author: ONION, Presiding Judge.

text:
    Robert Blake McCALLUM, Appellant, v. The STATE of Texas, Appellee.
    No. 066-84.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 9, 1985.

      Ronald L. Goranson, Dallas, for appellant.
    Henry Wade, Dist. Atty. and R.K. Weaver, Ted Steinke and Mike Miller, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of the offense of bribery. V.T.C.A., Penal Code, § 36.-02(a)(2), as amended in 1975. The jury assessed punishment at five years’ imprisonment, probated, and a fine of $10,000.00. The Dallas Court of Appeals affirmed the conviction in an unpublished panel opinion. McCallum v. State (No. 05-82-00816-CR 1983).

Appellant petitioned this Court for review asserting, inter alia, the Court of Appeals erred in finding the evidence sufficient to sustain the conviction. We granted appellant’s petition to determine the correctness of the Court of Appeals’ decision. We reverse.

The appellant was charged and convicted under the 1975 version of V.T.C.A., Penal Code, § 36.02(a)(2). In order to better understand the application of the law to the facts in the instant case a brief review of the statute as enacted in 1974 and as rewritten in 1975 is deemed advisable.

V.T.C.A., Penal Code, § 36.02 (Bribery), was enacted originally as part of the 1974 Penal Code. It provided in part:

“(a) A person commits an offense if he offers, confers, or agrees to confer any benefit on a public servant, party official, or voter:
“(1) with intent to influence the public servant or party official in a specific exercise of his official powers or a specific performance of his official duties; or
“(2) with intent to influence the voter not to vote or to vote in a particular manner.
“(b) A public servant or party official commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will be influenced in a specific exercise of his official powers or a specific performance of his official duties.” (Emphasis supplied.)

The Explanatory Comment in Branch’s Ann.P.C., 3rd Ed., Vol. Ill, § 36.02, to the said 1974 statute states:

“This section covers both bribing a public servant, party official, or voter and soliciting, accepting or agreeing to accept a bribe by a public servant, party, or voter. The broad definition of public servant in Section 1.07(a)(30), should be noted.
This section replaces over 25 special statutes contained in prior law, in an attempt to cover the activity in broad general provisions. Bribery is denounced as a crime in Tex. Const, art. 16, Sec. 41, with conviction carrying with it the removal from office of any judicial, legislative or executive officer. Not only bribery subvert the function of government to the advantage of the few who can or will pay for special advantages, but more important is the lack of confidence in government which such practices cause.”

The elements of bribing another (public or party official) under the 1974 version of § 36.02(a)(1) were:

(1) a person
(2) offers, confers, or agrees to confer
(3) any benefit
(4) on a public servant, party official, or voter
(5) with intent to influence the public official or party official in a specific exercise or performance of official powers or duties. (Emphasis supplied.)

The offense of bribery was amended and redefined in 1975. (Acts 1975, 64th Leg., p. 912, ch. 342, eff. Sept. 1975 — S.B. 127). It was under this amended version that appellant was charged and convicted.

Said § 36.02, as amended in 1975, read:

“(a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:
“(1) any pecuniary benefit as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter;
“(2) any benefit as consideration for the recipient’s decision, vote, recommendation, or other exercise of official discretion in a judicial or administrative proceeding; or
“(3) any benefit as consideration for a violation of a duty imposed by law on a public servant or party official.
It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office or he lacked jurisdiction or for any other reason.
“(c) An offense under this section is a felony of the second degree.” (Amended by § 11, S.B. 127, Ch. 342, p. 912; Acts of 64th Leg., 1975, eff. Sept. 1, 1975.) (Emphasis supplied.)

It is noted that the statute was completely rewritten. The 1975 version added the culpable mental states “intentionally or knowingly” to the definition of the offense or offenses in the statute, and elevated the offense to a second-degree felony whereas most offenses under the 1974 version of the statute were felonies of the third degree.

In addition, it is observed that the Explanatory Comment to said 1975 amendment in Branch’s Ann.P.C., 3rd ed., Vol. Ill, § 36.02, states in part:

“This section was completely rewritten based upon Model P.C. Sec. 240.1. The term ‘with intent to influence’ was completely omitted, and the term ‘as consideration for’ was used to emphasize the bargaining aspect of bribery. This concept includes both express and implied or tacit agreements. Any benefit will suffice to convict for bribery, if it is consideration for the recipient’s exercise of official discretion in a judicial or administrative proceeding or it is consideration for a violation of a duty imposed by law on the public official.” (See duties imposed by the ethic law, R.C.S. Article 6252-9b.) (Emphasis supplied.)

The American Law Institute’s Model Penal Code, Reprint — Proposed Official Draft, § 240.1 (May 4, 1962), states in part on p. 197 under “Status of Section”:

“Section 240.1 departs from the earlier draft also in requiring that the benefit be ‘in consideration’ of the official action or agreement therefor. This is the more conventional formula in bribery legislation, and prevents application of the bribery sanction to situations where gifts are given in mere hope of influence, without any agreement by the do-nee. We deal with gifts to officials elsewhere. See Section 240.6.” (Emphasis supplied.)

The legislative bill analysis of Senate Bill 127 of the 64th Leg., 1975, in dealing with §11 of the said bill which involved §§ 36.01 and 36.02 of the Penal Code stated in part:

“This section is based on Sec. 1361 of the Proposed Federal Criminal Code (1970 Study Draft) and Sec. 240.1 of the Model Penal Code (1962 Proposed Official Draft), in that both use the term ‘as consideration for’ in lieu of ‘intent to influence to emphasize the bargain aspect of the bribery ... The intent of this change is to more clearly define the offense of bribery and to exclude conduct prohibited by the other section (sic) of Chapter 36 of the penal code....”

Under § 36.02(a)(2) (Bribery — Judicial or Administrative Proceeding), as enacted in 1975, the elements of the offense under Subsections (a)(2) are:

(1) a person
(2) intentionally or knowingly
(3) offers, confers, agrees to confer, solicits, accepts, or agrees to accept
(4) a benefit
(5) as consideration for
(6) the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion.

See Branch’s Ann.P.C., 3rd Ed., Vol. Ill, § 36.02 (Check List of Elements Necessary to Establish Offense).

As observed, there are several different modes of committing the offense under Subsection (a)(2).

In view of the obvious changes made in the statute, we noted rules of statutory construction.

V.T.C.A., Penal Code, § 1.05 (Construction of Code), provides:

“(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.
“(b) Unless a different construction is required by the context, Sections 2.01, 2.02, 2.04, 2.05, and 3.01 through 3.12 of the Code Construction Act (Article 5429b-2 — Vernon’s Texas Civil Statutes) apply to the construction of this code.”

Article 5429b-2, § 2.01, supra, reads in part:

“Sec. 2.01. Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”

In Ely v. State, 582 S.W.2d 416 (Tex.Cr.App.1979), it was held that in absence of special definitions, statutory language can be measured by common understanding and practices or construed in sense generally understood.

The term “consideration” is not defined for the purpose of V.T.C.A., Penal Code, § 36.02, or for the Penal Code, or the Code of Criminal Procedure. Thus we must look elsewhere for the meaning of the term as used in the bribery statute.

Given the nature of the bribery offense, we do not conclude that “consideration” was used in the exact sense used pertaining to a valid and legally enforceable contract, but nevertheless it can be interpreted as an inducement to an illegal contract, that of bribery.

Black’s Law Dictionary, Fifth Edition, defines “consideration” as the “inducement to a contract. The cause, motive, price, or impelling influence which induces a contracting party to enter into a contract. The reason or material cause of a contract. Same right, interest, profit or benefit accruing to one party, or some forebearance, detriment, loss, or responsibility, given, suffered or undertaken by the other.”

Webster’s Third New International Dictionary (Unabridged Ed. 1961), defines “consideration” in part as “8. something given as recompense: as a payment, reward. ...”

The Prentice-Hall Encyclopedic Dictionary of Business Law (1961) defines “consideration” as the “promise or conduct that each party to a contract gives in exchange for the promise or conduct of the other.”

In 14 Tex.Jur. 3rd, Contracts, § 102, p. 196, wherein consideration is discussed, it is written: “... it must be offered by one party and accepted by the other as an essential element of the agreement. Nothing may be consideration that the parties do not regard as such at the time of entering into the agreement_”

Given the legislative history and wording of the statute, as enacted in 1975, we construe the offense, particularly where it alleges the accused intentionally or knowingly conferred “a benefit as consideration for” (§ 36.02(a)(2)) as requiring a bilateral arrangement — in effect an illegal contract to exchange a benefit as consideration for the performance of an official function.

The indictment in the instant case in pertinent part alleged the appellant McCallum did

“knowingly and intentionally confer upon Suzanne Wills a benefit, to wit: Champagne as consideration for Suzanne Wills’ decision and vote as a juror in a judicial proceeding, to wit: a jury trial then in progress in the 95th District Court of Dallas County, Texas, being Cause Number 80-6294-D, styled Joanne Demeson v. National Bonding Agency and Blake McCallum....”

