author: WARD, Justice.

text:
    Pascual Sambrano SAN ROMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 08-82-00343-CR.
    Court of Appeals of Texas, El Paso.
    Nov. 28, 1984.

      Harry Tom Petersen — only on appeal, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., El Paso, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and OSBORN, JJ.
   OPINION

WARD, Justice.

This is an appeal from a jury conviction for the offense of aggravated rape. The jury assessed punishment at fifty years imprisonment. We reverse and remand.

In Ground of Error No. One, the Appellant asserts that the court erred by including the phrase “unlawfully” in that portion of the charge to the jury applying the requisite mental state. The application portion of the charge read in pertinent part:

Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Pascual Sambrano San Roman, in El Paso County, Texas, on or about February 22, 1982, did then and there unlawfully, intentionally or knowingly have sexual intercourse with _, a female not his wife, without the consent of the said_, and the said Pascual Sambrano San Roman compelled _ to submit or participate by the use of a threat that would prevent resistance by a woman of ordinary resolution under the same or similar circumstances because of a reasonable fear of harm

The Appellant complains that the use of the term “unlawfully”: (1) authorized conviction for conduct not constituting an offense; (2) authorized conviction on a theory not alleged in the indictment; and (3) authorized conviction on a theory alleged in the indictment as well as a theory not so alleged. These are three of the four instances set out in Cumbie v. State, 578 S.W.2d 732 (Tex.Crim.App.1979) which constitute fundamentally defective instructions in the jury charge. Appellant argues that as “unlawful” encompasses a wide range of proscribed activity ranging from tortious conduct to criminal conduct, the necessary culpable mental states of intentionally or knowingly are broadened in violation of the above mentioned charging errors. We note that only “intentionally” and “knowingly” are defined in the charge. Grammatically, it is clear that the term “unlawfully” serves as a modifier to “intentionally” and “knowingly” and it neither broadens the scope of those terms nor does it create a third impermissible mental state. Ground of Error No. One is overruled.

In Grounds of Error Nos. Two and Four, the Appellant alleges that the indictment was fundamentally defective. Appellant first complains that the indictment failed to allege that the threats had been “communicated;” thus omitting an essential element. The indictment read in pertinent part:

[Ijntentionally and knowingly have sexual intercourse with_, a female not his wife, without the consent of the said _, and the said PASCUAL SAM-BRANO SAN ROMAN compelled_ to submit and participate by the use of a threat that would prevent resistance by a woman of ordinary resolution under the same and similar circumstances because of a reasonable fear of harm; and the said PASCUAL SAMBRANO SAN ROMAN did then and there intentionally and knowingly use and exhibit a deadly weapon, to-wit: a knife in the course of the same criminal episode_ •

The applicable former provisions of the Texas Penal Code sec. 21.02(b)(2) provided that intercourse was without the female’s consent if:

(2) he compels her to submit or participate by any threat, communicated by actions, words, or deeds, that would prevent resistance by a woman of ordinary resolution under the same or similar circumstances, because of a reasonable fear of harm.

Common sense tells us that, when the indictment is read in its entirety, the phrase “use of a threat” adequately describes “communication.” See: Banks v. State, 530 S.W.2d 940 (Tex.Crim.App.1975). Appellant next complains that it was error not to allege a culpable mental state for the action of “compelling by threat.” By the same reasoning indicated above, the phrase “use of a threat,” of necessity, reflects a prior culpable mental state. See also: Jason v. State, 589 S.W.2d 447 (Tex.Crim.App.1979). Grounds of Error Nos. Two and Four are overruled.

In Grounds of Error Nos. Three and Five, the Appellant alleges the charge to the jury was fundamentally defective. The charge tracked the indictment. Appellant’s complaints center around the same purported defects discussed above with regard to the indictment. As such, no error is shown. Grounds of Error Nos. Three and Five are overruled.

In Ground of Error No. Seven, the Appellant asserts that he was not afforded reasonably effective assistance of counsel. The constitutional right to counsel does not mean errorless counsel. In order to meet the constitutional standard, counsel must provide reasonably effective assistance of counsel. Boles v. State, 598 S.W.2d 274 (Tex.Crim.App.1980). In reviewing assertions of ineffectiveness of counsel, the totality of the representation is examined as opposed to focusing upon isolated acts or omissions; the reviewing court does not engage in hindsighted comparisons of how other counsel might have tried the case. Boles, supra. Notwithstanding this rather generous standard, we find from the totality of the record that the Appellant did not receive reasonably effective assistance of counsel. During voir dire, trial counsel continually attempted to contract the jury panel despite numerous objections by the State, giving rise to the possibility that counsel was not familiar with that concept. Counsel did not explain the range of punishment nor did he inquire into the views of the panel members with regard to granting probation in an aggravated rape case. Rather, he apparently chose to accept the State’s summary presentation with regard the issue of probation. During the voir dire, counsel entered into rather peculiar soliloquies with regard to sex and human love. There was no inquiry concerning the concept of “reasonable doubt” and the burden of proof being upon the State. Counsel neither ascertained whether the panel members had been victims of crime nor did he inquire into any connection the panel members might have had with law enforcement. Counsel related to the panel how he had talked to his bartender and hairdresser concerning the case. Counsel stated:

Believe it or not, it’s not any joke, this is not intended to make you laugh, I talked to my hairdresser, and I talked to the bartender in a little old bar on Wyoming Street, and they said — I gave them the facts, not naming any names, and they told me, “Ed, when there’s sexual contact, when there’s sexual intercourse, there simply has to be medical evidence somewhere — .”

This statement in conjunction with counsel’s discourse of the vagaries of human love elicited a hostile response from several panel members. Juror No. 34, an ex-registered nurse, stated she disagreed with counsel’s statement concerning the projected medical evidence. She still appeared hostile to counsel’s statement concerning the hairdresser and bartender and his analysis of human love when she was interviewed at the bench. She gave a rather tentative statement that she could be impartial. This panel member was seated on the jury.

During the guilt-innocence stage of trial, the record reveals numerous instances of counsel’s failure to object or utilize the correct objection. (See: RII, 116,153,160, 164, 372, 373). During the presentation of the defense’s case, the following exchange took place:

A: Well, I don’t know her by the looks but I know her by my husband because he has mentioned her to me.
Q: How did he mention her to you ma’am?
STATE: Your Honor, I object to that as being hearsay. What her husband told her about Mrs_is pure hearsay.
DEFENSE: It is offered to prove the truth of the matter asserted.
STATE: That’s the very reason why it is objectionable.
THE COURT: The Court will so sustain the objection.
DEFENSE: Thank you, Your Honor. Your Honor, I would like the Court to admonish Counsel for laughing. This is not a laughing matter.
THE COURT: Well, the Court did not see it.

