author: THOMAS G. DAVIS, Judge.

text:
    Feryl John GRANGER, Appellant, v. The STATE of Texas, Appellee.
    No. 316-83.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1984.

      Logene L. Foster, Sugar Land (court appointed), for appellant.
    William A. Meitzen, Dist. Atty., Richmond, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S AND STATE’S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

Trial was before the jury for the murder of Steve Anderson. After finding appellant guilty, the jury assessed punishment at life. On appeal the Corpus Christi Court of Appeals (13th District) reversed the conviction. See Granger v. State, 653 S.W.2d 868 (Tex.App. — Corpus Christi 1983). We granted the State’s petition for discretionary review to examine the Court of Appeals’ holding that the accomplice witness’ testimony given at appellant’s former trial was improperly admitted at his second trial. The Court of Appeals held that although the witness was “unavailable” at the second trial, reading her former testimony into the record was improper because appellant was denied effective cross-examination of the witness at the time that she gave the testimony at the first trial. According to the court, the cross-examination was ineffective because the State failed to disclose to appellant at his first trial that it had an “understanding” with the witness to reward her for her testimony. We also granted appellant’s petition for discretionary review to examine the Court of Appeals’ holding that the nonaccomplice testimony sufficiently corroborated the accomplice witness’ testimony, and that such evidence was sufficient to sustain the conviction.

The record reflects that on January 3, 1978, the bound and gagged bodies of Steve Anderson and his wife Marjorie Anderson were found in their home in Sugar-land, by Marjorie Anderson’s daughter Joan Maresh. The Andersons died from multiple gunshot wounds to the head. Mary Lou Anderson, Steve Anderson’s daughter, was originally indicted along with appellant for the capital murder of the Andersons. Mary Lou Anderson was convicted of the capital murder of Steve Anderson and assessed punishment at death. Subsequently she testified for the State at appellant’s capital murder trial and he was also convicted and assessed death. Within ten days after testifying against appellant, Anderson was granted a new trial and pled guilty to murder, and was assessed fifty years by the court. In Granger v. State, 605 S.W.2d 602 (Tex.Cr.App.1980), we reversed appellant’s capital murder conviction because the nonaccomplice testimony failed to sufficiently corroborate the element of remuneration which was necessary to sustain the conviction. We noted that appellant could be retried for the lesser included offense of murder.

Appellant was reindicted for murder. At his second trial, the State called Mary Lou Anderson as a witness, but she refused to testify. Although the State offered her immunity with the court’s consent, and the court ordered her to testify, she steadfastly refused to testify and was held in contempt. Over objection, the State was allowed to read her testimony given at appellant’s capital murder trial.

On appeal before the Court of Appeals, appellant challenged the use of this former testimony. The Court of Appeals held that the testimony of a witness given at a former trial of the defendant for the same offense is admissible upon retrial if the witness is “unavailable” and if the defendant had the opportunity to effectively cross-examine the witness at the prior proceeding.

After holding that the witness Anderson was in effect “unavailable” because of her refusal to testify, the court examined the adequacy of the cross-examination of Anderson at the first trial and concluded that the witness was not effectively cross-examined and thus her prior testimony was erroneously admitted into evidence. The ineffective cross-examination was due to the State’s failure to disclose to appellant at his first trial that Anderson’s testimony was induced by an arrangement with the State to reduce her punishment of death to a term of years. The court held that the nondisclosure contravened the holdings of Burkhalter v. State, 493 S.W.2d 214 (Tex. Cr.App.1973) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972):

“By whatever description, ‘deal,’ ‘arrangement,’ ‘or tacit understanding,’ the fact is that the State agreed to reward Mary Lou Anderson for her testimony by reducing her death sentence to a term of years. This was known to the presiding judge, the prosecutor, [Anderson’s] defense attorney and Anderson. Yet Anderson was allowed to mislead the jury by denying that this played any part in her motivation to testify against appellant ...
“Although cross-examined about her motives, Anderson did not equivocate. As such, counsel for appellant was unable to develop the extent of any deal between the State and Anderson. Furthermore, in allowing Anderson to testify that no deal or expectation existed, the State recklessly mislead the jury about Anderson’s motives and prevented an effective cross-examination of Anderson.
“This situation brings the case within the rules announced in Burkhalter, [supra, 493 S.W.2d 214] and Giglio [supra, 92 S.Ct. 763]. As such we find that the non-disclosure of the arrangements made between the State and the witness Anderson deprived appellant of his right to effective cross-examination.” 653 S.W.2d at 876 (emphasis supplied).

The court further held that such error was not cured in the second trial by testimony that informed the jury of the “understanding” between Anderson and the State because such disclosure could not remedy the ineffective cross-examination at the former trial.

We agree with the Court of Appeals’ conclusion that an agreement did in fact exist between the State and the witness, and that it should have been presented to the jury in appellant’s first trial under the principles of Burkhalter v. State, supra. However we must examine the court’s holding that the error which occurred at the first trial was incurable at a subsequent trial.

In Burkhalter v. State, supra, an accomplice witness on cross-examination denied the existence of a deal with the State. The conviction was reversed because the court improperly refused to allow the defendant to prove the agreement by calling the witness’ lawyer to testify. We stated that even assuming that the witness did not know of the agreement, “the prosecutor’s silence as to the plan not to prosecute conveyed an impression to the jury which the State knew to be false and one which should have been corrected.” Id., 493 S.W.2d at 218. Furthermore, we stated that due process demands that the “State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction. This rule does not cease to apply merely because the false testimony goes only to the credibility of a witness.” Id. We stated in Burkhalter, however, that the State could have prevented a denial of due process by revealing to the jury that there was in fact an agreement with the witness.

In the instant case, Anderson was cross-examined extensively by appellant’s counsel at the first trial about the murder in question. He also asked her repeatedly if her testimony was induced in any way by an agreement with the State, which she persistently denied. It appears from the record that appellant and his counsel were not told about the State’s arrangement at the first trial. Had the State disclosed the arrangement after Anderson testified, this would have impeached her credibility, and cured any due process violations. See Burkhalter v. State, supra.

Accordingly, we cannot agree with the Court of Appeals’ statement that Anderson’s testimony was permanently tainted because of the nondisclosure of the State’s arrangement with Anderson at the first trial.

Nevertheless, we agree that the conviction should be reversed because of the manner in which the State .used Anderson’s testimony at appellant's trial below. At no time did the State concede that it had an arrangement with Anderson or her attorney. In fact, the State read into the record Anderson’s former testimony denying any arrangement with the State.

The State contends that any error was cured because appellant was allowed to call Anderson’s attorney at the second trial, who testified in front of the jury about the arrangement. The jury also knew that Anderson’s death sentence had been reduced to fifty years.

A similar contention was raised and rejected in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). In Na-pue, an accomplice witness testified falsely on cross-examination that he had received no promise of consideration in return for his testimony. The Illinois Supreme Court found that although this testimony was false and the State knew it to be so, the defendant was not entitled to relief “since the jury had already been apprised that [the public defender] ‘was going to do what he could’ in aid of [the witness], and ‘was trying to get something did [sic]’ for him.” The United States Supreme Court reversed, stating in part:

"A. Because Feryl killed my parents and I just felt like I should tell my part of it.
“It is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment ... The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears ...
“The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of a witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend ...
“We do not believe that the fact that the jury was apprised of other grounds for believing that the witness ... may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one.” 79 S.Ct. at 1177 (emphasis supplied).

In the instant case not only did the State stand silent when Anderson testified falsely at the first trial, it offered such false testimony at appellant’s second trial. We do not believe that the conflicting evidence regarding the arrangement presented to the jury is sufficient to turn “what was otherwise a tainted trial into a fair one.” Napue v. Illinois, supra.. Under Giglio v. United States, supra, a new trial is required if the false testimony could in any reasonable likelihood have affected the judgment of the jury. 92 S.Ct. at 766. It is clear that appellant could not have been convicted without Anderson’s testimony. Under these circumstances we cannot conclude that the judgment of the jury could not have been reasonably affected by this testimony, and thus the conviction must be reversed.

Turning to the sufficiency of the evidence, we note that this is a circumstantial evidence case. On appeal, this Court must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983).

Mary Lou Anderson’s testimony, read into evidence by the State from the record of appellant’s capital murder trial, revealed the following: In late 1977, Anderson was in financial difficulty because of bad checks she had written. She discussed several schemes for raising money with appellant, and told him that she was the beneficiary of a $5,000.00 life insurance policy which she had taken out on her father’s life. On the evening of January 2, 1978, appellant came to her apartment in LaFayette, Louisiana, and informed her that he was going to kill her parents. She accompanied appellant to the apartment of Darryl Comeaux where they borrowed a Monte Carlo automobile and obtained a .25 caliber pistol. They went to the Hacienda lounge for a short while and then drove to Texas, stopping to spend the night in Beaumont. On January 3, 1978 they went to a Gibson’s store in Beaumont where appellant purchased tape and Anderson purchased a box of .25 caliber ammunition. After leaving Beaumont, they had a flat tire near Houston and were given a ride to a nearby service station where appellant purchased a tire. They replaced the tire and proceeded to Sugarland, arriving about 6:00 p.m. After driving past Anderson’s father’s home, appellant stopped the car, put out the rear license light and tied Anderson with a rope, telling her he would kill her and her son if she tried to escape or if she said anything. They returned and parked near her father’s home, and appellant entered the house, returning ten to fifteen minutes later with blood on his gloves and a “wild-eyed” look. As they left Sugarland, appellant drove the wrong way on a one-way street, passing a patrol car. Later, on their way back to Louisiana, Anderson threw the excess ammunition out of the window and appellant threw the gun and gloves off of a bridge.