Thus under the mode of the offense as alleged in the indictment, the State was required to prove, inter alia, beyond a reasonable doubt that (1) appellant conferred upon Wills a benefit, to-wit champagne and that (2) the champagne was consideration for the decision and vote of Wills as a juror in the described cause pending in the said district court.

With this background we now turn to the facts of the case to determine the sufficiency of the evidence to sustain the conviction.

The record reflects that on Friday, February 20, 1981, a civil damage suit, as described in the indictment, in which appellant and his company were defendants, had been in progress for four weeks. On the date in question the jury had begun deliberations and had deliberated for about two hours when District Judge Joe Fish permitted the jury to separate for the weekend. Judge Fish appropriately instructed the jurors not to discuss the ease or mingle with anyone involved in the trial or to accept any favors from them, etc. Suzanne Wills was one of the jurors.

Wills, apparently a very attractive young lady, testified that on the Friday evening in question about 7 p.m. she went alone to TGI (Thank God It’s) Friday, a bar and restaurant in Dallas where she planned to meet two female friends for dinner. She acknowledged Friday’s was a popular place with young singles. Upon arrival she proceeded to the crowded bar area to obtain a drink. There she saw the appellant and his attorney. The appellant approached her and asked her if he could get her a drink. She reminded him they were not to have any contact. He replied, “It won’t hurt” or something to that effect. Later he handed her a glass of wine. She didn’t know how he obtained it or who paid for it. Her friends, Karen Thoman and Sue Ann Hosier, arrived and they went to a table for cocktails and dinner. Later the appellant joined them at the table. She did not recall that he had a friend with him. Wills told appellant she was uncomfortable about the situation and he responded it didn’t matter if they didn’t discuss the trial. No further mention was made of the trial. Wills related that for about five minutes all of the table engaged in small talk. Someone mentioned Elan’s, a Dallas nightclub, and the possibility of going there later. Appellant then left the table.

After dinner Wills drove alone to Elan’s about 8:30 or 9 p.m. She recalled standing in line with her girlfriends but did not recall appellant in the line with them though she did not have a membership at Elan’s. After obtaining admission, she said they stood at a railing where the waitress brought them a bottle of Dom Perig-non champagne, which was expensive, about $125.00 a bottle. During the evening three or four bottles of champagne were brought to them. She did not know who ordered the champagne or who paid for it. She did not pay for it and made no inquiries of the waitress. She saw the appellant at the club and remembered he said “Hi,” but he was not with her group. Her friends left about 11:30 or 12 p.m., and the appellant left the club sometime thereafter, but she did not leave until 12:30 a.m. She recalled a nice looking dark-haired young man with whom she danced several times during the evening. On cross-examination she vaguely recalled being approached late in the evening by an angry ex-boyfriend who engaged her in argument until the dark-haired young man intervened. She later learned the dark-haired man was James Pool. Wills related that she talked with the appellant about seven minutes at Friday’s and not thereafter and there was no discussion of the trial or of her vote as a juror. She was not influenced.

Karen Thoman testified she and Sue Ann Hoster joined Wills at Friday’s on February 20, 1981, for cocktails and dinner. During the dinner Thoman stated appellant and his dark-haired male friend came to their table. Wills protested, but appellant said it would be all right if the case was not discussed. She later learned Wills was a juror. Thoman related they all engaged in small talk. Someone mentioned champagne they served at Elan’s, and later after dinner she and Hoster drove to Elan’s. They stood in line with Wills, appellant and his friend. After admission all five stood at a railing in the crowded club where they were served several bottles of expensive champagne. She did not know who ordered the champagne or who paid for it. She did not. Thoman explained that while appellant visited with other people in the club he was with their group most of the evening. The dark-haired young man was paying particular attention to Wills and they danced several times during the evening. At no time did she hear any conversation about the civil trial. She left with Hoster. She admitted she was intoxicated at the time.

Sue Ann Hoster testified that during dinner at Friday’s with Wills and Thoman appellant and his tall, good-looking dark-haired friend came to their table. She knew appellant was a defendant in the case in which Wills was a juror because Wills had told her. Appellant told them not to worry so long as there was no discussion about the case. Hoster recalled they engaged in small talk and the trial was not mentioned. She did recall that appellant wanted to take them to Elan’s where he had a membership, and told them about the $125.00 a bottle champagne served there. He offered to buy as much as they wanted. She and Thoman drove to Elan’s together, and stood in line with Wills and appellant. She did not recall the appellant’s dark-haired friend being in line or at Elan’s at all. After admission, Hoster recalled they went to a standing bar where appellant ordered the first bottle of champagne which they drank. She had none of the second bottle. She recalled that appellant visited with other individuals in the club, but did pay attention to Wills and engaged her in conversation which she did not hear. She left after an hour and was not there if a third bottle of champagne was served.

The State offered evidence that $546.15, including a $35.00 tip, was shown as charged on appellant’s American Express card at Elan’s. The club’s tab showed there were four bottles of Dom Perignon champagne at $125.00 per bottle and two bourbon and one Scotch drinks. On the following Monday it appears Wills reported the incident to Judge Fish, who made inquiries and then referred the matter to the District Attorney’s office. Also on Monday the jury returned an unanimous verdict against the appellant and his bonding company in the amount of $165,500.00.

Appellant called several friends who testified it was customary on social and other occasions for appellant to use his credit cards to pay bills or tabs for friends, and have his friends reimburse him later. James Pool, 29, testified he was a friend of the appellant and formerly dated a secretary at his bonding agency. On the date in question he happened to go to Friday’s, saw the appellant and visited with him. He observed appellant speak with Wills, whom he considered attractive. Pool asked appellant to introduce him and appellant explained she was a juror in his case, and not to speak of the case or about him. Appellant took him to a table and introduced him to Wills and left. After a conversation with Wills and her friends, he returned to the bar to visit with the appellant. He asked appellant to go to Elan’s with him, and suggested they ask the three women to go there also. He felt the women might be interested in the Dom Perignon champagne and offered to pay for it if appellant used his credit card as he had none. Appellant agreed. Later they returned to the table and invited the women to Elan’s, telling them about the champagne. The women indicated they might come. Pool drove the appellant to Elan’s and they had some drinks. The women arrived and they joined them, and Pool and appellant ordered champagne. Appellant’s credit card was used. Pool was paying attention to Wills and they danced several times. Appellant visited from time to time in other parts of the club. After the second bottle was finished, the other two women left and Wills remained. A third bottle was ordered. Pool recalled others had joined their group and were drinking champagne. Subsequently appellant indicated he desired to leave, ordered a fourth bottle, cleared his tab with the club, and left. Pool indicated that later Wills became involved with an ex-boyfriend who tried to force her from the club, and he intervened. He then took Wills home and spent the night at her apartment. He drove her to Elan’s the next morning to pick up her car in the parking lot. Pool related he later reimbursed appellant for the cost of the champagne.

Appellant testified he and his attorney went to Friday’s after court was adjourned on the date in question. He saw Wills come into the bar and try to get a drink. The crowd was deep at the bar. Trying to get the bartender’s attention, appellant told Wills he would “wave down” a bartender for her, and asked what she was drinking. Upon her response he yelled to the bartender to give her a glass of wine. He didn’t know who paid for it, he didn’t recall whether it was on his tab. A little later Pool, who was at the bar, asked him for an introduction to Wills. Appellant explained Wills was a juror, and asked Pool not to mention the case if he made the introductions. He took Pool to the table and introduced him to Wills. She introduced her friends, and appellant left and returned to the bar. Pool stayed at the table but returned to the bar in 10 minutes or so. Pool suggested they go to Elan’s and see if the “girls” wouldn’t go with them. Pool said he would pay for the champagne. They returned to the table and invited the “girls” to go with them to Elan’s, telling them it was an exclusive club which served Dom Perignon champagne. Appellant stated he was interested in getting to know Karen Thoman better. The women indicated they might come to Elan’s. He and Pool drove to Elan’s in Pool’s car. They had a drink, he gave the waitress his credit card and set up his tab. When the three women arrived, either he or Pool ordered the first bottle of champagne. Five glasses were brought and they all had champagne. Pool directed his attention to Wills. Appellant directed his attention to Karen Thoman, but was unsuccessful, and he began to mingle among the crowd. A second bottle was ordered. After the second bottle was consumed, Thoman and Hosier left. About 30 minutes later he ordered another bottle, signed his credit card voucher, called a runner from his office to come and take him to his car at Friday’s. He stated that subsequently Pool paid him for the champagne in accordance with their agreement.

Appellant denied ever discussing the case with Wills except to say the case would not be discussed. He never heard Pool mention the case to Wills, nor heard it mentioned by anyone that evening. He denied the allegations of the indictment, stated he did not intend to influence Wills in any way.

