The obvious conclusion to be drawn from the doctor’s testimony was that, if infant shake syndrome was in fact the cause of the child’s subdural hemotoma, and she exhibited the normal bodily responses, the shaking probably occurred prior to the time the child was picked up and brought home. Certainly, appellant could not have been harmed by evidence which tended to exclude him as the perpetrator.

Finally, it is well settled that the State is entitled to show all of the relevant surrounding circumstances to an offense. In the present case the evidence concerning both the fact of the child’s coma and subsequent death was necessary to fully explain the case to the jury. The fact of the child’s death was certainly necessary to explain the absence of the child at trial as well as to prevent the jury’s speculation on the reason for the “medical examiner’s” examination, autopsy report, photos and testimony.

Moreover, it was of particular importance for the jury to understand the physical condition of the child immediately prior to and during the commission of the alleged acts of sexual abuse. If the child had been conscious during the alleged sexual abuse, then there would naturally have been a bruising, tearing, and hemorrhaging of the rectum and the mouth. However, Dr. Bruce Taylor, the child’s neuro-sur-geon, testified that a subdural hematoma, depending upon the stage of injury, would cause a waxing and waning of consciousness and that if insertion had been made during a period of unconsciousness, the normal bruising and tearing may not occur. If the jury had been left with the impression that the child was conscious during the acts in question, then they would have considered the absence of these symptoms as exculpatory evidence. Thus, it was important for the jury to understand how the fact and cause of the child’s death, subdural hematoma, would have affected what otherwise would have been the normal bodily responses to deviate sexual intercourse with a fifteen-month-old child.

Accordingly, we hold that the above evidence was admissible and necessary for the jury’s understanding of the case, and overrule appellant’s fifth ground of error.

Appellant’s eighth ground of error attacks the admission of various items of physical evidence presented at trial. He argues they were not properly tied to the commission of this offense. However, during the State’s tender of this evidence, appellant’s only objection to the introduction of this evidence was to the hearsay written on the outside of the bags in which the items were contained. Appellant’s trial objection was sustained and the hearsay evidence was not admitted. Since appellant’s objection was granted, and in the absence of an adverse ruling on the point herein presented, appellant has no basis to claim the trial court erred. Carrilo v. State, 591 S.W.2d 876 (Tex.Crim.App.1979); Bryant v. State, 570 S.W.2d 921 (Tex.Crim.App.1978); Hopkins v. State, 480 S.W.2d 212 (Tex.Crim.App.1972).

Appellant’s eighth ground of error is overruled.

In his ninth ground of error appellant attacks the admissibility of Dr. Joplin’s testimony that the child had a yellow bruise under her right eye and his later testimony, in connection with a vaginal bruise, regarding the color scale of bruises used to determine the age of that injury. Appellant failed to object to the testimony concerning the bruise under the child’s eye. His objection to the testimony of the color scale was late and more importantly, did not direct the court to that portion of the testimony he considered “evidence of an extraneous offense.” Apparently, appellant attempted to object to the Doctor’s testimony concerning the color scale, because then the jury would infer the “yellow-brownish” bruise to the right eye was four to seven days old, and thus a collateral issue. However, he never directed the court to that portion of the testimony. In fact the court, in response to appellant’s objection and motion for mistrial, stated that it thought the evidence was relevant and it did not see any reference to an extraneous offence. The portion of Dr. Joplin’s testimony regarding the color scale and age of a blue-red bruise was relevant and necessary to the jury’s understanding of the child’s vaginal injury. Therefore, at least in part, the evidence of the color scale was admissible at trial. Appellant’s failure to timely and specifically object to testimony of the color scale which inadvertantly related to the child’s eye injury, waived his right to complain of any error in its admission.

Appellant’s ninth ground of error is overruled.

Appellant complains in his tenth, twelfth, and thirteenth grounds of error that the trial court erred in allowing certain volunteered and unresponsive remarks made by three of the prosecution’s witnesses. The theory behind an otherwise late objection to a nonresponsive answer is that to do otherwise would deprive the party of his right to object to inadmissible testimony contained within the statement. Therefore, a party is allowed to object after the witness has volunteered the information. However, it is only error for the trial court to overrule such an objection if the volunteered and unresponsive testimony is otherwise inadmissable. 1 Wigmore, Evidence § 18 (Tillers rev. 1983); 3 Wigmore § 785 (Chadbourn rev. 1970).

Initially, appellant complains of the court’s failure to sustain counsel’s objection to an unresponsive answer by the child’s mother. The mother stated that appellant insisted, over her objection, that she leave the house and go to the stores on the night of the offense. This testimony was clearly admissible as one more circumstance to be used in the jury’s consideration of this circumstantial evidence case. See Bailey v. State, 532 S.W.2d 316 (Tex.Crim.App.1976). Moreover, this same evidence was later elicited on direct examination without objection. We find no error in the court’s ruling on this evidence.