The bodies of Steve and Marjorie Anderson were found at approximately 6:40 p.m. on January 3, 1978 by Marjorie Anderson’s daughter. Dr. Joseph Jachimczyk, the Harris County Medical Examiner, performed the autopsies on the bodies and testified that both victims were bound at the wrists and gagged with adhesive tape. Each had been shot three times in the head and he recovered .25 caliber slugs from the bodies.

Before deciding whether this evidence is sufficient to sustain the conviction, we must determine whether the testimony of Anderson, an accomplice witness, is sufficiently corroborated as required by Art. 38.14, V.A.C.C.P., which provides:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

In Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968), this Court wrote:

“The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise it is not.” 427 S.W.2d at 632.

All the facts and circumstances in evidence may be viewed to furnish the necessary corroboration, and the corroborative evidence may be circumstantial or direct. Paulus v. State, 633 S.W.2d 827 (Tex.Cr. App.1981). However it is not necessary that the corroboration directly link the accused to the crime, or be sufficient in itself to establish guilt. Id.; see also Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr. App.1972).

Darryl Comeaux testified that on January 2, 1978, appellant and Anderson came to his apartment in LaFayette, Louisiana and appellant asked to borrow a car and a gun. Comeaux loaned appellant a Monte Carlo, and went with appellant to Comeaux’s brother’s residence where appellant borrowed a .25 caliber gun. Co-meaux did not know when the car was returned, but stated that he saw appellant “a while after” and asked him about the gun. Appellant stated that he “got in a bind” and “got rid of” the gun. Comeaux also testified that one of the tires on the Monte Carlo had been replaced.

Thomas Collone, the manager of the Hacienda lounge in LaFayette, and who had known appellant for over 10 years, testified that on the evening of January 2, 1978, appellant came into the club and asked him if he could borrow .25 caliber shells.

Two employees of the Beaumont Gibson’s store testified at trial. One testified that on January 3, 1978 she sold a box of .25 caliber bullets to Anderson who was required to sign her name and present identification. The other witness testified that on the same date, she sold appellant two rolls of curity brand adhesive tape.

The owner of a service station at Winnie, testified that he sold a tire to appellant on January 3, 1978. He identified the tire taken from the Monte Carlo as the same type of tire sold by him on that date.

A convenience store clerk in DeWalt, approximately eight miles from Sugarland, testified that she sold cigarettes and beer to appellant “on or about the 1st day of January, 1978.”

John Claussen, a police officer in Sugar-land, testified that on the evening of January 3, 1978, he passed a Monte Carlo with Louisiana plates going the wrong way on a one-way street in Sugarland. A few minutes later he was flagged down by Joan Maresh, Marjorie Anderson’s daughter, who took him to the murder scene. He testified that the bodies were bound and gagged with adhesive tape, that he found seven .25 caliber casings at the scene, and that he found a blood-smudged spool of tape in the Andersons’ yard.

Officer L. J. Bertrand of the Louisiana State Police testified that he located the Monte Carlo in Louisiana and recovered a new tire from it. He also found a live .25 caliber round in the Monte Carlo.

We conclude that the nonaccomplice testimony in the instant case tended to connect appellant with the offense and thus was sufficient to corroborate the accomplice testimony of Anderson. The corroborating testimony placed appellant near the scene of the crime at the time of its commission. See Passmore v. State, 617 S.W.2d 682 (Tex.Cr.App.1981). Furthermore it placed appellant in the company of the accomplice. Finally it provided evidence of incriminating character by showing that appellant borrowed a .25 caliber gun which he later got rid of, that he purchased adhesive tape on the date of the offense, and that he borrowed a Monte Carlo. The evidence showed that the victims were killed by .25 caliber bullets and were bound and gagged with adhesive tape. Furthermore a Monte Carlo was seen near the scene and later, the Monte Carlo appellant borrowed was found to have a new tire on it purchased in Texas, and a live .25 caliber bullet was found in the same car.

Since Anderson’s testimony was sufficiently corroborated, we find the evidence to be sufficient to sustain the conviction. As heretorefore noted, we further agree with the Court of Appeals’ conclusion that the judgment of the trial court must be reversed, but we hold that reversal is mandated due to the State’s nondisclosure at the trial below of an agreement for leniency in exchange for Anderson’s testimony.

The judgment of the Court of Appeals is affirmed.

      . The record clearly reflects that there was in fact an agreement, albeit a tacit one, to reward Anderson for her testimony. The evidence of this agreement is set out in the opinion of the Court of Appeals, 653 S.W.2d at 874, 875.

      . The State read the following into the record: “Q. [By Mr. Adamo, appellant’s counsel at the first trial] Isn’t it true, Mrs. Anderson, that you have expectation and a hope that after you testify, the State will work something out with your lawyers to come off of the death sentence, to work out some term of years other than death?
      "A. [By Anderson] No, sir.
      "Q. You have no expectation of that whatsoever?
      "A. No, I don’t.
      "Q. Is it true that it has been communicated to you from your attorney ... that all you have to do is trust the prosecutor and he will work something out for you?
      "A. No, sir.
      "Q. ... why are you testifying in this case? Let me ask you that.
      "Q. [By Mr. Adamo] Now, isn’t it a fact that the reason that you’re testifying here today is to save your life?
      "A. [Anderson] No, sir.
      "Q. Isn't it a fact that you received a communication to trust your lawyer and trust the prosecutor, although they won’t promise you anything about the death case now, you are expecting something to happen?
      “A. No, sir.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Larry SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 68906.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1984.
    Rehearing Denied Jan. 30, 1985.

      C. Wayne Huff, Mike Barclay, Mark Stoltz, Dallas (Court-Appointed), for appellant.
    Henry Wade, Dist. Atty., Anne B. Weth-erholt, Norman Kinne, Rider Scott and Marian Bentley, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder. V.T.C.A., Penal Code, § 19.03(a)(3). The jury answered affirmatively the three special issues submitted, and punishment was assessed at death. Article 37.071, V.A.C.C.P., and V.T.C.A., Penal Code, § 12.31(a).

On appeal appellant contends that the court erred in sustaining three of the State’s challenges for cause during voir dire examination of the jury panel, including a claimed violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In other grounds of error appellant complains of the introduction of certain photographs of the deceased, of an officer’s testimony that substance in a photograph was blood, and of the introduction of a cash register drawer. He also urges the court erred in admitting details of a prior conviction and details of an unadjudicated robbery offense, and erred in admitting a pen packet because the prior felony conviction was based on an information without a waiver of indictment.

Appellant further challenges the sufficiency of the evidence to support the second special issue under Article 37.071, supra, and to show he would commit criminal acts of violence that would constitute a continuing threat to society. He also complains of certain questions propounded to witnesses at the penalty stage of the trial and attacks V.T.C.A., Penal Code, § 12.-31(a), and Article 37.071, supra, as being in violation of the constitutional prohibition against cruel and unusual punishment.

On February 3, 1978, Fred Norris was a 16-year-old school boy who worked part time two nights a week at the Seven-Eleven store at Camp Wisdom and Polk in Dallas. He worked from midnight into the early morning hours. Norris knew Mike Mason, the deceased, the night manager of the store. They had been friends for seven years.

At 3:15 a.m. on the date in question Mason and Norris were the only employees on duty. Norris was sweeping the front porch in a well-lighted area when a man walked by and spoke to him. The man was wearing a toboggan cap but no disguise on his face. Norris identified the man as the appellant whom Norris observed enter the store. After finishing the sweeping, Norris entered the store and at this time another man also entered the store. Norris proceeded to the frozen food section to get a pizza. When he turned around, he saw the appellant pull down the cap over his face converting into a ski mask. Appellant had a pistol in his hand and was standing at the main register across from Mason. The second man had positioned himself to the left. The cash drawer was on the counter.

The second man went around the counter and threw Mason to the ground, shoving his face into the floor. Both appellant and the second man demanded Mason open the safe. Appellant stated, “Open the safe or I’ll blow your head off.” Mason explained that he didn’t have the two keys needed and could not open the safe. The second man kicked Mason all over his body, stomped on his hands, and came from behind the counter taking the cash drawer with him. As he left appellant, still pointing the pistol, backed towards the front doors to exit, and then came forward and leaned over the counter. Holding the pistol with both hands, appellant fired one shot at Mason who was lying flat on the floor, face down. After appellant left the store, Norris spoke to Mason, and in a weak voice he uttered the name “Fred.” Norris found he could not use the telephone and ran across the street to the Jack in the Box restaurant. Someone there called the police.

Dallas Police Officer Bill Parker testified he arrested Glouster Ray Smith, the second man, in the afternoon of February 3, 1978. At the time of the arrest the officer recovered a fully loaded .22 caliber Clerke pistol and found a ski mask on the floorboard of the car in which the suspect was arrested. At 4 a.m. on February 4, 1978, the second man led the witness to a wooded area near the 5100 block of Watson Street in Dallas where a cash drawer or tray with a chip on it was found. A cash register receipt from the cash drawer was shown to be from the cash register at the Seven-Eleven store in question. Appellant’s fingerprints were found on the cash drawer.