While the evidence shows the appellant ordered the champagne and it was charged to his credit card, there is no showing he conferred the champagne on Wills in exchange or in consideration of her vote as a juror. There was no evidence of a bilateral agreement.

The Court of Appeals in its opinion stated:

“While this testimony is not entirely consistent, we conclude that the trier of the fact at the guilt/innocence stage had more than sufficient evidence before it to determine beyond a reasonable doubt that appellant was guilty as charged, despite assertions by Wills that she was unaware of any explicit bribery offers. Mahome v. State, 542 S.W.2d 177 (Tex.Cr.App.1976). The jury was entitled to disbelieve Wills and to accept instead the testimony of the other witnesses on the issue of guilt. Johnson v. State, 571 S.W.2d 170 (Tex.Crim.App.1978).”

First, we observe that Mahome was decided under the 1974 version of § 36.02 before it was rewritten in 1975. Mahome can be clearly distinguished on the law and on its facts. Second, the Court of Appeals acknowledged the testimony of the complaining witness failed to make a case, but asserted the jury could have believed the other witnesses. Their testimony is not set out in the opinion of the Court of Appeals. As we have seen, none of that testimony establishes the essential elements of the mode of the offense charged against the appellant under § 36.02(a)(2). None of them heard the appellant and Wills even discuss the civil trial, much less any agreement for the champagne being the consideration for Wills’ vote as a juror. There was no showing of any bilateral agreement.

We cannot conclude, viewing the evidence in the light most favorable to the prosecution, that a rational trier of the facts could have found the essential elements of the alleged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Jackson v. State, 672 S.W.2d 801 (Tex.Cr.App.1984); Houston v. State, 663 S.W.2d 455 (Tex.Cr.App.1984).

The judgments of the Court of Appeals and trial court are reversed and a judgment of acquittal ordered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

      . V.T.C.A., Penal Code, § 36.02, was again amended in 1983 (Acts 1983, 68th Leg., p. 3237, ch. 558, § 2, eff. Sept. 1, 1983 — S.B. 651.) This version was not in effect at the time of the instant offense or appellant’s trial. The 1983 amendment deleted the word “pecuniary” in Subsection (a)(1) preceding "benefit as consideration”; inserted a new subsection (c); and relet-tered former subsection (c) as (d).

      . Mahome was convicted of bribery of a public official under the 1974 version of § 36.02. The indictment alleged the defendant with offering a benefit ($44.00) with intent to influence a police officer to "keep from being arrested.” After being stopped for traffic offenses, the defendant handed the officer $44.00 and after the officer asked repeatedly what the money was for, the defendant said, “You know, man, I'm D.W.I.”

      . In White v. State, 156 Tex.Cr.R. 635, 245 S.W.2d 704 (1952), this Court wrote:
      "The prosecution arose under Art. 173, P.C., which makes it unlawful to ‘bribe, or offer to bribe,’ a peace officer to do or not to do certain acts in violation of his duty as an officer.
      “The offense denounced under this statute is composed of two elements: One is the bribe, while the other is the offer to bribe.
      "The instant indictment charges bribery and not an offer to bribe. Hence, the sufficiency of the evidence to support this conviction must be weighed in determining whether a bribe is shown.
      "To constitute the offense of bribery of an officer, there must be shown not only the offer on the part of the briber but acceptance thereof by the one who is bribed. Selvidge v. State, 126 Tex.Cr.R. 489, 72 S.W.2d 1079.
      "Hence, the deputy sheriff who the indictment charged was bribed testified directly that he did not accept the bribe but told the appellant he would have to take the offer up with his superior, the sheriff. Indeed, at one place in the testimony of the witness, he strongly suggests that the alleged bribe money was given to him for a purpose entirely different from that alleged in the indictment. In any event, the testimony shows nothing more than an offer to bribe, as distinguished from the completed offense of bribery.”


source: Caselaw Access Project

author: MILLER, Judge. TEAGUE, Judge, ONION, Presiding Judge,

license: Public Domain

text:
    David Leon COTTON, Appellant, v. The STATE of Texas, Appellee.
    No. 035-84.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 6, 1985.
    Larry D. Dowell, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Patricia Saum and Kent Ellis, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty. and Cathleen R. Riedel, Asst. State's Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction of the misdemeanor offense of selling beer to a person showing evidence of intoxication in violation of V.T.C.A., Alcoholic Beverage Code, §§ 61.71(a)(6) and 61.77. Appellant was convicted in a bench trial and, pursuant to the general penalty provision of V.T. C.A., Alcoholic Beverage Code, § 1.05, punishment was assessed by the court at a fine of $200.00.

On November 17, 1983, the Court of Appeals affirmed the conviction in a published opinion. Cotton v. State, 662 S.W.2d 110 (Tex.App. — Houston [1st Dist.] 1983). With one justice dissenting, the Court of Appeals upheld the validity of § 61.71(a)(6), supra, against appellant’s assertion that the statute is unconstitutionally vague. On April 18, 1984, we granted appellant’s petition for discretionary review to examine the constitutionality of § 61.71(a)(6). We reverse.

V.T.C.A., Alcoholic Beverage Code, § 61.-71 (Grounds for Cancellation or Suspension: Retail Dealer), provides in pertinent part:

“(a) The commission or administrator may suspend for not more than 60 days or cancel an original or renewal retail dealer’s on-or off-premise license if it is found, after notice and hearing, that the licensee:
(6) sold, served, or delivered beer to a person showing evidence of intoxication. (Emphasis added.)

V.T.C.A., Alcoholic Beverage Code, § 61.-77 (Certain Acts Also Violations of Code), reads in part:

“Any act of omission or commission which is a ground for cancellation or suspension of a license under section 61.-71 ... of this code is also a violation of this code, punishable as provided in Section 1.05 of this code_”

V.T.C.A., Alcoholic Beverage Code, § 1.05 (General Penalty), provides:

“(a) A person who violates a provision of this code for which a specific penalty is not provided is guilty of a misdemeanor and on conviction is punishable by a fine of not less than $100 nor more than $1000 or by confinement in the county jail for not more than one year or by both.
(b) The terms ‘specific penalty,’ as used in this section, means a penalty which might be imposed as a result of a criminal prosecution.”

V.T.C.A., Alcoholic Beverage Code, § 61.-71(d), provides that the ground set forth in subsection (a)(6) “also [applies] to an agent, servant, or employee of the licensee.”

Appellant argues that an overzealous police officer can determine that anyone shows, “evidence of intoxication” and can use the § 61.71(a)(6) proscription as a subterfuge for the arrest of a license holder or employee of an establishment licensed by the Texas Alcoholic Beverage Commission. Appellant contends that there is no objective standard by which a person’s conduct can be measured. We agree.

A statute which forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 323 (1926); Passmore v. State, 544 S.W.2d 399 (Tex.Cr.App.1976); Baker v. State, 478 S.W.2d 445 (Tex.Cr.App.1972); Ex parte Chernosky, 153 Tex.Crim. 52, 217 S.W.2d 673 (1949).

A statute is void for vagueness if it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1953), or if it “encourages arbitrary and erratic arrests and convictions.” Papachristou, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066 (1937). Either is an independent ground. See also, Goocher v. State, 633 S.W.2d 860 (Tex.Cr.App.1982); Bates v. State, 587 S.W.2d 121 (Tex.Cr.App.1979); McMorris v. State, 516 S.W.2d 927 (Tex.Cr.App.1974).

The critical statutory phrase “evidence of intoxication” is readily distinguishable from the standard of guilt upheld by this Court in Campos v. State, 623 S.W.2d 657 (Tex.Cr.App.1981), and the standard of criminal responsibility upheld by the Houston Court of Appeals in Alexander v. State, 630 S.W.2d 355 (Tex.App. — Houston [1st] 1982, no pet.).

In Campos, supra, the defendant attacked the constitutional validity of V.T. C.A., Alcoholic Beverage Code, § 101.63(a), which provides:

“(a) A person commits an offense if he knowingly sells an alcoholic beverage to an habitual drunkard or an intoxicated or insane person.” (Emphasis added.)

Finding that the word “intoxicated” was not statutorily defined, we held that it was to be given its commonly understood meaning. Thus defined, “[a] person of common intelligence can determine with reasonable precision what conduct it is his duty to avoid under the statute.” Campos, supra at 659. And indeed we can.

In Alexander, supra, the Court of Appeals sustained the validity of the Texas public intoxication statute, V.T.C.A., Penal Code, § 42.08(a), which provides:

“(a) An individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another.” (Emphasis added.)

Again, this is a readily ascertainable standard of prohibited conduct. See Davis v. State, 576 S.W.2d 378, n. 2, (Tex.Cr.App.1978), reh’g denied en banc, (1979).