This exchange illustrates counsel’s lack of understanding of the law of evidence as it appears throughout the trial. The defensive theory presented at trial attempted to demonstrate that no rape had occurred. The Appellant’s wife took the stand and indicated that her husband had been having an affair with the complainant and his abandonment of the affair led to the complainant fabricating the incident. However, when the complainant took the stand, aside from some questions concerning time, counsel waived any further cross-examination. It is difficult to perceive any impelling tactical advantage to such a procedure.

During final argument, the prosecutor made the following statement:

[W]hy when they came to his house did he have to hide in the closet?
All he’d have to do is come out and explain what happened, what occurred.
You heard the police officer say when he was confronted with the charges, with an explanation, the answer from the witness stand, none. No explanation.
Do you think that’s the way a normal person would respond to the charge of Aggravated Rape, and his wife would respond to the charge of Aggravated Rape? Think about it.

The above constitutes, at the very least, an indirect comment upon the failure of the Appellant to testify. Further, comment upon the Appellant’s post-arrest silence indicates reversible error. Conway v. State, 625 S.W.2d 35 (Tex.App.-Eastland 1981, PDRR). Appellant’s counsel made the following argumentative objection to the above:

COUNSEL: Your Honor, again, I must object. I wish Counsel would stick to the meat of this matter here, the issue here is whether or not this lady had sexual intercourse, and whether or not there was penetration by the male organ, and the evidence says no, your Honor, and Counsel is trying to mislead this Jury.

This objection was properly overruled; thus nothing was preserved for error.

The most telling example of ineffectiveness occurred at the punishment stage of trial. Appellant filed an application for probation. It is clear that a jury can grant probation in this type of case. Tex.Code Crim.Pro.Ann. art. 42.12 secs. 3, 3a, 3c and 3f (Vernon 1979). Counsel did not offer any evidence either through the Appellant or his wife (who had testified previously) demonstrating his eligibility for probation. The court gave a charge concerning probation and counsel argued for probation. When the State argued that the Appellant had failed to carry his burden with regard to probation, Appellant’s counsel countered that he had no such burden. It is clear that Appellant failed to receive reasonably effective assistance of counsel. Ground of Error No. Seven is sustained.

In light of the foregoing discussion, we find it unnecessary to respond to Ground of Error No. Six.

The judgment of the trial court is reversed and the case is remanded for a new trial.


source: Caselaw Access Project

author: OSBORN, Justice.

license: Public Domain

text:
    George BLANTON, D.O., Appellant, v. Melvin MORGAN and Michael Volk, Individually and d/b/a Volk and Morgan, Appellees.
    No. 08-84-00161-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 12, 1984.
    Rehearing Denied Jan. 9, 1985.

      John Grost, El Paso, for appellant.
    John A. Langford, Collins, Langford & Pine, El Paso, for appellees.
    Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.
   OPINION

OSBORN, Justice.

In this case, a doctor, who successfully defended a medical malpractice case, seeks to recover damages from the attorneys who filed the suit against him and, according to his pleading, asserted a claim for punitive damages in an effort to extort a settlement. The trial court sustained the special exceptions to the doctor’s pleading and dismissed the case for failure to state a cause of action. We affirm.

Plaintiffs Second Amended Original Petition alleged that on August 15, 1980, Dr. George Blanton was working in the Emergency Department at Providence Hospital when he answered a general call for help in the Intensive Care Unit. He alleges he performed appropriate lifesaving measures on Carlos Barraza, who was resuscitated, but through no fault of Dr. Blanton, left in a permanent vegetative state.

The petition further alleges that he was sued by Appellees and after he refused to enter into any settlement negotiations Ap-pellees filed an amended petition seeking $10,000,000.00 in punitive damages from Dr. Blanton. He also alleges that the demand for punitive damages was filed after all discovery was complete and when the attorneys knew or should have known that the action for punitive damages was not warranted. The petition alleges the claim for punitive damages was used to try to extort a settlement and then just before trial began, said attorneys dropped their demand for punitive damages rather than assert that claim before a jury. It was contended that this was an abuse of process and malicious prosecution.

It is asserted in two points of error that the trial court erred in dismissing Appellant’s pleading because a cause of action was stated for abuse of process and malicious prosecution. For purposes of appeal we assume that the pleading, to which an exception has been sustained, is true. Therefore, our decision must be based upon a determination, for purposes of this appeal, that these attorneys did file the amended pleading seeking punitive damages in order to attempt to extort a settlement from the Appellant.

Within the last few years, several suits have been filed in Texas by doctors seeking to recover damages from patients and their attorneys as a result of prior malpractice suits. Regardless of the cause of action alleged, all have been unsuccessful. Butler v. Morgan, 590 S.W.2d 543 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref’d n.r.e.); Moiel v. Sandlin, 571 S.W.2d 567 (Tex.Civ.App.-Corpus Christi 1978, no writ); Martin v. Trevino, 578 S.W.2d 763 (Tex.Civ.App.-Corpus Christi 1978, writ ref’d n.r.e.); Wolfe v. Arroyo, 543 S.W.2d 11 (Tex.Civ.App.-San Antonio 1976, no writ). With the proliferation of malpractice suits against doctors in recent years, there has been a corresponding increase in suits by doctors against patients and attorneys. Medical Malpractice Countersuits, 84 A.L.R.3d 555 (1978). The results reached by the Texas courts are certainly consistent with the holding in similar cases from other jurisdictions. See: J. Rawson, Wong v. Tabor: The Latest Word in Physician-Attorney Counter suits, 17 Valparaiso Univ.L.Rev. 755 (1983) and S. Birnbaum, Physicians Counterattack: Liability of Lawyers for Instituting Unjustified Medical Malpractice Actions, 45 Fordham L.Rev. 1003 (1977).

In order to recover for abuse of process, a party must plead and prove: (1) that the defendant made an illegal, improper or perverted use of the process, a use neither warranted nor authorized by the process; (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process; and (3) that damage resulted to the plaintiff as a result of such illegal act. Martin v. Trevino, supra; J.C. Penney Company v. Gilford, 422 S.W.2d 25 (Tex.Civ.App.-Houston [1st Dist.] 1967, writ ref'd n.r.e.). It is generally agreed that to constitute an abuse of process the process must have been used to accomplish some end which is beyond the purview of the process and which compels a party to do some collateral thing which he could not be compelled to do. Martin v. Trevino, supra; 45 Fordham L.Rev. 1003 at 1037.