When police went to arrest the appellant, he fled. The police gave chase, and after searching the neighborhood, found him hiding in a bedroom closet.

The cause of death was shown to be a bullet wound to the left back of the 26-year-old male. The bullet traveled through the aorta and pulmonary artery. The bullet which killed Mason was a .22 caliber hollow-point tip. Norris identified the ski mask found when the second man was arrested as the ski mask used in the robbery, and identified State’s exhibit 15 as appearing similar to the pistol used by appellant during the offense.

Appellant offered no evidence at the guilt stage of the proceeding.

At the penalty stage of the trial the State offered evidence of appellant’s reputation for being a peaceful and law-abiding person, evidence of his prior convictions in Colorado, evidence of an unadjudicated robbery in Colorado, and evidence from a psychiatrist as to appellant’s future dangerousness. Appellant produced a psychologist who testified that psychiatric testimony could not predict future dangerousness.

The jury affirmatively answered all three special issues submitted under Article 37.-071, V.A.C.C.P.

Appellant recognizes the provisions of Article 35.16(b)(3), and that his contention

Appellant initially urges the trial court erred in sustaining the State’s challenge for cause to prospective juror Johnnie Mae Hall because she could never assess the minimum punishment in a felony murder case. was rejected in Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978); Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978); and Moore v. State, 542 S.W.2d 664, 669 (Tex. Cr.App.1976). He asks that these decisions be overturned because otherwise he will be deprived of “due process” under the Texas Constitution and of equal protection under both the federal and state constitutions.

He argues that the prosecution is not really harmed by a prospective juror who wants to assess more than the minimum in the event of a conviction.

This Court discussed the application of Article 35.16(b)(3) in Huffman v. State, 450 S.W.2d 858, 861-862 (Tex.Cr.App.1970), and we adhere to the reasoning there. See also Cherry v. State, 488 S.W.2d 744, 751 (Tex. Cr.App.1972).

In Hernandez v. State, 643 S.W.2d 397, 402 (Tex.Cr.App.1982), a capital murder case, this Court wrote:

“We find no error in the trial court’s exclusion of Gomez; his answers certainly reflect a bias against the minimum punishment. See Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978); Moore v. State, 542 S.W.2d 664 (Tex.Cr. App.1976). Furthermore, the appellant has not shown that he was tried by a jury to which he had a legitimate objection. See Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973).”

The ground of error is overruled.

Appellant contends the court erred in sustaining the State’s challenge for cause to venireman Eaker when he was not disqualified under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Spe-daily, appellant asserts Eaker was not shown to be so irrevocably opposed to capital punishment that he could not follow the law or obey the instructions of the trial court.

Mark Eaker stated he was opposed to the policy of death as a punishment for crime, but understood it was the law. He did not relish the possibility of being placed in position to decide whether the death penalty would be imposed. Eaker related he had served in the Navy on a nuclear submarine, and had the duty of seeing that missiles were targeted on selected sites that changed from day to day or week to week. While he agreed with the defense policy of using nuclear submarines on patrol, he questioned, even doubted he' would have ever obeyed any command to fire a missile knowing the number of resulting deaths of Soviet citizens. When asked if he could take and follow the oath prescribed by Article 35.22, V.A.C.C.P., he eventually stated he would have no difficulty with the guilt stage of the trial as that would be determining “a historical fact,” but he had serious reservations about answering the questions at the penalty stage which could result in the death penalty. As to the second special issue under Article 37.071, V.A.C. C.P., he commented:

“Well, it’s a silly law, because beyond a reasonable doubt there is a probability that exists that everyone in this room is going to commit an act of violence...
“My guess is that most members of the legislature don’t understand what probability means.”

Eaker gave some conflicting responses. At times he seems clearly disqualified under Witherspoon and then by his own statements seemed to rehabilitate himself.

When asked, however, if he could follow the Article 35.22 oath with regard to the special issues at the penalty stage of the trial, he repeatedly stated that even if the State proved from the evidence beyond a reasonable doubt that the questions should be answered “yes,” he would violate the oath and vote “no” because of his view on the death penalty. He then added, however, that under some circumstances he could answer “yes” to the special issues if the State sustained its burden. After again stating his opposition to the death penalty, the court took over the interrogation to resolve any conflict. Finally the record reflects:

“The Court: ... Your feelings about the death - penalty are so strong you would ignore the law or violate your oath in some way?
“Prospective Juror (Eaker): Yes, I would.”

Thereafter the court sustained the State’s challenge for cause over objection that Eaker had not been shown to be disqualified under Witherspoon and Adams.

In Witherspoon v. Illinois, supra, the United States Supreme Court held that a prospective juror may not be excluded by the trial court for cause unless that person makes it absolutely and unmistakably clear that 1) he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, or 2) that the prospective juror’s attitude towards the death penalty would prevent him from making an impartial decision as to the defendant’s guilt.

In Adams v. Texas, 448 U.S. 38,100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the question presented was whether Texas contravened the Sixth and Fourteenth Amendments of the United States Constitution as construed and applied in Witherspoon when it excluded members of the venire from jury service because they were unable to state under oath as prescribed by V.T.C.A., Penal Code, § 12.31(b), that the mandatory penalty of death or life imprisonment in a capital murder case would not affect their deliberations on any issue of fact.

The United States Supreme Court reversed the Adams conviction and set aside the death penalty imposed holding that Witherspoon and said § 12.31(b) may not co-exist as separate and independent bases for excluding prospective jurors so as to permit exclusion under § 12.31(b) on a ground broader than permitted by Wither-spoon. The Court noted, however, that the State could, consistent with Witherspoon, use § 12.31(b) to exclude prospective jurors whose views in capital punishment are such as to make them unable to follow the law or obey their oaths.

In Adams the Court, referring to note 21 of the Witherspoon opinion, stated:

“This statement seems clearly designed to accommodate the State’s legitimate interest in obtaining jurors who could follow their instructions and obey their oaths. For example, a juror would no doubt violate his oath if he were not impartial on the question of guilt...
“[T]he general proposition [is] that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.
* * * * * *

If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Wither-spoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality.

* * * * * *

“We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths.”

In Williams v. State, 622 S.W.2d 116, 118 (Tex.Cr.App.1981), it was held that certain veniremen whose views on the death penalty would have prevented or substantially impaired their performance as jurors in accordance with their instructions were properly excused in light of Witherspoon and Adams. See also Bass v. State, 622 S.W.2d 101, 108 (Tex.Cr.App.1981); Porter v. State, 623 S.W.2d 374 (Tex.Cr.App.1981); Griffin v. State, 665 S.W.2d 762 (Tex.Cr.App.1983).

Based on the record before us, we conclude that venireman Eaker was unable or unwilling to consider the statutory special issues with the degree of impartiality to which the State was entitled. The testimony of Eaker made it clear that he “could not be trusted to abide by existing law or follow conscientiously the instructions of the trial judge” without violating or disobeying his oath to render a true verdict according to the law and evidence in the case. Porter v. State, 623 S.W.2d 374, 379 (Tex.Cr.App.1981). See also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Ex parte Chambers, 612 S.W.2d 572 (Tex.Cr.App.1981); Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App.1980).

The trial judge did not err in sustaining the State’s challenge for cause. See Smith v. State, 676 S.W.2d 379 (Tex.Cr. App.1984). Appellant’s ground of error is overruled.

Next appellant contends the trial court erred in sustaining the State’s challenge for cause to venireman Thomason.

Bonnie Lou Thomason told the prosecutor she knew Dr. Holbrook whose name was on a list of witnesses. Stating she was nervous and on medication, Thomason related that five years earlier she had suffered a nervous breakdown. While Dr. Holbrook was not her treating psychiatrist, he worked in the same clinic and had been in the room when electric shock treatments were administered to her. She stated she had confidence in Holbrook. It was explained that Dr. Holbrook was now deceased, but that his reports might be admissible and form a part of the evidence in the instance case. When asked, Thomason stated she would “possibly” give more weight to Holbrook’s testimony than any other witness and have a bias in favor of his testimony. Thomason told appellant’s counsel she would weigh Holbrook’s testimony in light of her experience and wouldn’t believe it if it was unreasonable. Upon interrogation by the court, she said she trusted Dr. Holbrook and would have a bias in favor of his testimony and would possibly give his testimony more weight. To the prosecutor she related Holbrook’s testimony would be more believable to her because she knew him. She knew she would be expected to put aside any preconceived notions about the credibility of a witness’ testimony, but didn’t know if she could do that with Holbrook’s testimony.

The court sustained the State’s challenge for cause over objection that bias had not been shown.

The trial court has wide discretion over the course of the voir dire examination of the jury panel. Abron v. State, 523 5.W.2d 405 (Tex.Cr.App.1975); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976).

In order to complain of the improper exclusion of a qualified juror the defendant must show he was injured or forced to proceed with an objectionable juror. Page v. State, 486 S.W.2d 300 (Tex.Cr.App.1972). See also Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974). A mere assertion in an appellate brief will not constitute the proper showing.

In McCary v. State, 477 S.W.2d 624 (Tex.Cr.App.1972), a prosecution for possession of heroin, a prospective juror stated her son-in-law was indicted for possession of marijuana, and while she would try to be fair and impartial, she felt the facts “are so close to my own family would probably influence me.” Although she was excused over objection, this Court found no abuse of discretion. See also Noah v. State, 495 S.W.2d 260 (Tex.Cr.App.1973).