It can easily be seen, however, that there is a substantial and significant distinction between the criteria “an intoxicated person” or a person “under the influence of alcohol ... to the degree that he may endanger himself or another’ and the criteria “a person showing evidence of intoxication.” The latter category encircles and describes not only those who are so intoxicated that they exhibit “outward signs” of that condition, but also those who are not intoxicated, yet, nevertheless, exhibit one or more of the classic symptoms of intoxication that are universally accepted as “evidence” in criminal cases. Therein lies the problem.

“Evidence of intoxication” encompasses specific conduct that, when combined with other specific conduct which is also evidence of intoxication, leads to the conclusion that a person is intoxicated or is under the influence of alcohol to the degree that he may endanger himself or another. But individual symptoms of intoxication, when manifesting themselves alone instead of in concert, bear little relation to ascertainable criminal conduct. Slurred speech, bloodshot eyes, a staggering gait, or simple drowsiness are each individually “evidence of intoxication,” but common experience teaches us that each may be demonstrated by the intoxicated or the abstemious, the soused or the sober. So is serving a person exhibiting one of these symptoms a violation of the law or not? Similarly, since alcoholic breath is “evidence of intoxication,” if while receiving a patron’s order for a second beer the tavern owner detects the odor of the first on the customer’s breath, is it or is it not a violation of § 61.71(a)(6) for the licensee to consummate the sale of that second beer?

Our inability to answer these questions, except with a guess, demonstrates clearly that § 61.71(a)(6) is unconstitutionally vague. The perimeters of its prohibition are imprecise. It is axiomatic that a criminal statute must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). As currently enacted, a retail dealer licensee must simply guess at the standard of criminal responsibility. Further, “if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.” Grayned, supra. It is not sufficient to leave enforcement to the sound discretion of the police, trusting them to invoke the law only in appropriate (whatever that means) cases. A criminal statute must itself be precisely drawn so that it eliminates the risk of capricious application rather than fosters it as the present statute does.

We hold, therefore, that § 61.71(a)(6) is unconstitutionally vague and unenforceable as a penal sanction. Accordingly, the judgments of the court of appeals and the trial court are reversed and the cause is remanded to the trial court for dismissal of the information.

TEAGUE, Judge,

concurring.

I wholeheartedly agree with the conclusion that Judge Miller forms in the opinion he writes for the Court, that “Our inability to answer these questions,, [which are set out in the opinion], except with a guess, demonstrates clearly that Section 61.-71(a)(6) is unconstitutionally vague.”

I write because the Legislature is now in session, and believe that they should be expressly informed of the action this Court has taken. I also believe that it would be very simple for that body of our government to reword the statute so that a properly worded statute, which unquestionably is needed to protect some of our citizens, will be available not only to law enforcement personnel, but to the large number of persons who sell, serve, or deliver beer to other persons to be consumed on the spot.

I also write because I believe that there is a world of difference in meaning between the phrase “showing evidence of intoxication” and the phrases “obviously intoxicated” or “visibly intoxicated” or “actually or apparently under the influence of liquor.” It is the failure of the State and Presiding Judge Onion, and those judges who join his dissenting opinion, to see the obvious distinction in meaning that the terms facially have that causes their positions to be unacceptable. As Judge Miller has so cogently and clearly demonstrated, and pointed out for the Court, for one to make the determination that another person is “showing evidence of intoxication” can amount only to a mere guess that such person has consumed “one too many beers.” Without question, to uphold such a statute as we have here would permit an overzealous member of law enforcement to unlawfully invade the privacy of some of our citizens. As to the other phrases, however, I find that facially they are sufficiently clear to put one person on notice that another person has consumed one too many beers.

I find that when the Legislature enacted Section 61.71 of the Alcoholic Beverage Code, its intent was to put wait persons on notice that they must take negative action, in the form of refusing to serve a person “one more beer,” if they observe that that person has had “one too many beers.” I also find that the Legislature intended that if persons who sell, serve, or deliver “one more beer” to a person who has had “one too many beers,” if caught, they had to suffer the consequences for not taking negative action. However, it is apparent to me that when the statute was drafted, the drafters failed to peruse like statutes of other States. Had they done so, I believe that they would have drafted a statute that would have passed muster, rather than drafting the above statute, which, on its face, is obviously unconstitutional.

ONION, Presiding Judge,

dissenting.

Appellant was convicted in a bench trial of the offense of selling beer to a person “showing evidence of intoxication,” in violation of V.T.C.A., Alcoholic Beverage Code, §§ 61.71(a)(6), and 61.77. Punishment was assessed by the court at a fine of $200.00. V.T.C.A., Alcoholic Beverage Code, § 1.05.

On appeal appellant complained the information failed to state an offense, and attacked the constitutionality of V.T.C.A., Alcoholic Beverage Code, § 61.71(a)(6). He contended that the phrase in the statute “showing evidence of intoxication” is so vague and overbroad that it is unconstitutional when applied in a criminal context. The panel of the Houston Court of Appeals [1st Dist.] affirmed the conviction with one justice dissenting on the constitutional question. Cotton v. State, 662 S.W.2d 110 (Tex.App. — Houston [1st Dist.] 1983). We granted appellant’s petition for discretionary review Court of Appeals’ holding that said § 61.71(a)(6) is constitutional.

V.T.C.A., Alcoholic Beverage Code, § 61.-71 (Grounds for Cancellation or Suspension: Retail Dealer), reads in part:

“(a) The commission or administrator may suspend for not more than 60 days or cancel an original or renewal retail dealer’s on- or off-premise license if it is found, after notice and hearing, that the licensee:
if(l) ⅜ * ⅝
ÍÍ* * * *
“(6) sold, served, or delivered beer to a person showing evidence of intoxication; _” (Emphasis supplied.)

V.T.C.A., Alcoholic Beverage Code, § 61.-77 (Certain Acts Also Violations of Code), reads:

“Any act or omission or commission which is a ground for cancellation or suspension of a license under Section 61.-71, 61.74, or 61.75 of this code is also a violation of this code, punishable as provided in Section 1.05 of this code, except that the penalty for making a false statement in an application for a license or in a statement, report, or other instrument to be filed with the commission, which is required to be sworn, is provided in Section 101.69 of this code.”

V.T.C.A., Alcoholic Beverage Code, § 1.05 (General Penalty), provides:

“(a) A person who violates a provision of this code for which a specific penalty is not provided is guilty of a misdemean- or and on conviction is punishable by a fine of not less than $100 nor more than $1,000 or by confinement in the county jail for not more than one year or by both.
“(b) The term ‘specific penalty,’ as used in this section, means a penalty which might be imposed as a result of a criminal prosecution.”

Appellant argues that an overzealous. police officer can determine that anyone “shows evidence of intoxication” and can use that section’s proscription as a subterfuge for the arrest of a license holder or employee of an establishment licensed by the Texas Alcoholic Beverage Commission.

Whenever an attack upon the constitutionality of a statute is presented for determination, we commence with the presumption that such statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting the statute. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Cr.App.1978); Ex parte Smith, 441 S.W.2d 544 (Tex.Cr.App.1969); Smith v. Davis, 426 S.W.2d 827 (Tex.Sup.Ct.1968). The burden rests upon the individual who challenges the statute to establish its unconstitutionality. Ex parte Granviel, supra; Robinson v. Hill, 507 S.W.2d 521 (Tex.Sup.Ct.1974). See also Broyles v. State, 552 S.W.2d 144, 148 (Tex.Cr.App.1977).

It is the duty of the court to uphold the statute if a reasonable construction of said statute can be ascertained which will render it constitutional and carry out the legislative intent. Ely v. State, 582 S.W.2d 416 (Tex.Cr.App.1974). If a statute is capable of two constructions, one of which sustains its validity, the courts will give to it the interpretation that sustains its validity. Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); Ex parte Granviel, supra, and cases there cited.

In 53rd Tex.Jur.2d, Statutes, § 184, p. 277, it is written:

“Every reasonable intendment and presumption will be made in favor of the constitutionality and validity of a statute, until the contrary is clearly shown. The legislature is presumed to have regarded constitutional limitations or requirements in enacting laws, as assiduously as the courts do in construing and applying them. And before a legislative act will be set aside, it must clearly appear that its validity cannot be supported by any reasonable intendment or allowable presumption.”

The standard rule, which has become axiomatic, in considering allegations that a statute is void for vagueness and indefiniteness is:

A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process. Ex parte Chernosky, 217 S.W.2d 673 (Tex.Cr.App.1949); Ely v. State, supra; Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed.2d 322 (1925); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1938). A law must be sufficiently definite that its terms and provisions may be known, understood and applied; otherwise, it is void and unenforceable. Floyd v. State, 575 S.W.2d 21 (Tex.Cr.App.1978). See also Ex parte Granviel, supra; Ex parte Holsted, 147 Tex.Cr.R. 453, 182 S.W.2d 479, 482 (1944).