Appellant’s twelfth ground of error concerns the volunteered statement by Detective Ogg that a towel, recovered from the scene and the subject of the examination, was “probably used to clean up the infant.” Appellant objected, claiming the statement was both unresponsive and outside the evidence. The evidence was indeed outside the record, and the trial court sustained the objection and instructed the jury to disregard it for any purpose. We conclude that this instruction by the court was sufficient to cure any possible harm. American Plant Food Corp. v. State, 587 S.W.2d 679 (Tex.Crim.App.1979); Collins v. State, 548 S.W.2d 368, 376 (Tex.Crim.App.1976).

Finally, appellant complains of the unresponsive remark made by parttime paramedic and full-time assistant district attorney, Bill Camp. Upon direct examination, Mr. Camp stated that he did not immediately understand appellant’s version of how the child had fallen and did not make further inquiries. Defense counsel objected, but stated no specific grounds for his objection. This type of general objection is insufficient to preserve error. Quinones v. State, 592 S.W.2d 933 (Tex.Crim.App.1980).

Appellant’s tenth, twelfth, and thirteenth grounds of error are overruled.

In his eleventh ground of error, appellant contends the trial court erred in overruling his objection to a question by the State, which appellant contends was outside of the record and a misstatement of fact. Appellant complains of the following testimony:

Q. That rectum could have been completely full of semen, spermatozoa and acid phosphatase; could it not, ma’am?
A. It could have. I would not have noticed internally. I did not check internally.
Q. If the Medical Examiner and a toxicologist came in and said it was full of semen—
Mr. Stripling: Objection, Your Honor, outside of the record. Misstatement of fact.
The Court: Overruled, Counsel.
(By Mr. Morris):
Q. —was full of acid phosphatase or did have acid phosphatase in that rectum, you wouldn’t have any quarrel with that; would you, ma’am, from what you saw out there?
A. No, sir.

The focus of the prosecutor’s inquiry was to establish that the extent of the nurse’s rectal examination would not have permitted her to say whether there was semen, spermatozoa, or acid phosphatase present. Just moments before defense counsel had let pass a similar question by the prosecutor without any objection. It is well-settled that no error is preserved where the objection was not made at the earliest opportunity. Marini v. State, 593 S.W.2d 709 (Tex.Crim.App.1980) at 714.

Moreover, the prosecutor’s question also included a hypothetical situation where the medical examiner said the rectum had acid phosphatase in it. This assumes a fact that was in evidence. Therefore, appellant had a duty to properly direct his objection to only that portion of the prosecutor’s question that was objectionable. LaBome v. State, 624 S.W.2d 771 (Tex.App.-Houston [14th Dist.] 1981, no pet.).

Appellant’s eleventh ground of error is overruled.

In appellant’s sixth ground of error, he states the trial court erred in overruling counsel’s objection to State’s Exhibit 34, a photograph of the vaginal area of a female child, because there was no evidence that the photograph was of the complainant or in any way related to a material issue at trial. Dr. Dennis Kopaniky, the neuro-sur-geon who operated upon the complainant prior to her death, testified that he could not identify the picture as being of the deceased. However, the doctor did testify concerning the apparent discoloration and bruising around the area to the entrance of the vagina and around the buttocks and legs and stated that the discoloration and bruising was consistent with the attempted penetration by a foreign object and other trauma to the buttocks area. He further stated that the bruises were not consistent with the placement of a catheter, nor was the bruised area around the buttocks caused by “blood pooling” which would have occurred after death. He stated his testimony was based on his experience as a doctor and neurosurgeon, and that he could not identify the photograph as being of the deceased because he did not observe the vaginal area of the deceased during his procedures.

However, the State later identified Exhibit 34 as being a picture of the complainant through the testimony of Dr. Espi-nóla, the medical examiner and physician who examined the child’s vaginal area during his autopsy, and thus, had personal knowledge of her condition. Therefore, although a full predicate was not laid during the direct examination of ,Dr. Kopaniky, the evidence subsequently became admissible through Dr. Espinóla, and any error in the trial court’s premature admission was rendered harmless. Jones v. State, 587 S.W.2d 115 (Tex.Crim.App.1979).

Appellant’s sixth ground of error is overruled.

In his seventh ground of error, appellant challenges the admissibility of several post-autopsy photographs taken of the child, and contends they were irrelevant to any issue in the case and were inflamatory, prejudicial, and cumulative of the medical examiner’s testimony. It is well-settled that the admission of photographs rests largely within the discretion of the trial judge, whom must determine whether the photos serve a proper purpose for the jury’s enlightenment. Terry v. State, 491 S.W.2d 161 (Tex.Crim.App.1974). The decision of the trial judge will not be disturbed absent a showing of abuse of that discretion. Id.