In Pearce v. State, 513 S.W.2d 539 (Tex.Cr.App.1974), a prospective juror was improperly excused as there was no challenge for cause by the State and no absolute disqualification. This Court held that the action was not prejudicial in absence of a showing by the defendant that he had an unfair jury or was otherwise harmed. See Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973).

In the instant case even if it can be argued that the action of the trial court was improper, there is no showing that appellant was tried by an unfair jury or was otherwise harmed. The ground of error is overruled.

Appellant’s next two grounds of error complain of the admission of three photographs of the deceased. In appellant’s fourth ground of error, appellant urges that the trial court erred in admitting two photographs (State’s Exhibits 12 and 13), over appellant’s objections, which depicted the deceased at the scene of the crime. Specifically, appellant contends that the State failed to lay the proper predicate for the admission of the photographs. Appellant’s fifth ground of error alleges that the trial court erred in overruling his objection to the introduction in evidence of a photograph (State’s Exhibit 14) taken of the deceased at the scene due to the fact that the body as depicted in the photograph had been moved from the location that the deceased died.

The record reflects that Fred Milligan, a police officer assigned to the Physical Evidence Section of the Dallas Police Department, took the photographs (State’s Exhibit Nos. 12, 13 and 14) of the deceased at the scene and testified at trial that State’s Exhibit Nos. 12 and 13 showed the body as he saw it when he arrived at the scene of the crime at about 3:00 a.m. on February 3, 1978. Appellant’s objection to the admission of State’s Exhibit Nos. 12 and 13 on the ground that Milligan did not know whether the body was in the exact position as when the deceased died was overruled. As to State’s Exhibit No. 14, Milligan testified that the body of deceased was rolled over at the scene prior to taking that photograph in an effort to ascertain what, if anything, was under the body. We will address appellant’s ground of error #4 first.

The appellant relies upon Goss v. State, 549 S.W.2d 404 (Tex.Cr.App.1978), in support of his contention that the State failed to properly authenticate the photographs as depicting the same condition as at the scene of the crime by someone with personal knowledge. Such reliance is misplaced. First, the record reflects Milligan had personal knowledge for he personally took the photographs and then testified before the jury that State’s Exhibit Nos. 12 and 13 showed the body as he arrived at the scene shortly after the shooting occurred. Furthermore, reversible error occurred in Goss v. State, supra, because the witness therein did not testify that she had personal knowledge that the photographs actually depicted what they purported to depict. In appellant’s case, Milligan did testify that the photographs actually depicted what they purported to depict.

In Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972), we held that

“... if a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible.” 475 S.W.2d at 267.

Furthermore, in Clark v. State, 627 S.W.2d 693 (Tex.Cr.App.1981), we held that photographs depicting the deceased lying in blood at the scene were admissible because a verbal description of the body and the scene were admissible. Additionally, such evidence is useful as an aid to the jury in interpreting and understanding the testimony adduced at trial. Martin v. State, supra; Smith v. State, 460 S.W.2d 143 (Tex.Cr.App.1970); Rivera v. State, 437 S.W.2d 855 (Tex.Cr.App.1969). As we stated in Harrington v. State, 547 S.W.2d 621 (Tex.Cr.App.1977):

“If a photograph is competent, material and relevant to the issues on trial, the photograph will not be inadmissible because it is gruesome, unless it is offered solely to inflame the minds of the jury.” 547 S.W.2d at 625.

Determination as to the admissibility of photographic evidence rests largely in the discretion of the trial judge. Lanham v. State, 474 S.W.2d 197 (Tex.Cr.App.1971).

Based upon the record, we conclude it was not an abuse of discretion in admitting State’s Exhibit Nos. 12 and 13 into evidence. Hence, appellant’s fourth ground of error is overruled.

With reference to appellant’s ground of error number five, appellant’s reliance on Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1975), is misplaced. This Court in Bailey v. State, supra, stated:

“Terry cannot be construed to prevent the admission of relevant photographs merely because the deceased has been removed to clinical surroundings ... Only where the results of surgery have obfuscated the results of the crime will otherwise accurate depictions be inadmissible.” 532 S.W.2d at 321.

The Court was referring to Terry v. State, 491 S.W.2d 161 (Tex.Cr.App.1973), where we held that four photographs of a child’s body taken after an autopsy had been performed were inadmissible for the reason that they depicted “massive mutilation of the subject matter caused by the surgery in performing the autopsy.” This court went on to say in Bailey v. State, supra, with reference to the photographs in Terry, that “... in the absence of explanation, their probative value was outweighed by their inflammatory nature.” 532 S.W.2d at 321.

In appellant’s case, we do not have any “massive mutilation of the subject matter”; in fact, the record reflects no change in the physical condition of the deceased other than being rolled over, face up. Furthermore, Officer Milligan testified that the body was rolled over and the reason for such action. We find no abuse of discretion in the admission of State’s Exhibit 14. Appellant’s fifth ground of error is overruled.

In appellant’s next ground of error, he alleges that the trial court erred in overruling his objection to a police officer’s testimonyh that a substance in a photograph was blood. The record reflects that Officer Milligan took photographs, including State’s Exhibit Nos. 12 and 14, of the crime scene. Upon being shown State’s Exhibit No. 12 and asked whether a large blood spot depicted therein was human blood, appellant objected “... unless he lays a predicate.” That objection was overruled by the trial court.

The prosecutor then proceeded to ask Milligan regarding his prior experience at murder scenes, and whether he had come upon other scenes of blood and had the opportunity to form an opinion as to whether such fluids were blood. Milligan answered in the affirmative.

Thereafter, the following questioning of Milligan by the prosecutor took place:

“Q: Did you have an opportunity to form an opinion as to whether or not the dark red spots shown on State’s Exhibit 12 was, in fact, of human blood origin?
Yes, sir. >
And what’s that opinion? .©
That it was human blood.” >

Then later on with reference to State s Exhibit 14, another photograph taken of the deceased at the scene by Milligan, the following transpired between the prosecutor and Milligan:

“Q: All right. Would you show us, first of all, the wet spots both on the carpet and the body of Mr. Mason, if you could, please, Officer Milligan.
“A: This is the picture of the wet spot I was talking about earlier. This is a photograph of blood and the telephone. U* * *
“Q: That is in the middle of a dark red substance. What did that appear to be?
“A: Blood.”

We first note that appellant’s objection originally was too general and, therefore, failed to preserve any error on appeal. Williams v. State, 596 S.W.2d 862, 866 (Tex.Cr.App.1980); Stutes v. State, 530 S.W.2d 309 (Tex.Cr.App.1975).

Assuming arguendo, however, that appellant’s objection was specific and preserved the error complained of, we note that the sufficiency of a predicate is addressed to the discretion of the trial court and will not be reversed absent an abuse of discretion, Anderson v. State, 621 S.W.2d 805 (Tex.Cr.App.1981). In Denham v. State, 574 S.W.2d 129 (Tex.Cr.App.1978), we held that a lay witness may give his opinion regarding things within his common knowledge. Further, a police officer may give an opinion concerning physical facts he has observed which are within his experience. Holding v. State, 460 S.W.2d 133 (Tex.Cr.App.1970). The record herein reflects that Milligan had past experience investigating murder scenes and based upon that experience, was competent to testify to the identity of blood. We conclude that there was no abuse of discretion in allowing Milligan to testify to the identity of blood in the complained of photographs.

Based on all of the foregoing, appellant’s sixth ground of error is overruled.

Appellant complains in his seventh ground of error that the trial court erred in overruling his objection to the introduction of State’s Exhibit No. 22, a cash drawer or tray from a cash register. The record reflects that around 4:00 a.m., approximately 25 hours after the murder herein, Sgt. Parker and Investigator Maxim, both Dallas police officers, accompanied Gloster Ray Smith to an area of uninhabited woods. Approximately 100 feet off the street into the woods, a cash tray was recovered. Subsequent analysis and examination of that tray revealed fingerprints which matched those of the appellant.

Further testimony revealed that the cash tray which was actually taken in the robbery was damaged with a chip nicked out of its side. Although the record is not completely clear as to what ultimately happened to that cash tray, the testimony reveals it was lost, apparently being disposed of by Southland Corporation, of which Seven-Eleven is a subsidiary. It was further developed that State’s Exhibit 22 was a duplicate of the original cash tray taken in the robbery, with the exception that it did not have the damaged chip out of its side.

Appellant objected to the admission of State’s Exhibit 22 on the grounds that a proper predicate had not been laid, and that it was irrelevant, immaterial and incompetent. That objection was overruled and State’s Exhibit 22 was admitted.

At the outset, we note that appellant’s objection was too general and vague to apprise the trial court of the alleged error and, thus, failed to preserve anything for review. Williams v. State, 596 S.W.2d 862, 866 (Tex.Cr.App.1980); Garcia v. State, 573 S.W.2d 12, 16 (Tex.Cr.App.1978).

We, however, will proceed to address the alleged error as if it had been properly preserved. It is within the discretion of the trial court to determine the sufficiency of a predicate and absent an abuse of discretion, the trial court’s decision will not be reversed. Anderson v. State, 621 S.W.2d 805, 809-810 (Tex.Cr.App.1981).