In this case, process was used for its intended purpose to require Dr. Blanton to answer the original petition. And the only complaint of Appellant relates not to that pleading but to an amended pleading which for the first time asserted a claim for punitive damages. Accepting all of Appellant’s pleading as true, there is no cause of action stated for abuse of process. Tandy Corporation v. McGregor, 527 S.W.2d 246 (Tex.Civ.App.-Texarkana 1975, writ ref’d n.r.e.); Morris v. Blangger, 423 S.W.2d 133 (Tex.Civ.App.-Austin 1968, writ ref'd n.r.e.); Blackstock v. Tatum, 396 S.W.2d 463 (Tex.Civ.App.-Houston 1965, no writ). Even if we assume that the amended pleading was maliciously filed, Dr. Blanton’s suit is fatally defective because it fails to allege an improper use of the process. Martin v. Trevino, supra. Point of Error No. One is overruled.

In order to maintain an action for malicious prosecution, a party must allege and prove: (1) a civil judicial proceeding was previously filed; (2) the defendant in the malicious prosecution case caused the original suit to be filed; (3) the commencement of the original proceeding was malicious; (4) no probable cause existed for the filing of the original proceeding; (5) termination of the original suit in favor of the party prosecuting the later malicious prosecution action, and (6) damages conforming to the legal standards under Texas law. Martin v. Trevino, supra. Texas follows the minority rule that damages cannot be recovered unless the party sued suffers some interference, by reason of the suit, with his person or property. Butler v. Morgan, supra; Martin v. Trevino, supra; 17 Valparaiso Univ.L.Rev. 755 at 758; 45 Fordham L.Rev. 1003 at 1021-1022.

“A pleading which does not allege some interference with the complainant’s person or property fails to state a cause of action for malicious prosecution and is fatally defective.” Martin v. Trevino, supra. In our case, Dr. Blanton alleges only damages that might be claimed by any party named in a civil suit. There is no allegation of interference with his person or property. In the Martin case, the court rejected an argument that this rule is outmoded and should be abolished. The court noted that “[t]he special damage rule was initially adopted by our Supreme Court for policy reasons to assure every potential litigant free and open access to the judicial system without fear of a countersuit for malicious prosecution.” The earliest cases which applied the rule in Texas are set forth in the opinion in Butler v. Morgan, supra. Point of Error No. Two is overruled.

We recognize a need for some type of cause of action for damages sustained by a professional person as a result of a malicious malpractice case where the action only seeks to extort a settlement without any probable cause to believe the cause of action being asserted is valid. See: Restatement of the Law, 2d, Torts 2d sec. 674, entitled “Wrongful Use of Civil Proceedings” and Prosser and Keeton, The Law of Torts sec. 120, Wrongful Civil Proceedings, Fifth Ed. (1984). The Texas legislature recognized the need to discourage “bad faith” malpractice suits when it passed Article 4590i, sec. 8, Tex.Rev.Civ.Stat. But, that cause of action was made contingent upon the State Bar of Texas eliminating such suits by provisions in the ethical standards by which attorneys are to conduct themselves. Unfortunately, those who suffer damages as a result of a breach of the Code of Professional Responsibility have no cause of action for such breach. Martin v. Trevino, supra; 45 Fordham L.Rev. 1003 at 1074, et seq. Other more innovative theories of recovery include prima fa-cie tort. 45 Fordham L.Rev. 1003 at 1051, et seq. This cause of action has been broadly defined as the infliction of intentional harm resulting in damage, without excuse or justification, by an act or a series of acts which would otherwise be lawful. Drago v. Buonagurio, 61 App.Div.2d 282, 402 N.Y.S.2d 250 (Sup.Ct., App.Div.3d 1978); Ruza v. Ruza, 1 A.D.2d 669, 146 N.Y.S.2d 808 (Sup.Ct., App.Div.1st 1955). One author has suggested that this theory of recovery could provide an effective remedy for the wrongful institution of an unjustified malpractice suit in those jurisdictions, such as Texas, that adhere to the minority rule requiring proof of special injury in malicious prosecution actions. 45 Fordham L.Rev. at 1057-1058. But, even this theory was rejected in Martin v. Trevino, supra, although certainly on different pleadings than are now before us in this case. Since that theory has not been alleged, we need not attempt to apply it to the pleading in this case.

The judgment of the trial court is affirmed.

      . Article 12, sec. 8, DR7-102, Tex.Rev.Civ.Stat. Ann. (Vernon 1973) provides:
      (A) In his representation of a client, a lawyer shall not:
      (1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.


author: FENDER, Chief Justice.

text:
    Larry G. BROADDUS, Appellant, v. FIRST STATE BANK OF BRYSON, Texas, Appellee.
    No. 2-84-029-CV.
    Court of Appeals of Texas, Fort Worth.
    Dec. 12, 1984.

      Winstead, McGuire, Sechrest & Minick, and Courtenay L. Bass, Dallas, for appellant.
    Montgomery Law Firm, and Elton M. Montgomery, Graham, for appellee.
    Before FENDER, C.J., and HUGHES and JORDAN, JJ.
   OPINION

FENDER, Chief Justice.

This is an appeal from a judgment in favor of the appellee (hereinafter Bank), the payee of a promissory note, and against appellant (hereinafter Broaddus), the maker. Broaddus raises various points of error having to do with the validity of the verdict and the conformity of the judgment thereto.

We affirm.

The underlying facts in this case are somewhat complicated and involve several different transactions spanning a period of about a year and a half. The first transaction concerned a promissory note in the sum of $4,749.08, signed by Broaddus on March 4, 1974 and made payable to the Bank. Charles Curtis, the then president of the Bank, (hereinafter Curtis) had arranged a meeting with Broaddus in order to get him interested in buying Maine-An-jou cattle at a sale in Fort Worth. The meeting occurred at a dance the night before the sale of the cattle. Broaddus testified that Curtis told him the cattle would be of a certain quality and that he (Curtis) would help him get started in the business. Broaddus also stated that Curtis had told him that financing for the cattle could be arranged through the Bank, and that the cattle to be purchased could stand as collateral for the loan. At the sale, which took place in Fort Worth, Broaddus bought four or five head of cattle from a third party for $4,150. Broaddus agreed to have Curtis take care of the cattle on Curtis’s ranch and to pay him for that service.

The signing of the March 4 note to finance this sale took place in Dallas. Terrel Taylor, Curtis’s brother-in-law, brought the note to Broaddus there for him to sign it, and then brought it back to Bryson, where the Bank is located. The funds advanced by the Bank in exchange for the note and the security interest in the cattle were never given directly to Broaddus; instead, the funds were paid directly to the seller of the cattle.

Joining Broaddus in the purchase of these cattle was Taylor. The two formed a company with Taylor acting as a go-between between Curtis (the cattle were kept at his ranch in Jacksboro) and Broaddus (who resided in Dallas). Later, a Dr. Coleman from Dallas joined the company.

The second note in question originated from the company’s purchase of 20 head of cattle directly from Curtis, in August, 1974. Although the company, consisting of Bro-addus, Taylor and Dr. Coleman, actually owned the cattle, the financing was done by the three men in their individual capacities, in order to obtain a greater amount of credit. This purchase was preceded by a meeting in. Curtis’s office at the Bank’s premises in Bryson. During the meeting Curtis made certain representations about the cattle which turned out to be untrue. Present at the meeting were appellant, Dr. Coleman, Taylor and Curtis. As in the first purchase, it was agreed that the cattle would be maintained by Curtis on his ranch.