The standard rule has been adopted in Texas as the citations indicated. However, as noted in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), greater leeway is allowed when a court considers allegations of vagueness and indefiniteness in “regulatory statutes governing business activities.” 405 U.S. at 162, 92 S.Ct. at 843. In that respect, the court can consider both the face and the conduct to which it is applied. See United States v. National Dairy Products, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). Furthermore, the language under attack can be “measured by common understanding and practices” or “construed in the sense generally understood.” United States v. Petrillo, 332 U.S. 1, at 8, 67 S.Ct. 1538 at 1542, 91 L.Ed. 1877 (1947). See Ex parte Chernoski, supra; at 674; Ely v. State, supra, at 419.

A statute is not rendered unconstitutionally vague merely because its words or terms are not specifically defined. Floyd v. State, supra at 23; Powell v. State, 538 S.W.2d 617, 619 (Tex.Cr.App.1976), cert. den. 429 U.S. 928, 97 S.Ct. 334, 50 L.Ed.2d 298.

V.T.C.A., Alcoholic Beverage Code, § 1.02, provides that the Code Construction Act (Article 5429b-2, Y.A.C.S.) applies to the construction of each provision of the code except as otherwise expressly provided. Section 2.01 of said Code Construction Act provides that words and phrases are to be “read in context and construed according to the rules of grammar and common usage.”

We also observe that Article XVI, § 20, provides in part:

“The Legislature shall also have the power to regulate the manufacture, sale, possession and transportation of intoxicating liquors, including the power to establish a State Monopoly on the sale of distilled liquors.”

V.T.C.A., Alcoholic Beverage Code, § 1.03 (Public Policy), provides:

“This code is an exercise of the police power of the state for the protection of the welfare, health, peace, temperance, and safety of the people of the state. It shall be liberally construed to accomplish this purpose.”

Turning to the challenged phrase in § 61.71(a)(6) of the Alcoholic Beverage Code, “showing evidence of intoxication,” we do not find that the phrase is defined for the purpose of the statute or for the Alcoholic Beverage Code.

However, in Campos v. State, 623 S.W.2d 657 (Tex.Cr.App.1981), this Court upheld the constitutionality of V.T.C.A., Alcoholic Beverage Code, § 101.63, against the contention that it fails to provide a standard or definition of the words “intoxicated” or “intoxication.” Section 101.63 reads in pertinent part:

“(a) A person commits an offense if he knowingly sells an alcoholic beverage to an habitual drunkard or an intoxicated or insane person.”

In rejecting Campos’ contention, this Court wrote:

“We hold that since the word ‘intoxicated’ as used in said Section 101.63 is not defined therein or otherwise statutorily defined for the purpose of such statute it is to be given its commonly understood meaning.
“We cannot agree that the failure to define ‘intoxicated’ in Section 101.63 renders the statute ‘defective’ or unconstitutionally vague. A person of common intelligence can determine with reasonable precision what conduct it is his duty to avoid under the statute.”

In McMorris v. State, 516 S.W.2d 927 (Tex.Cr.App.1974), the defendant was found guilty of a violation of Article 341(b), V.A.P.C., 1925 (resisting arrest by use of a firearm against a peace officer). The statute in pertinent part provided:

“A person who uses or exhibits a firearm in resisting any lawful arrest, apprehension, or investigation by a peace officer is guilty of a felony....”

McMorris contended that the statute provided no standards for determining whether an act is a criminal act and that a person of ordinary intelligence cannot determine from the wording of the statute what is prohibited. He contended the terms “... exhibit, resisting lawful arrest, apprehension and investigation” were subject to overly broad interpretation.

In rejecting the contention this Court wrote:

“The meaning of the words used in Article 341(b), V.A.P.C., are well known and may be understood by a person of ordinary intelligence. They give fair notice of the acts prohibited. The statute does not threaten constitutionally protected conduct of this appellant or of others. It is not overbroad. See Colten v. Kentucky, supra [407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1982)]. Cf. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).”

See also Alexander v. State, 630 S.W.2d 355 (Tex.App. — Houston [1st] 1982) (no pet. hist.), holding the public intoxication statute (V.T.C.A., Penal Code, § 42.08), which states that an individual commits an offense if he appears in a public place under the influence of alcohol or any other substance to a degree that he may endanger himself or another, was not unconstitutionally vague and overbroad.

Although the phrase “showing evidence of intoxication” is not defined in the Code, we observe that “evidence” is defined in Webster’s New Collegiate Dictionary as “a. an outward sign: Indication; b. something that furnishes proof.” The Random House Dictionary of the English Language, Unabridged Edition (1965), defines “evidence” as “1. ground for belief; that which tends to prove or disprove something, proof 2. something that makes evident; an indication or sign. The same authority defines “evident” as “plain or clear to the sign or understanding.” And in Campos v. State, supra, this Court examined the commonly understood meaning of the word “intoxication.”

In Rice v. Alcoholic Beverage Control Appeals Board, 173 Cal.Rptr. 232, 118 Cal.App.3d 30 (2d Dist.1981), a California court was called upon to construe § 25602(a) of the Business and Professions Code of that state. The California statute provides:

“Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.” (Emphasis added.)

In Rice the court stated:

“Courts have long recognized that the outward manifestations of intoxication are well known and easily recognized. In Coulter v. Superior Court (1978), 21 Cal.3d 144, 155, 145 Cal.Rptr. 534, 577 P.2d 669, the court said: ‘Defendants have argued the term ‘obviously intoxicated’ is too broad and subjective to serve as a satisfactory measure for imposition of civil liability. However, the phrase is contained in section 25602, a criminal statute, and the courts have experienced no discernible difficulty in applying it. [See Samaras v. Dept. of Alcoholic Beverage Control (1960), 180 Cal.App.2d 842, 844, 4 Cal.Rptr. 857; People v. Smith (1949) 94 Cal.App.2d Supp. 975, 210 P.2d 98; People v. Johnson (1947) 81 Cal.App.2d Supp. 973, 975-976, 185 P.2d 105). As described in Johnson.] ” (Emphasis supplied.)

In Johnson, supra, the court wrote:

“It seems clear, therefore, that a duty is placed upon the seller, before serving the intended purchaser, to use his powers of observation to such extent as to see that which is easily seen and to hear that which is easily heard, under the conditions and circumstances then and there existing. On the other hand, it is equally clear that he is not required to subject the customer to tests which disclose symptoms not readily apparent to anyone having normal powers of observation— sight, hearing and possibly smell. The use of intoxicating liquor by the average person in such quantity as to produce intoxication causes many commonly known outward manifestations which are ‘plain’ and ‘easily seen or discovered.’ If such outward manifestations exist and the seller still serves the customer so affected he has violated the law, whether this was because he failed to observe what was plain and easily seen or discovered, or because, having observed, he ignored that which was apparent. Upon the trial, therefore, the facts constituting the alleged outward manifestations should be presented, and it is the exclusive province of the jury to determine whether or not they are such as to be obvious to a person having normal powers of observation, and recognizable as the usual indications of an intoxicated person.” See also Kyle v. State, 366 P.2d 961 (Okla.Cr.App.1961).

The Pennsylvania Liquor Code (47 P.S. 4-493), provides in part:

“It shall be unlawful for any licensee ... or any employee, servant or agent of such licensee, ... or any other person to sell, furnish, or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverage to be sold furnished or given to any person visibly intoxicated, or to any insane person, or to any minor, Or to habitual drunkards, or persons of known intemperate habits.” (Emphasis supplied.)

In Smith v. Evans, 421 Pa. 247, 219 A.2d 310 (1966), the court said:

“If a tavern keeper serves intoxicating liquors to anyone in a visible state of intoxication he violates the law....” See also Connelly v. Ziegler, 380 A.2d 902, 251 Pa.Super. 521 (1977).

In New York, § 65 of the Alcoholic Beverage Control Code, provides in part:

“No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverage to ...
“2. any intoxicated person or to any person, actually or apparently under the influence of liquor;
“3. any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages.” (Emphasis supplied.)

In 45 Amer.Jur.2d, Intoxicating Liquors, § 268, p. 669, it is written:

“Statutes frequently prohibit the selling, giving, or furnishing of intoxicating liquors to intoxicated persons. These usually place a duty upon the seller, before he serves a prospective purchaser, to use his powers of observation to see that which can easily be seen and hear that which can easily be heard and the existing conditions and circumstances, although he is not required to subject his customers to tests which would disclose symptoms not readily apparent to one having normal powers of observation.”

Appellant argues that under the literal wording of the instant Texas statute— “showing evidence of intoxication,” arbitrary and capricious arrests could be made by over zealous police officers. He urges there is no objective standard by which a person’s conduct can be measured. He questions whether it would be proper to arrest an individual who sells beer to a person who merely has bloodshot eyes, who simply appears sleepy, drowsy, or who simply stumbles before the sale. Appellant asks “would it be proper to arrest and charge a bartender who sells a beer to a person who has had one other beer simply because that person now has a strong smell of alcohol on his breath?” Appellant asserts that since there is no ascertainable standard of guilt, the statute in question is vague and overbroad and it should be held unconstitutional.