Further, this Court has held that it is within the discretion of the trial court to permit a witness to use a physical object to illustrate his testimony. See Edwards v. State, 171 Tex.Cr.R. 70, 344 S.W.2d 687 (1961). When that object is helpful in clarifying a witness’ testimony for the jury and there is little or no danger that the jury will be misled into believing that the admitted object is the actual item in question but rather just a representation or similarity of the actual object in question, then no reversible error will arise unless the prejudicial effect outweighs its probative value. See Marion v. State, 387 S.W.2d 56 (Tex.Cr.App.1964).

In Marion v. State, supra, we held that no error arose from allowing a pathologist use of a plastic skull which was a correct replica of a human skull, in order to make her testimony clearer to the jury. In Jenes v. State, 127 Tex.Cr.R. 518, 77 S.W.2d 681 (Tex.Cr.App.1935), we held there was no error in allowing a police officer to appear in court wearing a uniform identified by a witness as the same kind of uniform worn by the deceased.

In appellant’s case, the testimony before the jury made it clear that State’s Exhibit 22 was not the actual cash tray taken in the robbery in question, but an accurate duplicate of same. Further, the use of such tray aided the jury in understanding the testimony regarding the lack of Smith’s fingerprints on the original cash tray and the presence of appellant’s thereon. Based on the foregoing, we conclude

that the trial court did not abuse his discretion in admitting State’s Exhibit 22. Appellant’s seventh ground of error is overruled. In two grounds of error appellant contends the court erred in admitting, over objections, details of his prior Colorado conviction and details of an unadjudicated robbery offense occurring in Colorado.

Appellant argues that in so far as Article 37.071, V.A.C.C.P., permits a different and broad standard of evidence as to prior criminal record than Article 37.07, V.A.C.C.P., it is in violation of the equal protection provision of the Fourteenth Amendment, United States Constitution.

Article 37.071(a), V.A.C.C.P., provides in part:

“... In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas.” (Emphasis supplied.)

Thus the trial court at the penalty stage of a capital murder trial has wide discretion in admitting or excluding evidence. Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977); Felder v. State, 564 S.W.2d 776 (Tex.Cr.App.1978), cert. den. 440 U.S. 950, 99 S.Ct. 1433, 59 L.Ed.2d 640; Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979); McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979); Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App.1980). See also Green v. State, 587 S.W.2d 167 (Tex.Cr.App.1979); Davis v. State, 597 S.W.2d 358 (Tex.Cr.App.1980), cert. den. 449 U.S. 976, 101 S.Ct. 388, 66 L.Ed.2d 238.

However, it has been said that this discretion extends only to the question of rele-vanee of the facts sought to be proved, and that Article 37.071(a), supra, does not alter the rules of evidence insofar as the manner of proof is concerned. See Porter v. State, 578 S.W.2d 742, 748 (Tex.Cr.App.1979).

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the United States Supreme Court held a jury must have all relevant information to determine the fate of a defendant in a capital case. The details of a prior offense and conviction which reveals its severity, is one such factor of the relevant information a jury must have. See Robinson v. State, supra; Davis v. State, supra.

In Green v. State, supra, it was held under Article 37.071, supra, that it was within the discretion of the court to admit the testimony of a deputy sheriff showing details of a similar murder committed approximately one month after the charged offense including a verbal description of the body of the subsequent victim.

And in Davis v. State, supra, it was held not error for the court in a capital murder case, after admitting four prior convictions of the defendant, to permit the State to call witnesses to testify as to the details of the events which formed the bases of the prior convictions.

It has also been consistently held that evidence of unadjudicated extraneous offenses are admissible at the penalty stage of a capital murder trial absent a showing of unfair surprise. Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.1980), cert. den. 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121; Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1980); Rumbaugh v. State, 629 S.W.2d 747 (Tex.Cr.App.1982). And such admission does not render the proceedings fundamentally unfair or deprive an accused of due process and equal protection of the laws. Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1982), cert, den. 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876. See also Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979).

The grounds of error are overruled.

In appellant’s tenth ground of error, he alleges that the trial court erred in overruling his objection to the introduction of State’s Exhibit 36, a Colorado Penitentiary Packet, for enhancement of punishment purposes which revealed a prior conviction, on the basis that appellant was convicted on an information and no waiver of indictment was shown by the State. In State's Exhibit 36 was a copy of a judgment which did not reflect a waiver of indictment by appellant. Appellant contends that in the absence of a showing that Colorado law allows felony convictions on an information without a waiver of indictment, the laws of Texas apply which allows prosecution of a felony by information only if the defendant waives indictment in open court or by written instrument. See Article 1.141, Y.A.C. C.P. Succinctly, appellant contends the State failed in its proof showing such a waiver and thus, cannot use the prior Colorado conviction for the enhancement purposes herein.

We disagree with appellant’s contention and have so stated previously in Acosta v. State, 650 S.W.2d 827 (Tex.Cr. App.1983). Although, we note at the outset, that the better practice would have been for the State to have either shown a waiver by appellant or that the laws of Colorado do not require indictments, such proof is not required by the State, and no reversible error will result from a lack thereof. See Acosta v. State, supra.

It is true that in the absence of proof of the laws of another state, it is presumed that the law of that state is the same as this state. Ex parte Nichols, 604 S.W.2d 81 (Tex.Cr.App.1979). With that in mind, and because the allegations of prior convictions in appellant’s case were for noncapital felonies which occurred after the effective date of Article 1.141, supra, Article 1.141 is applicable. However, even though “... Texas law requires an affirmative waiver of an indictment in a non-capital felony case, there is no requirement that the waiver of necessity be reflected in a formal judgment or sentence.” Acosta v. State, supra at 833 (Concurring opinion).

Furthermore, where the State makes a prima facie showing that a judgment of conviction used for enhancement purposes and the resulting sentence is regular on its face, there is a presumption of regularity of the judgment. Moore v. State, 629 S.W.2d 266 (Tex.Cr.App.1982). Once the State makes that prima facie showing, the burden shifts to the defendant, who must make an affirmative showing of any defect in the judgment. Moore v. State, supra; Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219 (1937); Carter v. State, 510 S.W.2d 323 (Tex.Cr.App.1974).

In appellant’s case, the judgments, sentences and pen packets were properly certified and appellant was identified with them by a fingerprint expert in open court. The State having made this prima facie showing, the burden shifted to appellant to show that the prior convictions were void for lack of waiver of indictment in each case. The appellant not having presented any affirmative evidence to this effect, failed to sustain his burden. Ground of error number ten is overruled.

In appellant’s eleventh ground of error, he alleges that the prosecutor erred in eliciting from Wendell L. Dickerson, a psychologist who testified as a witness for appellant during the punishment stage of the trial, that if the defense had a psychiatrist examine appellant, then the State would have the right to have a psychiatrist examine him also. Appellant’s objection that the question proposed a misstatement of the law was sustained, and the jury was promptly instructed to disregard the question and any answer. Appellant’s request for a mistrial was denied.

On appeal, appellant urges two new grounds in support of his objection to the prosecutor’s question which were not raised at trial, that being that the prosecutor’s inquiry was one of a question of law which the witness was not qualified to answer and was a direct comment on appellant’s right to remain silent during a psychiatric examination. As these two reasons do not comport with appellant’s objection at trial, they fail to preserve anything for appellate review. Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978); Watkins v. State, 572 S.W.2d 339 (Tex.Cr.App.1978).

Appellant does argue that the prosecutor’s inquiry of Dickerson was a misstatement of the law. Specifically, appellant alleged at trial that only if the insanity defense is raised would the State be entitled to examine appellant without his consent.

We need not examine the contention, for even if it was a misstatement, the instruction to disregard was sufficient to cure any error. Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979); Yarbrough v. State, 617 S.W.2d 221 (Tex.Cr.App.1981). Appellant’s eleventh ground of error is overruled.

Appellant urges that the evidence is insufficient to support the jury’s answer of “yes” to the second special issue submitted under Article 37.071, supra, at the penalty stage of the trial.

In answering special issues under Article 37.071, supra, the jury may consider all of the evidence adduced at the guilt stage of a capital murder trial. Bravo v. State, 627 S.W.2d 152 (Tex.Cr.App.1982); Earvin v. State, 582 S.W.2d 794, 799 (Tex.Cr.App.1979). In fact, circumstances of the offense itself can sustain an affirmative answer to a special issue submitted under Article 37.071, supra. See Mitchell v. State, 650 S.W.2d 801 (Tex.Cr.App.1983).

The facts elicited at the guilt stage of the trial showed that during the course of the robbery after appellant and his companion had already obtained the money, appellant started to leave, but returned to the counter, leaned over and deliberately shot the deceased who was lying on the floor.

In addition to the testimony adduced at the guilt or innocence stage, the evidence elicited during the punishment stage revealed that appellant had a proclivity for crime and violence. Appellant had been convicted in Colorado for aggravated robbery and assault in the first-degree. Debbie Archileta, William D. Martin, James Scott and John Parmenter all testified during the punishment stage that appellant had a bad reputation for being a peaceful and law-abiding citizen.

Several victims of prior offenses committed by appellant also testified. Judy Champion testified that she was working at the Avon Beauty Salon in Denver, Colorado in 1974. At that time, she was four months pregnant. Appellant and another man entered the salon. Appellant revealed a gun, pulled the hammer back and made Champion face the wall. He put the gun to her head. He then ripped the telephone line out of the wall and took money from the cash register. While appellant was doing this, Champion heard a gun go off in the rear of the store. She testified that she felt that she was going to die. As appellant and the other man were leaving the store, they' threatened to “blow [their] brains out” if they stuck their heads out.