Moreover, if a verbal description of a deceased body is admissible, then a photograph depicting the same is admissible. Heckert v. State, 612 S.W.2d 549 (Tex.Crim.App.1981); Hall v. State, 619 S.W.2d 156 (Tex.Crim.App.1980). Only when the probative value of the photograph is very slight and its inflammatory aspects great, will it be an abuse of discretion to admit the photograph. Harrington v. State, 547 S.W.2d 621 (Tex.Crim.App.1977). As stated in Hall v. State, 619 S.W.2d 156 (Tex.Crim.App.1980):

The probative value of the photographs in question, depicting the position of the body, the location, nature and extent of the wounds to the body, outweighs any inflammatory aspects they may have had on the jury. They were properly admitted.

However, as a general rule, post-autopsy photographs are inadmissible because they depict primarily what was done by the doctor who performed the surgery, rather than what was done by the appellant. It is not simply because the deceased was removed to a clinical surroundings, Clark v. State, 627 S.W.2d 693, 705 (Tex.Crim.App.1982), but rather that the “massive mutilation of the body caused by the surgery necessary in performing the autopsy” is generally so highly prejudicial and inflamatory that it would not be easily outweighed by any possible probative value. Terry v. State, 491 S.W.2d 161 (Tex.Crim.App.1973).

We do not find Terry to be disposi-tive of the case at bar. Although the photographs introduced were “post-autopsy,” they did not show “massive incisions or mutilations,” but only a small amount of blood under the body and from the fingertips of the surgeon’s gloves. Moreover, the probative value of the picture was great. They depicted the size and condition of the child and the bruises to her vaginal area and buttocks. This allowed the jury to resolve the conflicting evidence, and determine the nature, extent, and location of the bruises. These facts were not obfuscated by the surgery, and were accurately depicted in the complained of photographs. Therefore, we hold that the complained of photographs were admissible, and overrule appellant’s seventh ground of error. See Kelly v. State, 621 S.W.2d 176 (Tex.Crim.App.1981).

Appellant, in his fourteenth ground of error, complains of a portion of the prosecutor’s statements made during voir dire. He contends that it was a comment upon appellant’s failure to testify in his own behalf. In explaining the State’s burden of proof in a criminal case, the prosecutor stated:

Part of that burden of proof goes along with the defendant does not have to testify. That drops back to the original reason for the burden of proof. Obviously, if we didn’t have a burden, then you might say: I would like to hear from the defendant. You may or you may not. It’s up to the defendant and his lawyer whether he testifies. That will not be up to Mr. Pechacek and I as to whether he testifies in this case. So, you might be like most citizens before you really think about this burden of proof: I would like to hear from both sides. That’s a natural reaction we get every day down here. So, don’t feel bad about your thinking it, but bear in mind, the Court will instruct you, that the defendant does not have to testify, (emphasis added to disputed portion)

The prosecutor’s explanation of the law was a proper one, telling the jury that although they might like to be able to hear from both sides, the defendant does not have to testify. If this did constitute an allusion to appellant’s silence, such an indirect or implied reference is insufficient to require reversal. Angel v. State, 627 S.W.2d 424 (Tex.Crim.App.1982).

Appellant’s fourteenth ground of error is overruled.

The judgment of the trial court is affirmed.

      . Although there was no offense, so entitled, in the 1981 Penal Code. An offense of “sexual abuse of a child” was per se “aggravated sexual abuse”, a first degree felony under Texas Penal Code section 21.05 (repealed, see now section 22.021) if the victim is younger than fourteen years. The complainant in the case at bar was fifteen months old at the time of the commission of the alleged offense. Moreover, the court’s charge correctly reflected the offense of aggravated sexual abuse.


author: SEARS, Justice.

text:
    Oscar Bernard THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-471CR.
    Court of Appeals of Texas, Houston (14th Dist.)
    June 14, 1984.
    Discretionary Review Refused March 20, 1985.

      Charles Baird, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   SEARS, Justice.

Appellant was convicted of burglary of a habitation with intent to commit theft and was sentenced to five years confinement. He argues that his conviction must be reversed because TEX.CODE CRIM.PROC. ANN. art. 1.13 (Vernon 1977) (waiver of jury trial), was not complied with, the trial court denied his Motion to Suppress and did not conduct an identification hearing. We have carefully examined the record and affirm the conviction.