The State argues it is a cardinal rule of statutory construction that where statutory words are not defined, the words employed are given their plain meaning, their common usage. It contends the statutory phrase in question means it is an offense to serve beer to one who is exhibiting “outward signs” or “proof of intoxication.”

The Texas Alcoholic Beverage Code is an exercise of the police power of the State for the protection of the welfare, health, peace and temperance and safety of the people. V.T.C.A., Alcoholic Beverage Code, § 1.03. The statute is presumed to be constitutional. The requirement of reasonable certainty in statutes affecting individuals does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding. Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 586-587, 76 L.Ed. 1167 (1932); Budd v. Madigan, 418 F.2d 1032 (9th Cir.1969). The standard, as seen, for determining whether a statute is void for vagueness is whether it gives a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute. Papachristou v. City of Jacksonville, supra; McMorris v. State, supra. The regulatory statute here challenged meets that standard and passes the test. It is not vague and overbroad. It is constitutional. See Fourteenth Amendment, United States Constitution; Article I, § 19, Texas Constitution.

The judgment of the Court of Appeals should be affirmed. I dissent.

THOMAS G. DAVIS and W.C. DAVIS, JJ., join.

      . This standard is the lineal descendant of a 1937 amendment to the Texas Liquor Control Act. See, Acts 1937, 45th Leg., p. 1053, 1108, ch. 448, Art. II, § 19(b).

      . The same distinction lies between the instant statute and those which refer to an "obviously intoxicated person,” see Cal.Bus. & Prof.Code, § 25602(a) (West Supp.1984), or a "person visibly intoxicated," see Pennsylvania Liquor Code, Pa.Stat.Ann. tit. 47, § 4-493 (Purdon 1969).

      . Evidence of intoxication may include, inter alia:
      (a) slurred speech:

        Campos v. State, 623 S.W.2d 657 (Tex.Cr. App.1981); Annis v. State, 578 S.W.2d 406 (Tex.Cr.App. 1979); Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.1975); Heck v. State, 507 S.W.2d 737 (Tex.Cr.App. 1974); Rangel v. State, 502 S.W.2d 152 (Tex.Cr.App.1973);
      (b) bloodshot eyes:

        Annis, supra; Rangel, supra; Vaughn v. State, 493 S.W.2d 524 (Tex.Cr.App.1972); Wagoner v. State, 402 S.W.2d 738 (Tex.Cr.App. 1966); Hooker v. State, 388 S.W.2d 951 (Tex. Cr.App.1965);
      (c) the odor of alcohol on the person:

        Dorsche v. State, 514 S.W.2d 755 (Tex.Cr. App.1974); Fontenot v. State, 486 S.W.2d 941 (Tex.Cr.App.1972); Johnson v. State, 446 S.W.2d 324 (Tex.Cr.App.1969); Thurmond v. State, 441 S.W.2d 528 (Tex.Cr.App.1969); Lamb v. State, 409 S.W.2d 418 (Tex.Cr.App. 1966);
      (d) unsteady balance:

        Campos, supra; Dorsche, supra; Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App. 1974); Rangel, supra; Fontenot, supra; Goff v. State, 446 S.W.2d 313 (Tex.Cr.App.1969);
      (e) a staggered gait:

        Dickey v. State, 552 S.W.2d 467 (Tex.Cr.App. 1977); Casey v. State, 414 S.W.2d 657 (Tex.Cr. App.1967); Riley v. State, 406 S.W.2d 438 (Tex.Cr.App.1966); Evans v. State, 402 S.W.2d 756 (Tex.Cr.App.1966); Hooker, supra; Lacyv. State, 374 S.W.2d 244 (Tex.Cr.App.1963); and
      (f) the odor of alcohol on the breath:

        Campos, supra; Annis, supra; Balli, supra; Heck, supra; Rangel, supra; Day v. State, 474 S.W.2d 246 (Tex.Cr.App.1971); Goff, supra; Hooker, supra; among other things.

      . As amended, Acts 1981, 67th Leg., p. 254, ch. 107, § 5, eff. Sept. 1, 1981.

      . V.T.C.A., Alcoholic Beverage code, § 61.71(d), provides that Subsection (a)(6) also applies to an agent, servant, or employee of the licensee.

      . In McMorris v. State, 516 S.W.2d 927, 929 (Tex.Cr.App.1974), this court wrote:
      "A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. Papachristou v. City of Jacksonville, 405 U.S. 165, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed.2d 989 (1953), and if it encourages arbitrary and erratic arrests and convictions. Papachristou v. City of Jacksonville, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed.2d 1093 (1940); Herndon v. Lowrey, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed.2d 1066 (1937).” See also Goocher v. State, 633 S.W.2d 860 (Tex.Cr. App.1982); Bates v. State, 587 S.W.2d 121 (Tex.Cr.App. 1979).

      . The liquor business is subject to regulation under the police power of the state. Neel v. Texas Liquor Control Board, 259 S.W.2d 312 (Tex.Civ.App. — Austin 1953), ref. n.r.e. See also Munoz v. City of San Antonio, 318 S.W.2d 741 (Tex.Civ.App. — San Antonio 1959).


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

text:
    Anthony BONFANTI, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 64086.
    Court of Criminal Appeals of Texas, En Banc.
    March 6, 1985.

      Lajuanda T. Lacy, Tyler, for appellant.
    Hunter B. Brush, Dist. Atty. and Christian Harrison, Asst. Dist. Atty., Tyler, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W.C. DAVIS, Judge.

A jury found appellant guilty of aggravated rape. The court assessed punishment at confinement for life.

Appellant challenges the sufficiency of the evidence to support the verdict, contending that there was no evidence that he threatened death and serious bodily injury.

Appellant was charged by indictment with aggravated rape. The indictment alleged that the intercourse was nonconsen-sual because appellant compelled the complainant to submit “by force, that overcame such earnest resistance as might reasonably have been expected under the circumstances ” — V.T.C.A. Penal Code, Sec. 21.02(b)(1); and because appellant compelled the complainant to submit “by threats, communicated by actions, words and deeds, that would prevent resistance by a woman of ordinary resolution_”— V.T.C.A. Penal Code, Sec. 21.02(b)(2). After each consent element the same aggravating factor was charged, namely, that appellant compelled the complainant’s submission “by threat of death and serious bodily injury to be imminently inflicted on [the complainant].” See V.T.C.A., Penal Code, Sec. 21.03(a)(2).

The complainant testified that, on April 28, 1978, she had stayed home from work because she felt ill. Appellant had been doing carpentry work on the house in which she lived and had come in and out of the house several times that morning. The complainant was sitting on the couch in the living room when appellant walked around behind her, put a gun to her head, and said, “This is a stick up.” She thought he was kidding until he said he was not kidding and told her to go upstairs with him. As she started up the stairs the complainant said, “No, please don’t.” Appellant replied that he “would use it if he had to.” After they reached to the top of the stairs, appellant pointed the gun at the complainant, ordered her to take her clothes off, and then kissed and fondled her. The complainant asked to go back downstairs, hoping that she could reach a shotgun in a closet there. Appellant became impatient and told her to get back upstairs. He continued pointing the gun at her.

Appellant made the complainant lie down on the floor and tied the complainant’s hands to the leg of a bed. As she attempted to untie the rope, he put the gun to her head and cocked it. She stopped trying to untie the rope. Appellant forced the complainant to have oral intercourse, fondled her, and then had sexual intercourse with her. During this episode appellant kept the gun in his hand.

Appellant untied the complainant from the bed, and, keeping the rope around her wrist, led her downstairs. He led her back upstairs to put her robe on, then went downstairs and asked her to get her purse. He took money from the purse. The complainant asked him not to kill her; he told her he was going to take her down the road and leave her so she would not be near a telephone. The complainant testified that she was sure then that he was going to take her into the woods and shoot her.

Appellant led the complainant to his car, drove a short distance down a dirt road, tied her to a tree, and then drove off.

Dr. Harold Cameron testified, inter alia, that the complainant had abrasions on her wrists consistent with rope burns. Appellant did not testify or offer any witnesses in his behalf. The testimony of the State’s witnesses was not impeached.

Appellant’s actions, words, and deeds, including pointing the gun at the complainant and forcing her to undress, placing the gun at her head and cocking it, and telling the complainant that he would use the gun if he had to, were ample to support the allegation that he compelled her to submit to sexual intercourse by threat of death and serious bodily injury. See Whitchurch v. State, 650 S.W.2d 422 (Tex.Cr.App.1983); King v. State, 649 S.W.2d 42 (Tex.Cr.App.1983); Berry v. State, 579 S.W.2d 487 (Tex.Cr.App.1979); Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979). The ground of error is overruled.