Mable Maynard testified in 1974 that she and her husband were in their photographic studio in Denver. Appellant and another man entered the front of the studio where Mable was. Both men pulled guns and said it was a “stick-up.” Appellant pointed the gun at her head. The telephone wire was pulled from the wall by one of the two men. As Mable’s husband, George Maynard, who had been in the back portion of the studio, entered the front portion, the other man fired a shot into the floor saying it was a stick-up. George gave the men his billfold containing over $200.00 in response to their demand for money. Then appellant said, “Now you people know us now, so that’s that.” Appellant then grabbed Mable’s hair, put her face to the wall, and his gun to her head. Mable then heard a struggle begin involving her husband. Four shots were fired. Believing that her husband had been killed, Mable ran towards the back of the building. As she ran, they shot at her, and then left the store.

Mable testified that her 70-year-old husband was shot four times. He had four major operations as a result. He lost most of his pancreas, part of his liver and part of his stomach. One bullet remained in his back, causing difficulty in his walk. It could not be removed for fear by the doctors that paralysis would result. George had to take insulin daily as a consequence. Prior to the shooting, he was in perfect health.

George Maynard corroborated his wife’s testimony. He testified that in 1974 appellant and another man, Tommy Cook, told him it was a stick-up. George gave them his billfold containing $229.00. Appellant said, “You people know us know, so that’s that.” Appellant grabbed Mable’s hair, turned her head towards the wall and put his gun to her head. At this point, George knew he had to do something so he got up and grabbed appellant, knocking him into the doorway. Appellant shot George in the chest, then lowered his gun and shot George twice in the stomach. As George lay on the floor looking up at appellant, appellant pointed the gun at him again. George moved to the left just as appellant fired, but the bullet hit Maynard’s right shoulder and went up his back. The bullet hit where his mouth would have been if he hadn’t moved. George saw his wife run to the rear of the store with appellant shooting at her several times.

Dr. E. Clay Griffith, a psychiatrist, testified hypothetically that a person who had committed the acts testified to in this case would be a sociopath personality of the most dangerous type. There would be an absolute probability that he would commit criminal acts in the future and be a continuing threat to society.

Viewing the facts adduced at the guilt or innocence stage and the punishment stage in the light most favorable to the verdict, we conclude that they were more than sufficient to convince a rational trier of facts beyond a reasonable doubt that there was a probability that appellant would commit further criminal acts of violence and that appellant would constitute a continuing threat to society. Appellant’s reliance on Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980), as to the sufficiency of the evidence is readily distinguishable from this case. In Brasfield v. State, supra, the State simply failed to present any evidence at the punishment stage. In appellant’s case, there is more than sufficient evidence to support the jury’s finding on Special Issue Number Two. Appellant’s twelfth ground of error is overruled.

In appellant’s next ground of error, he alleges that the trial court erred in overruling appellant’s objection to the hypothetical fact situation proposed to Dr. E. Clay Griffith by the State. Dr. Griffith, who had not personally examined appellant, was given a hypothetical question containing facts elicited during appellant’s trial which pertained to appellant in an effort by the State to introduce testimony on special issue number two (potential for future dangerousness). Appellant objected to the posing of a hypothetical question when Griffith had not examined appellant. The trial court overruled the objection.

The question presented to us today is similar to the question presented in Barefoot v. Estelle, 463 U.S. 880,103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), wherein the United States Supreme Court rejected the contention that it violates a defendant’s due process rights to let a psychiatrist who has not personally examined the defendant to testify to a capital murder defendant’s future dangerousness based on hypothetical questions. As the United States Supreme Court stated, “Expert testimony, whether in the form of an opinion based on hypothetical questions or otherwise, is commonly admitted as evidence where it might help the factfinder do its assigned error.”

Barefoot v. Estelle, 463 U.S. at-, 103 S.Ct. 3399,11 L.Ed.2d at 1110. Appellant’s tenth ground of error is overruled.

Next appellant urges that V.T. C.A., Penal Code, § 12.31(a) violates Article VIII of the United States Constitution’s prohibition against cruel and unusual punishment and also Article I, § 13 of the Texas Constitution’s prohibition against cruel and unusual punishment. The United States Supreme Court has addressed this issue and declared that the penalty of death does not constitute cruel and unusual punishment in and of itself. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the United States Supreme Court rejected the contention that the imposition of the death penalty is cruel and unusual punishment under any circumstances. This court has likewise rejected the same argument. White v. State, 629 S.W.2d 701 (Tex.Cr.App.1981). Appellant’s fourteenth and fifteenth grounds of error are overruled.

In appellant’s sixteenth ground of error, he urges that Article 37.071, V.A.C. C.P., which establishes the statutory guidelines under which the death penalty may be imposed, violates the Eighth and Fourteenth Amendments to the United States Constitution. This contention was addressed and rejected by the United States Supreme Court in Jurek v. Texas, supra, wherein, the Supreme Court held Article 37.071, V.A.C.C.P., constitutional. Appellant’s sixteenth ground of error is overruled.

Appellant next argues that Article 37.071, V.A.C.C.P., is unconstitutional because it vests automatic sentencing powers in the trial court. We find no merit in this ground.

First, appellant’s contention fails to recognize that Section 12.31(a), V.A.P.C., and Article 37.071, V.A.C.C.P., does not mandate the death penalty upon conviction of capital murder. Rather, the death penalty is imposed under Article 37.071, supra, only upon an affirmative finding by the jury of three special issues after hearing all evidence as to aggravating or mitigating circumstances.

Appellant’s reliance on Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), is misplaced. The United States Supreme Court in Woodson v. North Carolina, supra, decided the same day as Jurek v. Texas, supra, held the North Carolina death penalty statute unconstitutional because the death penalty was mandatory upon conviction of first-degree murder; there simply was no procedure by which the jury could hear evidence in mitigation, as there.is in Texas, in an effort to individualize the sentence.

Article 37.071, supra, which does not mandate the death penalty upon conviction of capital murder, sets up a procedure where the jury must affirmatively decide three special issues beyond a reasonable doubt before the death penalty is imposed. This procedure has already been determined by the United States Supreme Court to be constitutional. Jurek v. Texas, supra. Furthermore, the United States Supreme Court distinguished the Texas statute from the one in North Carolina which was determined to be unconstitutional wherein the Court wrote:

“North Carolina, unlike Florida, Georgia, and Texas, has thus responded to the Furman decision by making death the mandatory sentence for all persons convicted of first-degree murder.” Woodson v. North Carolina, 428 U.S. at 286-287, 49 L.Ed.2d 950.

Based on the above, we overrule appellant’s seventeenth ground of error.

In his next ground of error, appellant argues that Article 37.071, V.A.C.C.P., violates the Eighth and Fourteenth Amendments of the United States Constitution by failing to avoid the arbitrary and capricious infliction of the death penalty. In short, appellant contends that a jury could answer yes to the three special issues under Texas’ bifurcated trial system based solely on the evidence used to convict appellant at the guilt stage of the trial. We find no merit in appellant’s contention.

The Texas death penalty scheme has been upheld by the United States Supreme Court as being one tailored to an individualized sentencing process in a way that obviates standardless discretion on the part of the jury. Jurek v. Texas, supra. It has channeled the jury’s discretion by providing “clean and objective standards” [Gregg v. Georgia, 428 U.S. 153, at 198, 96 S.Ct. 2909, at 2936, 49 L.Ed.2d 859 (1976), quoting Coley v. State, 204 S.E.2d 612, 615 (231 Ga. 829 1974)] that provide “specific and detailed guidance.” [.Proffitt v. Florida, 428 U.S. 242 at 253, 96 S.Ct. 2960, at 2967, 49 L.Ed.2d 913 (1976)]. Further, it “make[s] rationally reviewable the process for imposing a sentence of death” [Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (opinion of Stewart, Powell and Stevens, JJ.) ].

Appellant’s reliance on Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), is misplaced. The statute there which was declared unconstitutional allowed “a sentence of death based upon no more than a finding that the offense was ‘outrageously or wantonly vile, horrible and inhuman.’ There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence” [Godfrey v. Georgia, 446 U.S. at 429,100 S.Ct. at 1765]. Texas’ system with the three special issues provides such a restraint and a mechanism for appellant review. See Jurek v. Texas, supra. Based on the foregoing, we overrule ground of error number eighteen.

In appellant’s last ground of error, he alleges that Article 37.071, V.A.C.C.P., is unconstitutional in violation of the Eighth and Fourteenth Amendments by being vague and indefinite. However, he cites no authority and presents no argument. Thus, nothing is preserved for appellate review. Woods v. State, 569 S.W.2d 901 (Tex.Cr.App.1978).

In the interest of justice, however, we address the issue. This Court in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), and Barefoot v. State, 596 S.W.2d 875 (Tex.Cr.App.1980), rejected the contention that Article 37.071(b) was too vague. Likewise, the United States Supreme Court rejected the argument in Jurek v. Texas, supra, that it was impossible under Special Issue Number Two [Article 37.071(b)(2), V.A.C.C.P.] to predict future behavior and that the question was so vague as to be meaningless. Thus, we overrule appellant’s last ground of error.

Finding no reversible error, the judgment is affirmed.

CLINTON and TEAGUE, JJ., dissent to disposition of the Witherspoon question concerning venireman Eaker.

      . Article 35.16(b)(3), V.A.C.C.P., provides:
      "(b) A challenge for cause may be made by the State for any of the following reasons: ... “(3) That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." (Emphasis supplied.)