At about 1:00 p.m. on March 9, 1983, Leroy Ethridge and a friend observed Appellant and two other men each “toting something” down the street. At the time, Ethridge thought that one of the men was carrying a television set. Although he previously had seen them in the neighborhood, he was suspicious of them carrying things down the street in the middle of the day since there had been a recent burglary in the neighborhood. He called the police dispatcher and took his telephone out to the porch so that he could continue watching their activities. He then observed the three men enter a house which he knew was vacant and noticed they exited empty handed. At this point, he called the police dispatcher a second time. An officer arrived in response to this call.

Ethridge described the three men to the officer, and told the officer the name of one of the co-defendants, James Earl Ryles (a.k.a. Riles). The officer spotted them in the neighborhood, picked them up and brought them to Ethridge’s house for identification.

The officer testified that the co-defendants looked like they were about to run as they noticed him approaching. He stopped next to them, told them that he had received a complaint from a man about three black males, fitting their descriptions, whom the man had observed near an abandoned house. He then told them that it was near the end of his shift and that he wanted to get the matter straightened out so he could go home. The three men voluntarily stepped to the rear of the patrol car, and after being informed that police policy required a search for weapons of any person entering a patrol car, each man handed him a pocket knife.

The officer and the three men proceeded to Ethridge’s house and Ethridge identified them. The officer then called for a backup unit to watch the men so that he could search the house. Ethridge told the officer that the men had deposited what they had been carrying in an abandoned house near the dead end of the street. The officer investigated the house in which he felt the property was most likely to be. He found a microwave oven, a portable radio and a World War II trench knife. These were the only items in the house which were not covered with dust and mildew. He removed the items to a patrol car and returned to Ethridge’s house.

Meanwhile, a neighbor had informed Eth-ridge that the door was ajar on a house located on a street on which Ethridge had seen the co-defendants. Upon receiving this information, the officer investigated that house and discovered pry marks near the door lock. Another officer located the owner of that house and notified him that it was possible his house had been burglarized. The owner arrived, inspected his house and notified the officers that a microwave oven, a portable radio and a World War II trench knife were missing. The owner then identified the property found in the abandoned house.

In his first ground of error, Appellant alleges that the “record does not reflect an effective waiver of right to jury trial” because TEX.CODE CRIM.PROC.ANN. art. 1.13 (Vernon 1977), was not complied with. We disagree.

Appellant was tried jointly with his two co-defendants, James Earl Ryles (a.k.a. Riles) and Larry Peaterson. During pretrial proceedings the trial judge inquired of each co-defendant whether he understood what a trial by jury was and whether he desired to waived that right. Each co-defendant affirmatively answered both questions. At that time, the judge excused the District Attorney to get the waiver of trial by jury forms. Appellant, the defense attorney and the District Attorney signed the waiver form. The trial judge did not sign the form. Trial was to the court and punishment was set at five years confinement. Appellant appeals, alleging that art. 1.13 was violated because the court’s approval of the waiver of jury trial was not entered of record on the court’s minutes. Another panel of this court affirmed the conviction of a co-defendant in Ryles v. State, 676 S.W.2d 146 (Tex.App.-Houston [14th Dist.] 1984, no pet.). Aside from Ryles, we have not been cited to, nor have we found, a case directly on point.

Article 1.13 states that

The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval bydhe court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him. (emphasis added).

The article requires that the consent of the accused and the state be in writing. The error caused by the failure of the State to sign the jury waiver form cannot be cured by subsequently signing the form or by testifying that the State consented. Lawrence v. State, 626 S.W.2d 56, 57 (Tex.Crim.App.1981). Although there is no requirement that the jury waiver form be signed by the court, it is clear that the court must consent and approve of such waiver and that such consent and approval shall be entered of record on the minutes of the court.

We find that the requirement of written consent by the State and by the defense are conditions precedent which must be complied with before presenting the waiver form to the court for approval. We find further the requirement that the “consent and approval by the court be entered of record on the minutes of the court” is a condition subsequent which is a clerical function to be performed by the clerk of the court at the direction of the court.

Finally, we find that the fact that the court accepted the executed “waiver of trial by jury,” ordered it filed with the papers of this cause and proceeded to trial without a jury, is a prima facie proof that the court consented to and approved of Appellant’s waiver of trial by jury. See Andrews v. State, 636 S.W.2d 756 (Tex.App.-Beaumont 1982, no pet.).

The waiver of trial by jury form used in this case contains the following language:

The above waiver of trial by jury having been made by the defendant and approved by the attorney representing the State, prior to the entering of a plea herein, is approved by the Court and is ordered filed in the papers of the cause. The Court’s consent and approval of the waiver of trial by jury shall be entered of record on the minutes of the Court, (emphasis added).
Judge Presiding

It is clear from the foregoing language that the court (1) approved of and consented to the waiver; (2) ordered the waiver filed in the papers of the cause; and, (3) ordered its consent and approval to be entered of record on the minutes of the court.