After this meeting, Broaddus, on August 27, 1974, signed a note for $13,000 payable to the Bank. Three days later, on August 30, the loan proceeds were deposited directly into the account of Curtis. As in the case with the first note, the Bank took a security interest in the cattle which Broad-dus had purchased.

The note for $4,749.08 and the note for $13,000 were later consolidated into one note in March, 1975, by which time Curtis had sold his interest in the bank. At the time that the first note was signed (March, 1974), Curtis was the president, a director, chairman of the board and controlling stockholder of the Bank. He also had authority to review and approve loans. At the time of the second note of $13,000 (August, 1974), Curtis had essentially the same status and authority, except he was no longer president.

The record shows that Broaddus made several payments on his notes, going both to principal and interest. The last such payment was made September 29, 1975. Shortly thereafter a Wichita Falls bank foreclosed on all the cattle which Curtis had on his ranch. This bank, which had loaned money to Curtis in 1973 and 1974, was given a security interest in all the cattle. When Broaddus learned of this foreclosure he ceased making payments to the Bank on the consolidated promissory note. The Bank subsequently brought this suit.

Broaddus claimed in his defense that Curtis committed fraud in the sale of the cattle by misrepresenting the cattle quality. He further claimed that such fraud could be imputed to the Bank on one of two alternate theories: (1) Curtis as agent of the Bank; or (2) Curtis as sole representative of the Bank.

The Bank claimed these defenses were improper as a matter of law. It contended that any fraud by Curtis could not properly be imputed to it on either the agency or sole representative rationales.

The trial court permitted the submission of special issues bearing on these two theories. However, the record indicates that the trial court was not sure about their validity in this case, and that he wished to reserve a ruling on them even though he would submit them to the jury.

Twelve special issues were submitted to the jury. To the following five questions the jury gave the indicated unanimous answers:

1. Did Curtis misrepresent the quality of the cattle? Yes.
2. Was Curtis the Bank’s agent when he made such misrepresentations? No.
3a. Did Broaddus receive consideration (loan proceeds) for the first note it made? Yes.
4. The Bank’s attorney fees. $5,466.
5. Was Curtis the sole representative of the Bank in regards to Broaddus’s procurement of the first note? Yes.

To the following eight questions, the jury gave the indicated answers based on the votes of ten jurors; however, the jury foreman stated the answers were not based on the votes of the same ten jurors:

3b. Did the Bank advance consideration (loan proceeds) upon execution of the second note? No.
6. Was Curtis the sole representative of the Bank in regards to Broaddus’s procurement of the second note? Yes.
7. Did Curtis commit fraud in connection with Broaddus’s signing of the first note? Yes.
8. What amount of money will compensate Broaddus for Curtis’s fraud in #7? 0.
9. Did Curtis commit fraud in connection with Broaddus’s signing of the $13,000 note? Yes.
10. What amount of money will compensate Broaddus for the fraud in # 9? $4,119.
11. Did the Bank sue Broaddus with knowledge of Curtis’s fraud in connection with Broaddus’s signing of the $4,749 note? Yes.
12. What amount of money should be awarded to Broaddus as exemplary damages? $8,000.

About a year after this verdict the trial court rendered his judgment. It was based solely on those five answers to which there had been unanimous jury agreement. The other eight answers were disregarded.

The judgment was in favor of the Bank, and it ordered Broaddus to pay the principal amount on the two notes, accrued interest and attorney’s fees.

Broaddus’s eight points of error essentially raise two questions: (1) was it proper for the trial court to disregard the eight non-unanimous answers in rendering the judgment, and (2) assuming those answers were properly disregarded, do the five unanimous answers support the verdict?

There was no reversible error in the trial court’s decision to disregard the eight non-unanimous answers. These answers (except for 8b on consideration) were rendered immaterial by special issue 2 which found there was no agent-principal relation between Curtis and the Bank and by the trial court’s implicit rejection as a matter of law of the sole representative doctrine. Thus it became immaterial to the Bank’s cause of action whether Curtis had committed any fraud, and those non-unanimous answers (except for 3b) were properly disregarded. King v. Smith, 459 S.W.2d 202 (Tex.Civ.App.-Corpus Christi 1970); Teas v. Republic National Bank of Dallas, 460 S.W.2d 233 (Tex.Civ.App.-Dallas 1970, writ ref’d n.r.e.).

The second question raised by Broad-dus’s points of error is whether the judgment is in fact supported by the five answers considered, especially since in special issue 3b the jury found that Broaddus had not received consideration on the second note.

A review of the record indicates there is no evidence to support the jury’s finding in 3b, and thus it was proper for the trial court to disregard it as immaterial. Furthermore, it was proper for the trial court to find as a matter of law that there was consideration for the second note. Broaddus argued at trial that he received no consideration on the second note because the loan proceeds were never actually deposited in his account. Broaddus introduced into evidence a deposit slip which indicated that' a few days after he signed the second promissory note, the Bank transferred the funds into the account of Curtis, without such funds ever having been placed in Broaddus’s account.

It was not necessary that the loan proceeds be deposited in Broaddus’s account. In his charge to the jury, the trial court defined “consideration” as benefit conferred to Broaddus or detriment incurred by the Bank. Broaddus signed the second note to finance the purchase of cattle from Curtis. The Bank, by advancing the funds, incurred a detriment. Thus, special issue 3b was properly disregarded by the trial court.

We hold that the judgment was supported by the evidence in the record and the jury’s partial verdict.

Judgment is affirmed.


text:
    Louise Mayer TALIAFERRO and Randell Druce Bryant, Appellants, v. Robert Randell MAYER and Charles Howard Mayer, Appellees.
    No. 2-84-095-CV.
    Court of Appeals of Texas, Fort Worth.
    Dec. 12, 1984.

      John M. Anderson, Fort Worth, for appellants.
    Kenneth C. Curry, Fort Worth, for appel-lees.
    FENDER, C.J., and HUGHES and JORDAN, JJ.
   OPINION

FENDER, Chief Justice.

This is an appeal from a judgment construing a holographic Will. The trial court construed the Will to mean that testatrix intended that her grandson have a life estate in her home and contents, not a fee simple. Further, the trial court ruled that testatrix’s Ford automobile was not part of the bequest.

We affirm.

In her holographic Will testatrix requested that her three children serve as independent executors. After the Will was probated, two of testatrix’s children, Robert Randell Mayer and Charles Howard Mayer, petitioned the court for a construction of the Will. They claimed that paragraph 3 of the Will was vague and ambiguous. It read:

“Randell Druce Bryant my grandson shall have complete charge of my home at 357 James Lane Bedford Tex. this includes all the contents. His desires are the finale [sic] say so.”