      . Apparent reference is to the “due course of law." Article I, § 19, Tex.Const. The "due course of law" in the Texas Constitution to the due process of the law under the United States Constitution. Mellinger v. Houston, 68 Tex. 37, 3 S.W. 249 (Tex. 1887).

      . Article 35.22, V.A.C.C.P., provides:
      "When the jury has been selected, the following oath shall be administered them by the court or under its direction. “You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God.’” (Emphasis supplied.)

      . See now Evans v. State, 614 S.W.2d 414 (Tex. Cr.App.1980).

      . Further, until the conclusion of his voir dire examination Eaker was an "equivocating juror,” and it must be remembered that the trial judge heard the tone of his voice and observed his demeanor and was in the better position to pass on the challenge for cause presented. See Tez-eno v. State, 484 S.W.2d 374 (Tex.Cr.App. 1972); Villareal v. State, 576 S.W.2d 51 (Tex.Cr.App. 1978). See also Garza v. State, 622 S.W.2d 85, 92 (Tex.Cr.App.1981).

      . Article 35.21, V.A.C.C.P., provides that
      "The court is the judge, after the proper examination of the qualifications of a juror, and shall decide all challenges without delay and without argument thereupon.”

      . There is no showing that the State exhausted its peremptory challenges, and such juror would have served except for the court’s action. Weaver v. State, 476 S.W.2d 326 (Tex.Cr.App.1972); Pearce v. State, 513 S.W.2d 539 (Tex.Cr.App.1974).

      . Emphasis is that of the writer's unless otherwise noted.

      . The only case cited by appellant is Lege v. State, 501 S.W.2d 880 (Tex.Cr.App.1973), which involved an application of Article 37.07, V.A.C. C.P., to a non-capital case, not article 37.071, supra, which is applicable to the trial of capital murder cases.

      . In Earvin v. State, 582 S.W.2d 794, 799 (Tex.Cr.App.1979), this Court wrote:
      "Under Article 37.071(a), V.A.C.C.P., the court is authorized to admit any evidence which is relevant to the punishment, and the jury is authorized to consider this relevant evidence along with that adduced at the guilt-innocence phase of the trial.

      . Section 12.31(a), V.A.P.C., states:
      "An individual adjudged guilty of a capital felony shall be punished by confinement in the Texas Department of Corrections for life or by death.”


author: MeCORMICK, Judge.

text:
    David E. GAULDIN, Appellant, v. The STATE of Texas, Appellee.
    No. 518-82.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 26, 1984.

      Norman J. Hoppenstein, (court-appointed) Waco, Paul Sorenson, (court-appointed) Fort Worth, for appellant.
    Tim Curry, Dist. Atty., C. Chris Mar-shall, Greg Pipes, Michael Jergins, William Kane and J.M. McEntire, Asst. Dist. Attys., Fort Worth, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MeCORMICK, Judge.

This case is before us on appellant’s petition for discretionary review. A jury found appellant guilty of robbery and after answering true to the enhancement paragraphs assessed punishment at life. In a published opinion, the Fort Worth Court of Appeals affirmed, overruling appellant’s contentions that statements made by him during custodial interrogation without Miranda warnings were erroneously admitted at trial and that the search of his pickup truck was illegal. Gauldin v. State, 632 S.W.2d 652 (Tex.App. — Ft. Worth, 1982). For the reasons stated herein, we affirm the Court of Appeals.

The Court of Appeals’ opinion adequately states the facts. On Monday night, June 11, 1979, a U-Tote-M store clerk in Fort Worth was robbed. The clerk, Sarah Banks, was standing at the register when a man came into the store to buy a package of cigarettes. When Banks handed the man his change, he grabbed her hand and told her to leave the register open. Instead, Banks locked the register, whereupon the man began hitting her with his fists. Banks fell to the floor behind the register and the man came around the counter and continued to strike her. Finally, Banks opened the register and the assailant took all the money — approximately $80.00 to $100.00. Insisting that there was more money, the assailant continued to strike Banks.

At this juncture, a customer, Bill Neal, drove up to the store. Alarmed, the robber released Banks and ran out of the store, crossed the street and got into a red pickup truck. Neal observed these events and subsequently reported them to the police from a telephone at the convenience store. Neal gave the police a description of the robber and the pickup as well as the license number of the truck.

Within an hour of the robbery, police spotted the pickup in the parking lot of Snoopi’s, a nightclub two blocks from the U-Tote-M. Officers Schoelman and Malone went inside the club and observed the appellant, who matched the description given by Neal, sitting alone at the bar. The officers approached him and asked for identification. Appellant replied that he had none. When asked what vehicle he had driven to the club, appellant responded that he had arrived in a brown Ford LTD. The officers requested that appellant come outside so they could talk to him. Once outside, the officers renewed their inquiry concerning appellant’s vehicle. Appellant then indicated that he had driven the red Ford pickup. The officers placed the suspect under arrest and Officers Estep and Med-dor searched the vehicle. Twenty, one dollar bills were found in the glove box and a single dollar bill was located on the seat of the pickup. Photographs of the interior and exterior of the truck were taken before the truck was towed to the police pound.

A lineup was conducted the next day at the police station. Appellant was one of the four men in the lineup and was readily identified as the robber by Banks and Neal.

In ground of error number one, appellant contends that the testimony of one of the investigating officers, concerning the appellant’s statement in which appellant identified the red truck as the vehicle he drove to the club, was inadmissible. According to appellant, the statement was obtained as a result of custodial interrogation in violation of Miranda. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defense counsel filed a motion to suppress all statements made by the appellant at the time of appellant’s apprehension. However, counsel did not request a hearing on the motion or obtain a ruling. At trial, counsel objected to the testimony on the grounds of hearsay and improper predicate. Both objections were overruled.

The error presented on appeal must be the same as the objection raised at trial. Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981); Nelson v. State, 607 S.W.2d 554 (Tex.Cr.App.1980); Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App.1979); Mcllveen v. State, 559 S.W.2d 815 (Tex.Cr.App.1977). The requirement of a trial objection applies with equal force to alleged Miranda violations. Ex parte Bag ley, 509 S.W.2d 332 (Tex.Cr.App.1974). Since appellant raised the Miranda issue for the first time on appeal, nothing is preserved for review.

The Court of Appeals improvidently considered appellant’s contention, finding no custodial interrogation as envisioned by Miranda. Further, the lower court justified admission pursuant to Article 38.22, Section 3(c), V.A.C.C.P., as a statement containing an assertion of fact, found to be true and conducive to establish the guilt of the accused. Although we fail to reach the custodial interrogation issue, it should be noted that in the absence of custodial interrogation an oral statement is admissible and Article 38.22, Section 3, supra, becomes irrelevant to the determination. See Smith v. State, 507 S.W.2d 779 (Tex.Cr.App.1974).

Appellant’s first ground of error is overruled.

Next, appellant argues that the money seized from the truck at the time of his arrest was an inadmissible fruit of an illegal search and seizure. Due to the state of the record, we must agree. The record does not reflect a valid search either incident to arrest or based upon probable cause plus exigent circumstances. In addition, the warrantless search of appellant’s vehicle cannot be justified as an inventory search.

A lawful custodial arrest authorizes a contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). However, the scope of the area searched must be limited to the area within the immediate control of the arrestee. Chimel v. California, supra. In Belton v. New York, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the United States Supreme Court applied the Chi-mel rationale to the interior of an automobile holding “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Belton v. New York, supra, at 460. The Fort Worth Court of Appeals relied on Belton to validate the search, but in light of the facts in the instant case, their reliance was misplaced.

Appellant was approached by the police inside the bar. Appellant was neither an “occupant” of the truck nor its “recent occupant” within the context of Belton. Further, the record does not re-fleet the appellant’s proximity to the vehicle at the time of his arrest. Therefore, the State did not sustain its burden of proving “that articles inside the relatively narrow compass of the passenger compartment of [the] automobile [were] in fact ... within ‘the area into which [the] arrestee might reach in order to grab a weapon or evidentiary ite[m].’ ” Belton v. New York, supra, at 460, citing Chimel v. California, supra.

Citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Court of Appeals also found that probable cause existed for the search of appellant’s truck based upon Neal’s description of the getaway vehicle. However, the Supreme Court recognized in Chambers that “[o]nly in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search.” Chambers, supra, at 51. Consequently, the warrantless search of an automobile based upon probable cause to search will be upheld as long as exigent circumstances make obtaining a warrant impracticable.

Because the search of the truck took place after appellant was taken from the bar and while the truck was parked in the bar’s parking lot, Chambers is not dis-positive. Obviously, the Chambers exigency of an automobile stop upon an open highway is absent in the case at bar. Moreover, no other exigent circumstances existed at the time of the search which would have made obtaining a warrant impracticable. There were no other actors or accomplices to the robbery. Appellant was alone at the time of his arrest. No one arrived who was interested in moving the vehicle or removing items from it after the arrest of appellant and at least six officers were present at the scene.

In addition, the Court of Appeals justified the search as a constitutionally permissible inventory of the truck’s contents. Generally, police who are engaged in a caretaking search may inventory the contents of a lawfully impounded vehicle. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Further, the burden of proof is upon the State to show a lawful inventory search. Bena-vides v. State, 600 S.W.2d 809 (Tex.Cr.App. 1980); Ward v. State, 659 S.W.2d 643 (Tex. Cr.App.1983). The police had the authority to impound appellant’s vehicle; appellant was under arrest, the truck was parked on a bar parking lot and it matched the description of the vehicle used in the robbery. Cf. Benavides v. State, supra; Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980). However, the record is devoid of any evidence that the police actually engaged in the caretaking function.