The clerk of the court complied with the court’s instruction to file the waiver with the papers of the cause and it is found in the transcript. However, as in Ryles, the minutes of the court brought forward on appeal are not complete. Therefore, we are without knowledge of whether the clerk complied with the court’s instruction to enter the court’s consent and approval in the minutes of the court. Appellant has failed to present this court with a complete record and we cannot assume a fact that is not supported by the record. We must therefore presume the complete record of the minutes of the court would reflect the court’s consent and approval of the waiver of trial by jury, in compliance with art. 1.13. See McCloud v. State, 527 S.W.2d 885, 887 (Tex.Crim.App.1975). We note that if appellant had affirmatively shown the court’s consent and approval was not entered of record in the minutes of the court, the appropriate remedy would be to abate the appeal and amend the minutes to comply with the instructions of the court. See TEX.CODE CRIM.PRO.ANN. art. 44.24(b) (Vernon Supp.1984). Ground of error one is overruled.

Appellant’s second ground of error deals with the trial court’s action in overruling his Motion to Suppress. He specifically argues that “[T]he arresting officer had no probable cause to justify a warrantless arrest” and that the evidence which was found after the arrest and introduced into evidence was “seized without a warrant from private property, [sic]” We hold the trial court correctly overruled the motion.

We focus first on the legality of the arrest. Appellant alleges he was illegally arrested because he was arrested without a warrant and had committed no offense in the arresting officer’s presence or within his view, TEX.CODE CRIM.PROC.ANN. art. 14.01 (Vernon 1977); the officer did not have satisfactory proof that a felony had been committed and the offenders were about to escape, TEX.CODE CRIM.PROC. ANN. art. 14.04 (Vernon 1977); or he was not found in a suspicious place under a circumstance reasonably indicating that he had committed a felony. TEX.CODE CRIM.PROC.ANN. art. 14.03 (Vernon Supp.1984). We will address these contentions in the order presented.

It is undisputed that the officer observed none of the transactions which Eth-ridge related. However, Ethridge informed the police dispatcher of the incidents he was observing and the dispatcher in turn related this information to the officer. Further, the officer testified that, based on his experience, he considered Eth-ridge to be a credible person. These factors establish compliance with art. 14.04. See Law v. State, 574 S.W.2d 82 (Tex.Crim.App.1978); Brown v. State, 630 S.W.2d 322 (Tex.App.-Houston [14th Dist.] 1982, no pet.).

Appellant argues that art. 14.03 is inapplicable “because there is nothing inherently suspicious about members of a neighborhood walking down the street carrying something in broad daylight.” As a general proposition, we agree. However, because Ethridge thought one of the men was carrying a television set, saw them deposit the property in an abandoned house and knew that at least one house in the neighborhood had been recently burglarized, we can and do find that Appellant was in a suspicious place under circumstances which reasonably showed that he was guilty of some felony. See Sheffield v. State, 647 S.W.2d 413 (Tex.App.-Austin 1983, pet. ref’d). Appellant’s warrantless arrest was justified.

As to Appellant’s argument that the fruits of the warrantless search of the abandoned house should have been suppressed, we need only note that since Appellant made no showing that he had any reasonable expectation of privacy in the house or that he had a right of ownership or possession of the house, he has no standing to challenge the validity of the search. See Goehring v. State, 627 S.W.2d 159 (Tex.Crim.App.1982); Manry v. State, 621 S.W.2d 619 (Tex.Crim.App.1981). The trial court was correct in overruling the Motion to Suppress. Ground of error two is overruled.

In his third ground of error, Appellant alleges that the trial court erred in failing to conduct an identification hearing. He specifically argues that he was denied “the opportunity to present clear and convincing evidence of tainted identification by Eth-ridge” citing Johnson v. State, 614 S.W.2d 148 (Tex.Crim.App.1981), for the proposition that such a hearing may be constitutionally necessary.

Johnson, as well as the other cases Appellant cites, involved a jury trial. Appellant’s trial was to the court. The logical need for such a hearing, which is conducted outside the presence of the jury, is not present if trial is not to a jury. In both cases the judge hears testimony relating to the identification issue. Appellant was afforded the opportunity to cross-examine the identification witnesses and to present his own witnesses; however, he chose not to do so. Further, he did not object to Ethridge identifying him at trial, and, has not even alleged how any prior identification may have tainted the in-court identification. Thus, Appellant has waived this ground of error. Pete v. State, 501 S.W.2d 683 (Tex.Crim.App.1973), cert. denied, 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974). Ground of error three is overruled.