Randell Druce Bryant and his mother, Louise Mayer Taliaferro (daughter of testatrix and also an independent co-executor), contended that the Will gave Randell a fee simple interest in testatrix’s home, its contents and her Ford automobile, which was customarily parked outside the home on the street.

In their first point of error appellants (Louise and Randell) claim that Robert Randell Mayer and Charles Howard Mayer only petitioned the court to construe the Will in their capacities as independent co-executors, and not as individuals. Appellants argue that the judgment of the trial court is therefore void because Robert and Charles are devisees under the Will and hence, should have been joined in their individual capacities under TEX.R.CIY.P. 39. Appellants also note that the petition to construe the Will was brought pursuant to TEX.REY.CIY.STAT.ANN. art. 2524-1, sec. 11 (Vernon 1965), the Uniform Declaratory Judgment Act, which provides that “all persons shall be made parties who have or claim any interest which would be affected by the declaration, ...”

We do not accept appellants’ premise here that Robert and Charles brought this petition to construe only in their capacities as independent co-executors and were not present in their individual capacities. The first line of the motion reads: “ROBERT RANDALL MAYER and CHARLES HOWARD MAYER, applicants, petition this Court ...” There is no indication in this introductory phrase that Robert and Charles are proceeding exclusively as independent co-executors. Moreover, although Count I of the motion to construe states that “Applicants, have duly qualified and are acting independent executors ... ”, this language also fails to suggest that Robert and Charles are proceeding exclusively in their capacities as independent co-executors. It simply notifies the court that they are independent executors. Appellants’ first point of error is overruled.

In their second, third and fourth points of error appellants urge that the trial court misconstrued paragraph 3 of the Will in holding that it created only a life estate, and not a fee simple, in Randell. They also contend that the trial court erred in finding that testatrix did not include her Ford automobile, which was kept on the street outside the house at 357 James Lane, as a bequest in fee simple to Randell.

We disagree with all of appellants’ contentions. To construe a Will, the intent of the testator, as expressed in the testamentary instrument, must be determined. Stewart v. Selder, 473 S.W.2d 3 (Tex.1971). The key phrase in paragraph 3 is that Randell “shall have complete charge” of testatrix’s home and its contents.. Whether testatrix created a fee simple or a life estate depends to a great extent on the meaning of this phrase. In construing this phrase, we are guided by the following directions from the Texas Supreme Court:

“While the Texas decisions are liberal in the construction of wills, and the courts of Texas go a long way in the relaxation of the rules of construction of wills to arrive at the manifest intention of the testator, especially when the will is written by a layman, courts are limited to the intent found within the will itself, and may not redraft the will.” Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 889 (1960). [Emphasis added.]

Webster’s Third New International Dictionary 377 (1981) defines “charge” as a “person or thing committed or entrusted to the care of another.” In the context of paragraph 3, therefore, the use of “charge” indicates that testatrix intended to place the house and its contents into the care of Randell. We acknowledge that testatrix expressed the intent that this care should be absolute. First, testatrix stated that Randell “shall have complete charge;” [emphasis added] and second, testatrix stated that Randell’s “desires are the final say so,” which implies that Randell has ultimate responsibility and authority for the care of the home and its contents. We do not find, however, that paragraph 3 creates a fee simple in Randell. First, we note the absence of any words of grant or devise in paragraph 3. In Huffman, supra, the Texas Supreme Court held that the language: “The Rotary Apts. Inc. stock belonging to me has been handed to Myrtle and Lyter for what I lost them in the oil deal,” Huffman, at 886, did not constitute a bequest. To a large extent the Court based its finding on the absence of words of grant or devise in the instrument. We find, therefore, that the absence of such words in paragraph 3 significantly weakens appellants’ claim that testatrix created a fee simple. Furthermore, testamentary language which only transfers the right, no matter how absolute, to care for property, must be distinguished from testamentary language which transfers the right to own property. See Lawrence v. Lawrence, 229 S.W.2d 219, 222 (Tex.Civ.App.-Fort Worth 1950, writ ref’d n.r.e.). Finally, it must be pointed out that while paragraph 3 transfers the right to care for the property to Randell, it does not empower him to dispose of the property. See C.C. Young Memorial Home for Aged Women v. Nelms, 223 S.W.2d 302, 304 (Tex.Civ.App.-Dallas 1949, writ ref'd n.r.e.).

Appellants argues that the trial court failed to apply properly the presumption that “An estate in land that is conveyed or devised is a fee simple unless the estate is limited by express words, or unless a lesser estate is conveyed or devised by construction or operation of law.” TEX.PROP. CODE ANN. sec. 5.001(a) (Vernon 1984). In response, we simply note that a trial court may properly find that the testatrix intended to create a lesser estate. Appellant also contend that the extrinsic evidence introduced at trial requires us to reverse the trial court. While the evidence showed that testatrix had a close relationship with Randell and that Randell lived with the testatrix for several years, this evidence does not conclusively show that testatrix intended to create a fee simple. There was no error in the trial court’s finding that testatrix conveyed only a life estate interest to Randell.

Finally, we find that the language of paragraph 3 fails to show that the testatrix intended to include the Ford automobile in the bequest. Paragraph 3 refers to testatrix’s home and its contents. It would be stretching the meaning of “contents” too far to say that it included an automobile parked on the street. All of appellants’ points of error are overruled.

The judgment below is affirmed.


author: HILL, Justice.

text:
    Morris Hershell LUMPKIN, Appellant, v. The STATE of Texas, State.
    Nos. 2-83-102-CR, 2-83-103-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 13, 1984.

      Kahn & Maierson, P.C. and Donald G. Martin, Houston, for appellant.
    Mac Smith, Dist. Atty., Weatherford, for State.
    Before ASHWORTH, BURDOCK and HILL, JJ.
   OPINION

HILL, Justice.

Morris Hershell Lumpkin was convicted of murdering Louis Preston Cripps and his wife, Imogene Cripps, and was sentenced to two consecutive life sentences in the Texas Department of Corrections.

He appeals his conviction, arguing that: (1) there was insufficient evidence to support the jury verdict; (2) his oral statement to a police officer should not have been admitted into evidence; (3) he should have been allowed to argue and charge the jury on the law of circumstantial evidence; (4) the prosecutor improperly implied that the defense did not “go by the rules”; and (5) the two life sentences should run concurrently, not consecutively.

We affirm the conviction.

Appellant’s first three grounds of error involve the sufficiency of the evidence.