In his pro se brief appellant contends that the court’s charge to the jury is fundamentally defective because it instructs the jury that guilt may be found based upon a theory not alleged in the indictment. No objection was made at trial, therefore we must determine if the error was “so egregious and created such harm that [appellant] ‘has not had a fair and impartial trial.’ ” Almanza v. State, 686 S.W.2d 157, 173 (Opinion on rehearing, delivered February 27,1985).

Appellant was charged by indictment with aggravated rape, specifically, noncon-senual intercourse by force and threats. See Y.T.C.A. Penal Code, Sec. 21.02(b)(1) & (2). The aggravating factor alleged was that appellant compelled the victim to have sexual intercourse “by threat of death and serious bodily injury to be imminently inflicted on [the complainant].” The court’s charge instructed the jury that if they found that appellant,

... did then and there unlawfully and intentionally and without the consent and against the will of [the complainant], a female, have sexual intercourse with the [complainant], and that the said [complainant] was not then and there the wife of the said defendant, and that the defendant used force on [the complainant] on the occasion in question, as well as threats, to accomplish the sexual intercourse, and that such force was sufficient to overcome such earnest resistance as might reasonably be expected under the circumstances at the time, or that such threat or threats, if any, were such as would prevent resistance by a woman of ordinary resolution under the same or similar circumstances because of a reasonable fear of harm, and that the defendant, in the course of the same criminal episode as the alleged rape caused serious bodily injury to [the complainant] or compelled submission to the rape by threat of death or serious bodily injury to be imminently inflicted on her, then you will find the defendant guilty as charged in the indictment.

Unfortunately, the court failed to compare the charge to the indictment and did not notice that the indictment did not allege that appellant caused serious bodily injury. The charge thus enlarged upon the allegations in the indictment and instructed the jury that they could find appellant guilty if they found either that he had caused bodily injury or that he had threatened death or serious bodily injury as alleged in the indictment. V.T.C.A. Penal Code, Sec. 21.-03(a)(1) & (2).

Prior to this Court’s opinion in Al-manza, supra, such a charge required automatic reversal. Stone v. State, 599 S.W.2d 830, 831 (Tex.Cr.App.1980); Scott v. State, 599 S.W.2d 618 (Tex.Cr.App.1980); McNiel v. State, 599 S.W.2d 328 (Tex.Cr.App.1980); Lowry v. State, 579 S.W.2d 477 (Tex.Cr.App.1979). In accord with Alman-za, we now determine if the error is “fundamental” — so egregiously harmful that appellant has not had a fair and impartial trial, by reviewing “the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, supra, at 157.

The evidence of appellant’s guilt of committing rape by threatening death and serious bodily injury was uncontradicted and unimpeached. Appellant did not testify and did not offer any witnesses in his defense. The only mention of any actual injury to the complainant was Dr. Cameron’s statement, made while describing her medical condition, that there were abrasions on her wrists that were consistent with rope burns.

During argument, neither the State nor appellant made an issue of either the need for, or lack of, proof of bodily injury. The thrust of appellant’s argument to the jury was an attempt to show that the complainant should have resisted appellant despite the existence of the gun and other threatening words and actions of appellant.

The court’s charge informed the jury that appellant was charged with aggravated rape, to which appellant had pleaded not guilty. It also contained definitions of rape and lack of consent under 21.02(a) and 21.02(b)(1) & (2), respectively; a definition of aggravated rape, “by threat of death or serious bodily injury to be imminently inflicted on anyone,” 21.03(a)(2); and definitions of “intentionally”, “sexual intercourse”, “serious bodily injury”, and “episode”. Then the charge stated:

The indictment in this case having alleged the use of force and threats by the defendant of the infliction of serious bodily injury upon the alleged victim, before you would be warranted in convicting the defendant, you must find from the evidence beyond a reasonable doubt that defendant used such force on the occasion in question, if any, as to overcome such earnest resistance as might reasonably be expected under the circumstances at the time, or, that any threat the defendant is alleged to have made in accomplishing the sexual intercourse, if any, was such that it would prevent resistance by a woman of ordinary resolution, under the same or similar circumstances because of a reasonable fear of harm, and the defendant, in the course of the same criminal episode as the alleged rape, compelled submission to the rape, if any, by threat of death or serious bodily injury to be imminently inflicted on [the complainant], and that there was penetration of the sexual organ of the female in question by the male organ of the party accused. If you have a reasonable doubt as to any of these matters, you must find the defendant not guilty.

The application paragraph appeared next, containing the erroneous addition that appellant “caused serious bodily injury to [the complainant],” joined to the correct part of the paragraph,” or compelled submission to the rape by threat of death or serious bodily injury to be imminently inflicted on her,....”

The jury found appellant “guilty of aggravated rape as charged in the indictment.”

After reviewing all of the foregoing information, and noting particularly, the complete lack of evidence of “serious bodily injury”, and the fact that serious bodily injury was not an issue that was argued or presented to the jury, we hold that the error in the charge did not deprive appellant of a fair and impartial trial. The evidence of appellant’s guilt of the aggravating feature for which he was indicted was overwhelming and uncontradicted. Given all of this, we conclude that a jury would not have been misled by the erroneous addition in the charge, and we do not believe that a rational jury would have found the addition a reasonable theory under which to convict appellant. In light of the evidence, the argument, the verdict, and the entire charge we hold that appellant was given a fair and impartial trial. The ground of error is overruled.

Appellant contends that the trial court abused its discretion by sentencing him to confinement for life. Appellant argues that because he was a first offender with no arrest record, because the victim suffered no serious bodily injury, and because appellant’s family would be on welfare because of his confinement, the sentence constitutes cruel and unusual punishment.

The sentence is within the range of punishment established for a first degree felony. See V.T.C.A. Penal Code, Sec. 12.32. The judge stated that he considered the facts of the case, including the use of a firearm, the gravity of the offense, the lack of any justification, excuse, or reason for the rape, and the anguish and mental scars of the victim. In light of these considerations he assessed punishment at confinement for life.

The punishment is within the statutory limits of punishment and from the facts presented we cannot say that the court abused its discretion. Bass v. State, 468 S.W.2d 465 (Tex.Cr.App.1971). The ground of error is overruled.

In accord with appellant’s last ground of error, we must reform his sentence because the trial court did not impose a minimum term as was required by the indeterminate sentence law then in effect. See Art. 42.09(1), V.A.C.C.P. When the punishment assessed is confinement for life under the sentencing scheme used in appellant’s case, the sentence must impose the minimum term as well as the maximum. Thomas v. State, 587 S.W.2d 707 (Tex.Cr.App.1979). The sentence is reformed to show a term of not less than 5 years or more than life.

The sentence is reformed and the judgment affirmed.

TEAGUE, Judge,

concurring.

Orwell, have you been reading what the Court of Criminal Appeals has been writing about objected to and unobjected to fundamental error in the trial court’s charge on guilt as well as punishment?

If not, but just to bring you up to date, I point out that based upon its decision of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), a majority of this Court holds in this cause that an accused person is not deprived of a fair and impartial trial by jury simply because the jury was instructed that it could find the appellant guilty on a theory not alleged in the indictment. Thus, it is now permissible for a trial judge to erroneously instruct the jury that it might find the defendant guilty even if the defendant’s guilt was based upon a theory not alleged in the indictment. Under Al-manza v. State, supra, this egregious type error does not deprive a defendant of due process or due course of law, as once guaranteed by our respective Constitutions.

I must ask: If a jury charge on guilt that enlarges upon the allegations of the indictment or information, no matter how slight or how material the degree, as to the offense with which the accused is charged with committing, if this does not constitute fundamental error, when can such error ever be calculated to injure the rights of the defendant to the extent that such error will prevent him from having a fair and impartial trial by jury? I believe that as long as Almanza v. State, supra, legally exists, the answer is going to be a simple “Never.” Cf. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).

      . All references to Penal Code provisions are to the Penal Code in effect at the time of the offense, 1978.

        . Appellant also contends that the evidence is insufficient to prove that he caused serious bodily injury. The indictment did not allege that appellant caused serious bodily injury, rather the court’s charge included that phrase as an alternative theory to the one alleged and proved. The charge contained no requirement that both the theory under which appellant was indicted 12nd the alternative theory be proved in order to authorize a verdict of guilt. Cf. Wilhoit v. State, 638 S.W.2d 489, 499 (Tex.Cr.App.1982). Therefore, the State did not have to prove such allegation and we need not examine the contention.

      . See V.T.C.A. Penal Code, Sec. 21.03(a)(2).

      . Emphasis added.