The conviction is affirmed.


text:
    Randy Lopez ESCALANTE, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-705CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 14, 1984.
    Frumencio Reyes, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

JUNELL, Justice.

This is an appeal from a conviction for the offense of aggravated robbery pursuant to TEX.PENAL CODE ANN. § 29.03 (Vernon 1974). After the appellant changed his plea from not guilty to guilty, the court assessed punishment at twenty years confinement in the Texas Department of Corrections. We affirm.

Appellant initially pled not guilty on August 1, 1983. After the court determined that appellant understood English, the state formally read the indictment. The court accepted appellant’s not guilty plea and set the case for trial at 1:30 p.m. that afternoon. When court reconvened that afternoon, appellant changed his plea to guilty, signed a stipulation of evidence, and made a judicial confession.

The court asked appellant and his attorney almost 50 questions and gave appellant numerous admonishments. Among the questions the court asked were these:

(1) Do you understand what it is that you’re alleged to have done, Mr. Es-calante?
(2) Did [sic] you understand a person found guilty of the felony offense of aggravated robbery may be punished by confinement in the State penitentiary for life or for a term of years not less than five nor more than ninety-nine and fined up to ten thousand dollars? Do you understand that?
(3) And understanding that range of punishment, you persist in your plea of guilty?
(4) And if we go forward, it’s the only trial you’ll ever have? You understand that?
(5) Do you think he’s [the trial attorney] a good lawyer for you?

In each case appellant answered yes. The court also questioned appellant’s attorney, specifically asking whether he thought appellant understood his constitutionally protected rights and whether he waived them as a knowing, voluntary and intelligent surrender. The attorney answered affirmatively.

The court also carefully admonished appellant that he could receive life or ninety-nine years, that the burden was on the state to prove him guilty beyond a reasonable doubt, that he did not have to testify, that anyone accused of a crime has numerous constitutional rights and privileges. Satisfied that the plea was made voluntarily and knowingly, the court found appellant guilty as charged and deferred sentencing pending a Pre-Sentence Investigation. The case was reset until October 6, at which time the court was informed appellant wished to withdraw his guilty plea. A colloquy between appellant and the judge ensued, a portion of which follows:

THE COURT: Why [do you wish to withdraw your plea]?
THE DEFENDANT: Because I am not guilty of this crime. I did not commit it.
THE COURT: And why, sir, did you indicate to the Court otherwise?
THE DEFENDANT: Well, because Mr. Garrett [appellant’s attorney] here told me if I plead guilty, you know, I could get off with some more probation.
THE COURT: And in spite of what the Court told you, you would rather take his word rather than the Court’s? Did I ask you whether or not you had been promised anything by anybody?
THE DEFENDANT: Yes, sir.
THE COURT: And what did you tell me?
THE DEFENDANT: I said no.
THE COURT: Why did you tell me no?
THE DEFENDANT: Well, because I wanted to get this probation....

The judge denied appellant’s request to withdraw his guilty plea and pronounced sentence.

Appellant urges two grounds of error, both contending his guilty plea was not made knowingly and voluntarily. His first ground alleges reliance upon the inaccurate advice of his attorney; the second is the trial court did not advise him that he was ineligible for probation.

In his first ground appellant alleges that the entry of his guilty plea could not have been made knowingly and voluntarily as he relied upon inaccurate legal advice given by his attorney. He claims that counsel told him he was eligible for probation even though one adjudged guilty of the offense of aggravated robbery cannot be considered for probation. See TEX.CODE CRIM.PROC.ANN. § 42.12B, § 3f(a)(1)(D) (Vernon Supp.1984). His attorney was present during the sentencing hearing but did not testify.

Appellant relies on the recent case of Murphy v. State, 663 S.W.2d 604 (Tex.App.-Houston [1st Dist.] 1983, no pet.) We find Murphy v. State and the instant case distinguishable. In Murphy the trial court made 34 findings of fact, five of which are reprinted below:

10. Satterwhite [defendant’s trial attorney] sought a commitment from Judge Hearn of a “cap” of twenty years if the defendant entered a plea of guilty.
11. Judge Hearn refused to commit himself to any punishment stating it was against his policy.
17. On the day of trial, the prosecutor told the judge in annex court that he intended to try all three counts of the aggravated robbery indictment. Mr. Satterwhite erroneously believed that he had already obtained a severance of counts on that indictment. Mr. Satterwhite was not prepared to try the secoiid and third counts of the indictment, and he so advised the court, the prosecutor and the defendant.
23. The primary reason that the defendant changed his plea from not guilty to no contest on the day of trial was because Mr. Satterwhite told him that the motion for severance had been denied, that he would have to try all three cases together (two of which he was unprepared to try), that a jury hearing evidence of three aggravated robberies would be likely to assess a term of life imprisonment, and that Judge Hearn had agreed to assess punishment at no more than twenty-five years.
33. The court sentenced the defendant to forty years in prison on the aggravated robberies and twenty years on the robberies. This was five to twenty years more than Mr. Satterwhite had told the defendant he would receive, based on the trial court’s alleged representations to him.