Officer Estep testified that he and Officer Meddor searched the pickup. Officer Meddor did not testify. Estep did not complete an inventory of the vehicle and was unaware of whether one was completed by Meddor or by any other officer. In the absence of testimony regarding actual adherence to standard police inventory procedure, the State has not sustained its burden of proof.

Having concluded that the evidence was unconstitutionally obtained, we must determine whether its introduction was sufficiently prejudicial to appellant so as to require reversal. The error is harmless unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In addition, consideration of the probable impact of the evidence on the minds of an average jury is essential to such an inquiry. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Appellant matched the description of the robber given by both eyewitnesses. He was arrested within an hour of the offense two blocks from the convenience store. Appellant admitted ownership of the truck whose description and license plate number corresponded to that given by Neal to the police. Appellant was positively identified by both eyewitnesses in a lineup and at trial. Further, the jury was aware of the discrepancy in the amount of money stolen and the amount recovered from appellant. We conclude that the State’s case would not have been significantly less persuasive to the average jury had the complained of evidence been excluded.

The judgment of the Court of Appeals is affirmed.

ONION, P.J., concurs.

      . Appellant objected at trial to the admission of the pictures of the interior of the truck on similar grounds. However, appellant’s brief refers to "the evidence seized from the pickup" and "the evidence obtained from the warrant-less search of appellant’s vehicle.” Since appellant's ground of error is unclear, we will only consider the admissibility of the evidence seized from the vehicle, namely the money.

      . It is unclear whether the truck was locked prior to appellant’s arrest. There is no testimony concerning the whereabouts of the truck keys. Estep, the only officer to testify regarding the search, indicated that the truck was unlocked when he opened the left door to process the vehicle and that the keys were not in the vehicle. However, Estep was inside another bar looking for the suspect prior to the arrest. Officer Meddor participated in the search, but did not testify.

      . Initially, Estep stated that Meddor completed an inventory. Later, Estep admitted he did not know if an inventory of the vehicle had been performed.


author: MILLER, Judge.

text:
    Thomas HIRSCHI, Travis Morales & Mara Youngdahl, Appellants, v. The STATE of Texas, Appellee.
    Nos. 68501, 68502 and 68503.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 26, 1984.
    Rehearing Denied Jan. 30, 1985 in No. 68,501.
    Rehearing Denied Feb. 6, 1985 in Nos. 68,502, 68,503.

      William B. Allison, Houston, for appellants.
    John B. Holmes, Jr., Dist. Atty., James C. Brough and Andy Tobias, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

MILLER, Judge.

Appeals are taken from convictions for riot pursuant to the Texas Anti-Riot Law, V.T.C.A. Penal Code, § 42.02. Appellants Morales and Youngdahl were convicted of felony riot pursuant to § 42.02(a)(1) and (f). Appellant Hirsehi was convicted of misdemeanor riot pursuant to § 42.02(a)(1). The jury assessed punishment at five years and a $5,000 fine, probated, for Morales, five years and a $4,000 fine, probated, for Youngdahl, and a $1,000 fine for Hirsehi.

These appellants, known collectively as “The Moody Park Three,” were each charged with nine counts of felony riot stemming from a large scale riot which took place in Houston’s Moody Park on May 7, 1978. During that riot, various felony offenses were committed by persons other than the appellants, including the burning of police cars and a newsman’s vehicle, various assaults, and the burning of buildings near the park. In three separate nine-count indictments, each appellant was charged with two counts of felony riot by criminal mischief, three counts of felony riot by aggravated assault, and four counts of felony riot by arson. At trial, the prosecution abandoned all counts except the four which alleged arson as the underlying felony pursuant to § 42.02(f).

A person commits an offense if he knowingly participates in a riot. § 42.-02(b). Riot is defined as the assemblage of seven or more persons resulting in conduct which creates an immediate danger of damage to property or injury to persons. § 42.02(a)(1). An offense under § 42.02(a) is a Class B misdemeanor. § 42.02(e). Once a person has been found to be in violation of one of the substantive provisions of subsection (a), he becomes susceptible, under the terms of subsection (f), to the imposition of responsibility for the crimes of a greater degree which are committed by other participants in the riot. Subsection (f) provides:

“(f) An offense under this section is an offense of the same classification as any offense of a higher grade committed by anyone engaged in the riot if the offense was:
“(1) in the furtherance of the purpose of the assembly; or
“(2) an offense which should have been anticipated as a result of the assembly.”

In Faulk v. State, 608 S.W.2d 625 (Tex.Cr.App.1980) (Opinion on Rehearing), this Court held that “knowing participation” in an assemblage under the statute includes the requirement that the defendant know that the conduct of the assemblage is resulting in unlawful activity. Thus, the resulting conduct of the assemblage and participation by the defendant in that assemblage knowing of its conduct makes one subject to the criminal sanctions of § 42.02.

Appellants contend that the trial court erred in failing to charge the jury that they must find appellants participated in the assembly knowing that the assembly was resulting in conduct creating an immediate danger of damage to property or injury to persons. We agree.

The material portion of the court’s charge provides:

“Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Travis Morales, acting alone or as a party as that term has been defined herein, did in Harris County, Texas, on or about the 7th day of May, 1978, knowingly participate in an assembly with more than six (6) persons resulting in conduct which created an immediate danger of damage to property, or injury to persons, to-wit: That a person unknown to the Grand Jury, that is, a person engaged in the riot, if any, committed the offense of arson, by starting a fire with the intent to damage or destroy a building owned by Gaston Ponce, without the effective consent of Gaston Ponce, and you further find that the action, if any, of the person unknown to the Grand Jury was an offense which should have been anticipated as a result of the assembly, as alleged in Paragraph Four (4) of the indictment ... then you will find the defendant, Travis Morales, guilty of felony riot as alleged in the indictment.”

The charge clearly required the jury to find knowing participation in the assembly by the appellants. The charge failed, however, to require the jury to find that the appellants participated in the assembly knowing that it was resulting in conduct creating an immediate danger of damage to property or injury to persons. As construed by this Court in Faulk, supra, the statute requires that the actor participate with those assembled knowing that the assemblage is resulting in unlawful conduct. The charge of the trial court in this case failed to require the jury to find this essential element of the offense of riot.

The State contends that the charge in this case is “substantially the same” as the charge in Faulk, supra, which was upheld against the same claim. We find, however, that the instant charge is substantially different from that submitted to the jury in Faulk. The court’s charge in Faulk read:

“Now therefore, if you believe from the evidence beyond a reasonable doubt that in Jefferson County, Texas on or about January 17, 1975, the defendant, ROBERT WAYNE FAULK, did then and there knowingly participate in an assembly of more than seven persons, the names and identities of those not named in this indictment being unknown to the Grand Jurors, and that while so assembled and acting together, created an immediate danger of damage to property or injury to persons and did then and there commit the substantive offense of Arson by burning the building of A.A. CROSS, there situated, such act of burning being in furtherance of the purpose of the assembly or that the offense of Arson should have been anticipated by the defendant, ROBERT WAYNE FAULK, as a result of the assembly, you should find the defendant, ROBERT WAYNE FAULK, Guilty of the offense of Riot by Arson as alleged in count 1 of this indictment.”

We held in Faulk that:

“The charge clearly required the jury to find knowing participation in the assemblage by appellant. The charge further provided that the jury must find that appellant acted with those so assembled in creating an immediate danger of damage to property or injury to persons. The jury having been required to find that appellant participated in the creation of the danger, was sufficient to likewise require the jury to find that appellant knew of the resulting conduct of the assemblage.”

In the case at bar, the court’s charge did not require the jury to find that appellants “acted with those so assembled in creating an immediate danger” nor did it require the jury to find that appellants “participated in the creation of the danger.” The instant charge merely required a finding of knowing participation in an assemblage “resulting in conduct” which created an immediate danger of damage to property or injury to persons. We find that, unlike Faulk, the charge in this case failed to require the jury to find that appellants knew of the resulting conduct of the assemblage.

The appellants lodged written objection to the trial court’s definition of riot “because the instruction fail[ed] to state that the members of the assemblage must know that their conduct create[d] an immediate danger of damage to property or injury to persons.” (emphasis original) The objection was overruled sub silentio. Such action constitutes error requiring reversal.

The judgment of the trial court is reversed and the cause is remanded to that court.

      . Riot is also defined as the assemblage of seven or more persons resulting in conduct which substantially obstructs law enforcement or other governmental functions or services, § 42.-02(a)(2); or, by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right, § 42.02(a)(3).

      . All emphasis herein is that of the author of this opinion unless otherwise indicated.

      . The charge contains parallel language on each of the four counts of riot by arson, repeated several times for each of the three appellants.

      . While we held that the wording in the charge in Faulk was "sufficient” to alert the jury to the fact that the defendant, to be guilty, must have known of the resulting conduct of the assemblage, the better practice is to affirmatively state in the charge that the defendant knowingly participated in the assembly knowing that it was resulting in conduct creating an immediate danger of damage to property or injury to persons.

      .We pause to note that the trial of this case occurred prior to our 1980 Faulk decision construing the riot statute, hence the trial judge did not have the benefit of that tool in preparing the court’s charge.