In reviewing the sufficiency of the evidence in either a direct or circumstantial evidence case, we must view the evidence in the light most favorable to the jury’s verdict and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983, opinion on rehearing). A conviction cannot be sustained if the evidence leaves any reasonable doubt as to the guilt of the accused. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). Thus, it follows that a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the defendant. Johnson v. State, 673 S.W.2d 190, 195 (Tex.Crim.App.1984); Wilson, 654 S.W.2d at 471.

The evidence in this case can be summarized as follows:

(1) Appellant, a resident of Jolleyville, near Austin, had recently filed for bankruptcy, and was trying to sell his former home in Wichita Falls.

(2) One of appellant’s friends in Wichita Falls arranged for Cripps, a house painter, to paint appellant’s house and saw Cripps working on the house. After Cripps finished the job, he twice tried to contact appellant through the friend, on February 12th and 14th. On the 14th, the friend gave appellant’s unlisted phone number to Cripps.

(3) Appellant admitted to the police that he owed Cripps money, and that he spoke with Cripps on the phone on the 14th, and that he met Cripps and his wife later in the day on the 14th.

(4) Appellant also admitted that he was driving his blue and white Bronco on that day and that Cripps and his wife were driving their white pickup truck. The truck had a white tool box mounted in the back and personalized plates reading “Cripps”.

(5) Cripps and his wife were shot to death sometime between 5:30 and 7:30 p.m. on the 14th, according.to the medical examiner.

(6) Appellant was identified in court by two college students, who testified that appellant was sitting in a parked white pickup truck at 7:45 p.m. on a road next to Lake Weatherford, with an empty blue and white Bronco parked about 20 yards away. The interior light was on in the pickup. The two students also identified a photograph of appellant as a photograph of the man they saw that night. In the photograph, appellant has a beard and a receding hairline and is wearing glasses.

Three other college students also saw the Bronco and the pickup with a man inside, but were unable to identify appellant in court. One of the students said the man in the pickup had glasses and a receding hairline, one noticed a beard and glasses, and one could say only that the man in the pickup was white.

(7) At 8:15 p.m., a partially submerged white pickup truck was discovered in Lake Weatherford, just out from the spot where appellant had been seen one-half hour earlier. The Bronco was no longer at the scene.

(8) The bodies of Louis and Imogene Cripps were found in the pickup, mostly on the passenger side, on the seat and on the floor. Cripps’ wallet was missing and his trouser pockets were turned inside out.

(9) The front of the pickup had marks indicating that it had been towed. Appellant had had a tow bar in the Bronco on one previous occasion.

(10) Appellant, in his statement to the police, claimed that he agreed to meet Cripps in Stephenville at 2:30 p.m. but went on to Wichita Falls when Cripps did not show up on time. Appellant said he was in Wichita Falls at 5:30 or so, though he met no one he knew, and then by chance as he returned home towards Austin he met Cripps and his wife in Jacksboro at 7:30 p.m. He paid Cripps and saw them drive off toward Wichita Falls at 8:00 p.m.

(11) Between 3:00 and 5:00 p.m., someone with appellant’s name rented a storage unit in appellant’s name near appellant’s home in Jolleyville. •

From these facts, including the contradiction of appellant’s alibi, we find that the jury could find the essential elements of the crime.

Appellant, however, contends that there are facts which raise a reasonable hypothesis that he is not guilty.

(12) There was no physical evidence to connect appellant with the victims, their pickup or the place where the body was found. No fingerprints were found in the pickup and all soil and clothing samples were negative. Blood covered much of the front seat of the pickup, yet no blood was found on any of appellant’s clothes or in his Bronco. There was no evidence to show that appellant had a tow bar with him that day, and the only gun found among his belongings did not fire the fatal bullets.

(13) The police did not investigate anyone else except appellant.

(14) Three of the five college students were unable to identify appellant. Two of the five disagreed on shirt color and at least two on hair color.

(15) There was no direct evidence of the actual crime. No one heard any gunshots or saw the pickup being driven or towed to the lake area or into the lake.

(16) According to appellant, Cripps was carrying $1,600 in cash after being paid. The cash was not found on the bodies or in the pickup.

After considering all the evidence listed above, we find that any hypothesis other than appellant’s guilt is not reasonable. Any other hypothesis would have to include a bearded man with receding hairline and glasses, very similar or identical to appellant in appearance and driving a very similar or identical blue and white Bronco, who had a motive to murder Cripps and his wife, and who did murder them at a time when appellant had no credible alibi. We decline to find any such hypothesis reasonable. Our duty on appeal is not to rule out every imaginable hypothesis, but instead to insure that the evidence rules out every reasonable hypothesis except the guilt of the defendant. Wilburn v. State, 636 S.W.2d 771, 776 (Tex.App.-Corpus Christi 1982, no pet.).

We hold that there was sufficient evidence for the jury to find appellant guilty beyond a reasonable doubt, and we therefore overrule his grounds of error numbers one, two and three. See Stanley v. State, 664 S.W.2d 746 (Tex.App.-San Antonio 1983, pet. ref’d).

In his ground of error number four, appellant claims that the trial court erred in admitting into evidence a voluntary, oral statement he made to James Rutledge, an investigator for the District Attorney’s office. Appellant contacted the District Attorney’s office and set up the interview with Rutledge. Appellant arrived with an attorney and agreed to talk after he was given his Miranda warnings. His voluntary, oral statement was non-custodial and was therefore admissible under TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon 1979). Stone v. State, 583 S.W.2d 410 (Tex.Crim.App.1979). Since the appellant was not in custody at the time his oral statement was made, the restrictions that art. 38.22 places on the admissibility of oral statements made while in custody do not apply. Appellant’s statement was admissible. We overrule appellant’s ground of error number four.

By grounds of error numbers five and six, appellant urges us to follow the dissenting argument in Hankins v. State, 646 S.W.2d 191, 199 (Tex.Crim.App.1983, opinion on rehearing), and hold the trial court in error for refusing appellant's request for a separate jury charge on circumstantial evidence and for a chance to argue to the jury on the level of proof required in a circumstantial evidence case. We decline to follow the dissent in Hankins and agree with the majority of the Court of Criminal Appeals that a jury need only be properly instructed as to the State’s burden of proof, the presumption of innocence, and the requirement that an acquittal be entered if there exists a reasonable doubt as to the defendant’s guilt. The trial court did not err, and we overrule appellant’s ground of error numbers five and six.

In ground of error number seven, appellant complains of improper jury argument.

The defense counsel made the following statement during closing argument:

So I showed him a report, a copy of which was given to me by the District Attorney. He read that report to you, and it says, totally conclusive, that this gun did not fire the bullet submitted to the lab. No question about it. That gun was not in Weatherford. Okay. They got a weapon. Wasn’t the weapon that killed these folks so they didn’t want to mention that. No, we are not going to tell you anything about that. I had to bring it out. They said they searched Mr. Lumpkin’s house, got all kinds of clothes and boots and stuff, submitted them to the lab. Did they tell you about that? No, they didn’t tell you about that because what did come back made him read it in the record, no evidence of any soil samples that matched the sample of the scene of the crime. No evidence of any blood on any of the clothing.