      . We have considered the other issues raised in appellant’s pro se brief and found them to be without merit.


author: W.C. DAVIS, Judge. ONION, Presiding Judge, TEAGUE, Judge,

text:
    Rick Russell KUCHA, Appellant, v. The STATE of Texas, Appellee.
    No. 201-82.
    Court of Criminal Appeals of Texas, En Banc.
    March 6, 1985.
    Murry B. Cohen, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty. and Ray Elvin Speece and George Lambright, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty. and Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

The question of “fundamental error” is before us yet again. The instant case presents an instance for application of the principles of fairness espoused in Almanza v. State, 686 S.W.2d 157 (delivered February 27,1985). Appellant was charged by indictment with the offense of aggravated robbery, enhanced under V.T.C.A. Penal Code, Sec. 12.42(b), by allegations of two prior convictions. A jury found appellant guilty of the lesser offense of robbery and assessed punishment at twenty-seven years’ confinement.

The Waco court of appeals held that nothing was presented for review because appellant did not object to the charge. See Kucha v. State, 627 S.W.2d 238 (Tex.App. —Waco 1981). We granted appellant’s petition for discretionary review to consider the court of appeals’ holding that the error is not fundamental.

Appellant pled “not true” to the enhancement allegations. The State used a pen packet and a fingerprint expert to prove those allegations. The court charged the jury that:

If you believe from the evidence beyond a reasonable doubt that prior to the commission of the offense for which you have found him guilty he was convicted as alleged in the indictment of either of the offenses; that is, robbery by firearms in cause number 177,592 or 177,594, in Harris County, Texas, on June 15, 1972, you will assess his punishment at confinement in the Texas Department of Corrections at not less than 5 years nor more than 99 years or life, and in addition thereto you may assess a fine not exceeding $10,000.

Appellant contends that the charge is fundamentally defective because it fails to instruct the jury regarding the entire range of punishment, directs a verdict of “true” to the enhancement paragraph, constitutes a comment on the weight of the evidence, and shifts the burden of proof on the enhancement paragraph to appellant.

Appellant’s plea of “not true” forced the State to prove the enhancement allegations beyond a reasonable doubt. The charge instructed the jury on the range of punishment if they found the enhancement allegations to be true, but did not instruct them on the range of punishment if they found the same to be untrue.

The verdict form did not specify whether the jury found the allegations to be true or untrue. The form stated:

We, the jury, having found the defendant guilty, assess his punishment at confinement in the Texas Department of Corrections for_

We agree with appellant that the charge was erroneous because it did not instruct the jury on the range of punishment if they found the enhancement allegations to be untrue. Our next step is to determine if this error is so harmful that appellant has not had a fair and impartial trial. Almanza, supra.

We will review his contention according to the guidelines and standard set out in Almanza, supra, — that is, whether the error was “so egregious and created such harm that [appellant] ‘has not had a fair and impartial trial.’ ” Almanza at p. —. Harm must be determined from the entire record, not only the erroneous charge.

The record of the punishment hearing held before the jury, shows that the State proved, through the use of a pen packet and fingerprint expert, that appellant had been previously convicted. Appellant’s sole objection to this proof was that the pen packet was not properly certified and authenticated.

During argument at the punishment stage, appellant’s counsel stated:

The Court has charged you [the jury] with what the punishment can be assessed at, five years to ninety-nine years or life. He [appellant] is a second offender. That is to say that he has pleaded guilty to charges, prior to this time, in 1972.

Appellant’s counsel continued to argue essentially that the jury should give no penalty because the evidence in the case was insufficient to prove that appellant committed a robbery.

The charge must be considered in light of this evidence. The fact of the prior convictions was not a contested issue at all. Appellant’s plea of “not true” only put the State to its proof. Considering that the evidence of the prior convictions was undisputed, uncontradicted, and seemed to have been taken almost as a “given” by the parties, we hold that the failure of the court to charge on the range of punishment if the enhancements were found to be untrue, was not so harmful that it deprived appellant of a fair and impartial trial. If the evidence of the prior conviction had not been so strong, or if appellant had contested it in some fashion, this issue would not be so clearcut. But, from the record it appears that all parties, including appellant, assumed the fact of the prior conviction and did not dispute its truth. Also, the prior was proven beyond a reasonable doubt by the State. In light of the record we hold that the error was not fundamental.

We also disagree with appellant that the charge as given instructed a verdict of “true” or constituted a comment on the weight of the evidence. The jury was instructed “If you believe....” (emphasis added) either of the enhancement paragraphs to be true you will assess the punishment. Compare Choice v. State, 164 Tex.Cr.R. 224, 298 S.W.2d 148 (Tex.Cr.App.1957) in which the court did not preface the charge with such a phrase. In addition, the defendant in Choice timely objected to the charge. The judgment of the court of appeals is affirmed.

ONION, Presiding Judge,

concurring.

I concur in the result. I observe that today this Court applies Almanza to the instant case, without remand, but, over my dissent, the Court in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), remanded the case to the Ft. Worth Court of Appeals to apply the rule announced in Almanza to Almanza itself. The action in Almanza was inconsistent with what we do today. We are right today and wrong in Almanza.

TEAGUE, Judge,

concurring.

Today we witness another startling valid legal reason why this Court should have aborted, rather than to have given birth to, the monster child now known in our legal circles as “Almanza the Terrible.” Also see Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), in which a majority of this Court erroneously delivered the monster child, “Almanza the Terrible,” into our legal community.

In this instance, without any real legal basis therefor, a majority of this Court holds that although the trial court’s final charge to the jury on punishment was erroneous, because it did not instruct the jury on the range of punishment if they found enhancement allegations of the indictment to be untrue, that this error was not so egregious that it deprived appellant of a fair and impartial trial; thus, the majority says that such error was harmless beyond a reasonable doubt to the rights of the appellant.

I disagree, but because of what a majority of this Court stated and held in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), which opinion most certainly did not and does not espouse any principles of fairness to the accused, or to justice in general, as the majority opinion in this cause erroneously asserts, but which opinion to the contrary espouses principles of unfairness when it comes to gauging whether a trial court’s final charge to the jury is fundamentally erroneous, I am compelled to agree with the majority opinion that, by applying what was stated and held in Almanza v. State, supra, whatever error might have existed in the court’s final charge on the issue of punishment in this cause, was harmless to the appellant, as it did not, under Almanza v. State, supra, deprive him of a fair and impartial trial.

I mentioned the following in the dissenting opinion that I filed in Almanza v. State, supra: “After today, harmless error should prevent even the most egregiously worded jury charge from constituting reversible error.” If this majority opinion does not make me a prophet, then the majority opinion that was filed in Bonfanti v. State, 686 S.W.2d 149 (Tex.Cr.App.1985), delivered this date, most certainly does.

In Almanza v. State, supra, a majority of this Court held that “if no proper objection was made at trial and the accused must claim that the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’ In both situations (objected to and unobjected to error), the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.”

In this instance, but by applying the above test from Almanza v. State, supra, the majority finds that the error in the punishment charge, which occurred because the trial judge failed to instruct the jury on the range of punishment if they found the enhancement allegations to be untrue, did not deprive appellant of a fair and impartial trial. The jury’s verdict reads as follows: “We, the jury, having found the defendant guilty [of the second degree felony offense of robbery], assess his punishment at confinement in the Texas Department of Corrections for 27 years,” which range of punishment, of course, fell within the range of punishment specified for a first degree felony offense or a second degree felony offense enhanced by a prior felony conviction, and not a second degree unenhanced felony. See Y.T.C.A., Penal Code, Section 12.33. The jury, however, found appellant guilty of the offense of robbery, a second degree felony. Notwithstanding this finding, but in light of what this Court’s majority stated and held in Almanza v. State, supra, the majority makes it obvious to almost anyone that the error was harmless beyond a reasonable doubt to appellant. I disagree.

In this instance, the jury assessed appellant’s punishment at twenty-seven (27) years’ confinement in the penitentiary, which means that had the jury found either of the enhancement allegations not true, the maximum possible confinement in the penitentiary would have been only twenty (20) years. The majority appears to reason that even if the jury was not so instructed, and even if the jury verdict form does not so reflect, such error was obviously harmless to the appellant. How can this logically be so?

Perhaps, however, after today, but in light of Almanza v. State, supra, and today’s decision, some of our trial judges will exhibit and display their resourcefulness and cleverness by conceptionalizing and executing the court’s final charge on punishment on nothing larger than the back of a pinhead, in order that a majority of this Court can easily declare in print to the world that because the jury was not given enough information regarding what punishment to assess, but because they did assess a “reasonable” punishment, any error in the charge on punishment must have been harmless to the defendant-beyond a reasonable doubt-beeause it would be patently obvious to anyone that the jury was not confused in assessing the “reasonable” punishment that it did.

      . Not less than 5 years nor more than 99 years or life. V.T.C.A. Penal Code, Sec. 12.42(b).

      . Not less than 2 years nor more than 20 years. V.T.C.A. Penal Code, Sec. 12.32.