Shepherd v. State, 673 S.W.2d 263 (Tex.App.-Houston [1st Dist.] 1984) provides the standard of review for cases in which a defendant alleges his plea was induced by “significant misinformation.” That standard, simply put, is whether appellant’s claim that his plea was involuntary is supported by the record.

A review of the record in the instant case reveals no filing of a motion for probation as in Ramirez v. State, 655 S.W.2d 319 (Tex.App.-Corpus Christi 1983, no pet.) and as in Shepherd v. State, supra. The First Court of Appeals in that well-reasoned opinion held, “We cannot presume the nature of an attorney’s advice from the record of his conduct at trial without evidence to show the trial strategy originated with the attorney and was not the result of acquiescence to the client’s wishes.” Shepherd, Id. at 267. There, as in the instant case, approximately two months had elapsed between appellant’s entry of a guilty plea and the actual sentencing. Many events could have transpired during the interval to have affected appellant’s decision. Without conclusive support in the record we are not inclined to narrow the hypothetical dist of events down to the single theory proposed in ground of error one, i.e. that appellant was misinformed by his attorney. Appellant’s first ground of error is overruled.

Appellant, in his second ground of error, argues that his guilty plea was not entered knowingly and voluntarily because the court failed to advise him he was ineligible for probation. In support of this contention appellant relies on Ramirez v. State, supra. We find appellant’s reliance misplaced. The Ramirez case also involved an appeal from a conviction of aggravated robbery. There, however, the trial court made this statement: “In addition ... [to the range of punishment], if you have made application for probation, you should be advised that your application may or may not be granted.” It also ordered that a Pre-Sentence Investigation be conducted by the adult probation office, (emphasis added). Id. at 320. The trial court later made an affirmative finding that the defendant was guilty of the offense of aggravated robbery. The Corpus Christi Court of Appeals held there had been no compliance with TEX.CODE CRIM.PRO.ANN. art. 26.-13(a), (c) (Vernon 1984) and was unwilling to supply the mandated admonishment regarding ineligibility for probation by inference, intendment or presumption.

We find the case at bar distinguishable from Ramirez v. State for three reasons:

(1) the appellant never filed an application for probation;
(2) the court never made any statement indicating appellant had any possibility of probation; and
(3) the court’s ordering of a Pre-Sen-tence Investigation for appellant included no reference to any probation office or officer.

The standard of review in a case such as appellant’s, outlined in Shepherd v. State, supra, consists simply of an examination of the record. Such an examination reveals no application for probation, no statements from the bench that could be construed as suggesting appellant had any chance of receiving probation, and no references from the bench to a probation office or officer.

While Murphy v. State, supra, held that it considered it to be the “better” practice for a trial court to admonish an applicant of ineligibility for probation when it becomes apparent to the court that said applicant falsely believes himself to be eligible, the record in Murphy was uncontro-verted that the defendant, after filing a motion for probation, had relied on inaccurate advice regarding his chances of receiving such probation. We note that the general rule in this state still remains that there is no requirement that a defendant be informed of his ineligibility for probation. See Rodriguez v. State, 509 S.W.2d 319, 321 (Tex.Crim.App.1974) and Miles v. State, 501 S.W.2d 91 (Tex.Crim.App.1973). Since the judge, after appellant’s plea of guilty, had taken the case under advisement pending the pre-sentence investigation, his decision not to allow appellant to withdraw that plea at the beginning of the sentencing phase of the trial was strictly within his broad discretionary powers. See Jackson v. State, 590 S.W.2d 514 (Tex.Crim.App.1979). After carefully reviewing the extensive, diligent admonishments the court gave appellant upon the entry of the guilty plea and its lengthy questioning of appellant regarding his motivation to withdraw that plea, we find no abuse of discretion. We therefore overrule appellant’s second ground of error.

The conviction is affirmed.


author: MURPHY, Justice.

text:
    William Edward STERLING, Appellant, v. STATE of Texas, Appellee.
    No. C14-82-788CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 28, 1984.

      Ken McLean, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    JUNELL, MURPHY and SEARS, JJ.
   OPINION

MURPHY, Justice.

This is an out-of-time appeal from a conviction for possession of a controlled substance pursuant to Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.04(a) (Vernon 1976). Trial was to the court which assessed punishment at twelve (12) years confinement in the Texas Department of Corrections.