As soon as the prosecutor opened his closing argument, he said, referring to defense counsel,

He starts talking about this Mac 10 machine gun that is down there and all of these clothes and boot. Hey, they— you didn’t tell this jury, Mr. Smith, you didn’t tell the jury one thing about that, not one thing. The clothes, this machine gun, or anything else. You tried to hide it; didn’t you? You didn’t tell them anything about it. Well, we can’t positively connect any of that back to the case, and the rules say if we can’t connect it up, we can’t even mention it. We are not trying to hide anything, but we have got to go by the rules. Thank goodness somebody has to go by the rules.

Defense counsel objected, and the jury was instructed to disregard the remark.

We find that the trial court’s instruction to the jury was sufficient to cure any error. Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App.1984). Appellant’s ground of error number seven is overruled.

In his last ground of error, appellant argues that the two life sentences should run concurrently, not consecutively. He claims that TEX.PENAL CODE ANN. see. 3.03 (Vernon 1974), which mandates concurrent sentences, should control over TEX. CODE CRIM.PROC.ANN. art. 42.08 (Vernon 1979), which leaves the decision to the discretion of the trial court.

Section 3.01 of the Penal Code limits the application of Chapter 3 of the Code to offenses encompassed by Title 7 of the Texas Penal Code, that is, Offenses Against Property. Smith v. State, 575 S.W.2d 41 (Tex.Crim.App.1979). If sec. 3.03 does not apply, then the trial court retains the right under art. 42.08 to cumu-late the sentences. Smith, 575 S.W.2d at 41. Appellant’s ground of error number eight is overruled.

We affirm the judgment.


text:
    William McKinley ELKINS, Appellant, v. The STATE of Texas, State.
    No. 2-84-017-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 13, 1984.
    Quillin, Thompson & Jones and Larry M. Thompson, Fort Worth, for appellant.
    Tim Curry, Crim. Dist. Atty., C. Chris Marshall, Darrell G. Adkerson, Dist. At-tys., Fort Worth, for the State.

      Before JORDAN, BURDOCK and HILL, JJ.
   OPINION

HILL, Justice.

William McKinley Elkins appeals his conviction by a jury for the offense of aggravated rape, with punishment assessed by the court at life imprisonment in the Texas Department of Corrections upon his plea of true to the enhancement paragraphs of the indictment. In his sole ground of error, he asserts that the evidence is insufficient to show that the rape was an aggravated rape.

We affirm, because we find that the evidence is sufficient to support the conviction.

In reviewing the sufficiency of the evidence to support a conviction based upon direct evidence, the evidence is viewed in the light most favorable to the verdict. See Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after so viewing the evidence, 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, 471 (Tex.Crim.App.1983).

The sufficiency of the evidence is a question of law. The issue on appeal is not whether we as a court believe the prosecution’s evidence or believe that the defense evidence “outweighs” the State’s evidence. If there is evidence which establishes guilt beyond a reasonable doubt, and if the trier of fact believes that evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.), cert. denied, - U.S. -, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984).

The indictment in this case alleged that Elkins did:

Then and there intentionally and knowingly by threats and force, and without her consent, have sexual intercourse with E_B_, a female who was not his wife, and in the course of said criminal episode the defendant, in the presence of E_B_, by acts, words and deeds threaten to cause serious bodily injury and death to be imminently inflicted on E_B_and the defendant by acts, words, and deeds placed E_B_in fear of serious bodily injury and death to be imminently inflicted on E_B-, ...

The court’s charge also instructed the jury that in order to find Elkins guilty of aggravated rape, they must find that he had sexual intercourse with E_ B_ and that in the course of said criminal episode the defendant intentionally and knowingly, in the presence of E-B_, by acts, words or deeds, threatened to cause serious bodily injury or death to be imminently inflicted on her and further, that the defendant did then and there intentionally and knowingly by acts, words or deeds place the said E_B-in fear of serious bodily injury or death to be imminently inflicted on her. Otherwise, the jury was instructed to find the defendant not guilty of aggravated rape.

The aggravated rape statute applicable to this April 1983 offense is TEX.PENAL CODE ANN. sec. 21.03, as amended by Act of May 25, 1981, ch. 202, sec. 1, 1981 Tex. Gen.Laws 471; since repealed by Act of June 19, 1983, ch. 977, sec. 12, 1983 Tex. Gen.Laws 5311, 5321. The statute provides in substance that one is guilty of aggravated rape if he commits rape, as defined in sec. 21.02 of the Penal Code, and, among other acts, places the victim in fear of death or serious bodily injury by his acts, words, or deeds, or, if, by acts, words, or deeds, occurring in the presence of the victim, he threatens to cause death or serious bodily injury.

It is not necessary to prove the existence of both threats of death or serious bodily injury and placing the victim in fear of death or serious bodily injury, and normally proof of either would be sufficient if the charge alleged alternative means of committing the offense of aggravated rape. However, the charge here instructed the jury that to find Elkins guilty of aggravated rape they must find the existence of both threats of death or serious bodily injury and the placing of the victim in fear of death or serious bodily injury. Under these circumstances, it was necessary to prove both of those elements of the offense of aggravated rape. See Ortega v. State, 668 S.W.2d 701 (Tex.Crim.App.1983).

Elkins, who rented a room in E_ B_’s home, returned at 9:00 p.m. on April 8, 1983. Finding the door locked, he knocked loudly on the door until E_ B_ came to unlatch the screen door and allowed him to enter. Upon entering the house, Elkins hit her on the head, knocked her to the floor, and then dragged her into her bedroom where he savagely and sadistically sexually attacked her. During the attack, which lasted for approximately three hours, he more or less alternated penetrating her vagina with his penis and inserting his hand into her vagina, causing her great physical pain and considerable vaginal bleeding. At one point in this ordeal, he put his arm around her throat and choked her until she momentarily blacked out. At another point in the attack, E_ B_ grabbed a gun which she kept beside her bed, and when Elkins took it from her, the gun discharged. She testified that Elkins never threatened her with the gun nor indicated he would use it on her, and she at no time testified that he made any verbal threats of any kind to her.

Elkins left E_ B_’s home about 12:00 a.m. on April 9, 1983, taking her car keys with him. After that E_ B_went to a friend’s house for several hours, and eventually, about 4:00 a.m., went to John Peter Smith Hospital in Fort Worth for examination. There she was examined by a physician on the staff of the hospital, who found no signs of trauma about her head or body, and no blood or flesh under the fingernails. There were bruises on the inner aspects of her thighs, and two lacerations, one on each side of the lips of the vagina. There were also three smaller tears at the opening of the vagina. The doctor testified that this area is highly vascular and that tears of the vaginal mucosa and labia tend to bleed profusely.