Appellant’s sole contention on appeal is that he was denied effective assistance of counsel. Specifically, appellant asserts that his plea of guilty was not freely, knowingly and voluntarily entered because trial counsel (1) failed to understand the basics of criminal jurisprudence which effectively ruled out the possibility of going to trial on the merits of the case and (2) failed to investigate the facts and the law governing the case. We disagree.

The facts show that appellant appeared before the trial court with his attorney, James Baker, on December 12, 1978, charged with delivery of a controlled substance with one prior felony conviction alleged for enhancement. Appellant and his attorney entered into a plea bargain agreement with the prosecutor. In exchange for a plea of nolo contendere, the prosecutor agreed to reduce the charge to possession of a controlled substance and dismiss the enhancement paragraph. The prosecutor made no agreed recommendation as to punishment. The plea bargain agreement was submitted to and approved by the trial court. After hearing testimony in support of appellant's application for probation, the court assessed punishment at twelve years imprisonment in the Texas Department of Corrections.

Mr. Baker continued to represent appellant on the original appeal to the Court of Criminal Appeals. Prior to the time appellant’s appeal brief was due, Mr. Baker informed appellant that he would not pursue the appeal further unless his attorney’s fees were paid. On December 16, 1979, Mr. Baker filed a Motion to Withdraw as Attorney of Record with the trial court, but failed to secure a formal ruling on the motion. The required brief was never filed and the Court of Criminal Appeals affirmed appellant’s conviction.

Appellant filed a post conviction writ of habeas corpus in the trial court contending that he was denied effective assistance of counsel in the trial on the merits and on appeal. The trial court conducted a hearing and issued findings of fact and conclusions of law. The court found:

(1) Mr. Baker discussed the allegation contained in the indictment with Assistant District Attorneys Richard Bax and Frank Harmon, appellant, Officer D.D. Shirley, co-defendant Jimmy Darrell Anderson, and Robert Baxter;
(2) Mr. Baker reviewed the State’s file on the cause;
(3) Mr. Baker advised appellant to plead nolo contendere to a reduced charge and seek lenient punishment from the court in the absence of a viable defense;
(4) Mr. Baker advised appellant of his constitutional rights prior to entry of appellant’s plea; and
(5) Mr. Baker was remiss in failing to secure a ruling from the trial court for the record on his Motion to Withdraw.

The trial court concluded that appellant failed to sustain his burden of proving ineffective assistance of counsel at the trial level but sustained his burden of establishing ineffective assistance of counsel on his original appeal. Accordingly, appellant was afforded this out-of-time appeal.

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal has two components. First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel’s errors were so serious that counsel’s representation was unreasonable. The proper measure of reasonableness is reasonableness under prevailing professional norms. Second, the defendant must show that the deficient performance prejudiced the defense. Under this prong of the test, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in. the outcome of the trial. Strickland v. Washington, - U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, in the case at bar appellant had the burden to establish that counsel’s deficient performance significantly influenced him in deciding to plead guilty. Ex parte Young, 644 S.W.2d 3, 5 (Tex.Crim.App.1983).

Appellant’s first contention, that counsel’s “want of intelligence, erudition, experience, and ability” significantly influenced appellant’s decision to plead nolo conten-dere, fails to establish that appellant was prejudiced by counsel’s alleged deficient performance. Appellant attempts to establish that Mr. Baker’s representation was deficient by asking him questions designed to reveal his knowledge of basic principles of criminal law. Assuming that Mr. Baker’s answers were deficient, based on prevailing professional norms, there is no evidence that the misinformation was communicated to appellant and relied upon by him in entering his plea. To the contrary, appellant expressly testified that he based his decision to plead nolo contendere solely upon Mr. Baker’s promise that his sentence would be probated.

Appellant’s claim that he was denied effective assistance of counsel due to counsel’s failure to adequately investigate the case cannot be sustained. Mr. Baker testified that he interviewed both District Attorneys, the officer that purportedly accepted delivery of the methamphetamine, appellant, the co-defendant and an eyewitness. Additionally, the court found that Mr. Baker reviewed the state’s file on the cause. Appellant attempted to impeach Mr. Baker’s reputation for truth and veracity and called himself, the co-defendant and the eyewitness to the stand to contradict his assertions.

The jury, or trial judge in a trial before the court, is the sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony given by State or defense witnesses. Thus, appellant’s contention that he was denied effective assistance of counsel cannot be sustained unless the court’s findings are clearly erroneous. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App.1978). A review of the record reveals that the trial court’s findings are supported by the evidence.

Appellant’s ground of error is overruled.

The judgment of the trial court is affirmed.