There is no question that the State sufficiently proved beyond a reasonable doubt that Elkins placed E_B_in fear of serious bodily injury. Appellant admits that in his brief, but insists that there is no evidence at all of threats by Elkins either by acts, words, or deeds, of serious bodily injury or death.

We find that the evidence that El-kins choked the complainant until she blacked out and also caused her to bleed profusely is sufficient to show that by acts or deeds, he threatened to cause serious bodily injury or death to be imminently inflicted on her.

Elkins relies on the cases of Blount v. State, 542 S.W.2d 164 (Tex.Crim.App.1976); Rucker v. State, 599 S.W.2d 581 (Tex.Crim.App.1979); and Taylor v. State, 637 S.W.2d 929 (Tex.Crim.App.1982). All of these authorities are distinguishable from the case at bar. Although Elkins asserts that the facts in Blount are similar to those in the case at bar, in Blount the prosecutrix suffered only a bruise. There was no evidence of profuse bleeding or choking to the point of unconsciousness such as we have in this case.

Rucker involved bleeding, but it was a nose bleed, and the case did not also involve choking to unconsciousness. In that case, the Court of Criminal Appeals, relying on its prior decision of Rogers v. State, 575 S.W.2d 555 (Tex.Crim.App.1979), held that absent an express, verbal threat, the evidence is sufficient to prove an implied threat of death or serious bodily injury only when a gun or knife was used, or serious bodily injury was in fact inflicted, or both. If Rucker were still in effect, a reversal of this case would be required. The holding in Rucker conflicted with the earlier Court of Criminal Appeals panel opinion of Seaton v. State, 564 S.W.2d 721 (Tex.Crim.App.1978), which held that threats may be communicated by acts, words, or deeds. At the time of Rucker, sec. 21.03 of the Texas Penal Code provided that a rape was aggravated if the person committing the rape “compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.” TEX.PENAL CODE ANN. sec. 21.03 (Vernon 1974). After the decision in Rucker, the legislature amended the Penal Code to provide that a rape is aggravated if the person committing the rape “by acts, words, or deeds occurring in the presence of the victim, threatens to cause death, serious bodily injury, or kidnapping to be inflicted on anyone, ...” Act of May 25, 1981, ch. 202, sec. 1, 1981 Tex.Gen.Laws 471. Although sec. 21.03 has been repealed, this is basically the requirement for aggravated sexual assault provided in see. 22.021 of the present Code. It has been held, and we agree, that the legislature, by adopting the “acts, words, or deeds” language of Seaton, intended to overrule Rucker and show its approval of the holding in Seaton. Bank v. State, 662 S.W.2d 627 (Tex.App.-Houston [14th Dist.] 1983, pet ref'd); Seek v. State, 646 S.W.2d 557 (Tex.App.-Houston [1st Dist.] 1982, no pet.). Therefore, Rucker is not applicable to the case at bar since this case is controlled by the statute as amended. We also note that the Blount case also rose under the prior statute.

In Taylor, the State was required to prove under the court’s charge that the defendant threatened the victim with imminent bodily injury by using or exhibiting a handgun. The facts showed that the complaining witness was not actually aware that the defendant or his partner in the robbery had a handgun. She had seen the outline of a gun in the partner’s pocket, but he was in another part of the store at the time that she was threatened by the defendant. This case is not relevant to the case at bar because in this case the State was not required to prove the use of a weapon.

We overrule Elkins’ sole ground of error.

The judgment of conviction is affirmed.


text:
    Leon Deryl PINKSTON, Appellant, v. The STATE of Texas, State.
    No. 2-83-223-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 13, 1984.

      Hartley, Eakman, Bodenhamer & Tanner, and James R. Tanner and Glen E. Eakman, Fort Worth, for appellant.
    Mac Smith, Dist. Atty., and Dan Carney, Asst. Dist. Atty., Weatherford, for the State.
    FENDER, C.J., and ASHWORTH and BURDOCK, JJ.
   OPINION

FENDER, Chief Justice.

Leon Deryl Pinkston, appellant, was convicted by a jury of the offense of unlawful manufacture of a controlled substance, to wit: amphetamine in an amount greater than 400 grams. Appellant elected to have the court assess punishment. Pursuant to the trial court’s finding that appellant had two prior felony convictions as alleged in the enhancement paragraphs of the indictment, the court assessed punishment at life imprisonment.

We affirm.

On appeal, appellant raises nine grounds of error in which he contends that (1) evidence of extraneous offenses were improperly admitted at trial; (2) the search warrant and consequent search are invalid; (3) the evidence is insufficient to support the conviction; (4) numerous weapons seized in the search were improperly displayed before the jury; (5) the enhancement paragraphs were not properly proved up, and (6) the Controlled Substances Act, as amended, is unconstitutional. Because appellant challenges the sufficiency of the evidence, a rendition of the facts is necessary.

In November of 1982 an on-going investigation into the illegal manufacture of amphetamine by appellant focused on Parker County, Texas. This investigation was conducted by Sgt. Tom Martin of the Lubbock Police Department assigned to the United States Department of Justice Drug Enforcement Administration Narcotics Task Force in cooperation with investigators and officers of various federal, state, and local law enforcement agencies.

Sgt. Martin and other law enforcement officers arrived in Parker County from Lubbock on December 3, 1982 and established surveillance on appellant’s residence, a ranch comprised of approximately 52 heavily wooded acres, located near Millsap. At 7:25 a.m. on the morning of December 5, 1982, a search warrant was executed at the residence with three main areas targeted: a house, a barn, and a mobile home.

The enforcement officers executing the search warrant were divided into three search teams, one team for each building. The barn was located approximately 100 yards from the house and the trailer was located approximately 100 yards from the barn, and approximately 200 yards from the house.

An operating amphetamine laboratory was found in the mobile home along with various beakers, flasks, a large freezer-size bag of amphetamine white powder, numerous bottles and cans of chemicals and various items of laboratory equipment. Arrested in the trailer were Erman Nathan Bullard and a sixteen year old female. Personal items of Bullard and the young female were also found in the trailer.

The appellant, and his wife, Lori Wisdom Pinkston, were arrested in the bedroom of the house where they were asleep. Seven other people were arrested in living room area of the house. Among the items seized in the search of the house were numerous plastic bags containing amphetamine, two plastic bags containing marihuana, four syringes containing a clear liquid, a military amunition box and thirty-seven guns. At the time of his arrest, appellant was in possession of several handwritten notes which included a recipe for making amphetamine, some phone numbers including that of a chemical laboratory supply company in Dallas and the address of a chemical laboratory supply company in Houston.

In his third ground, appellant contends that the evidence is insufficient to connect him to the illegal laboratory because the evidence established that Lori Wisdom Pinkston, not appellant, holds legal title to the property on which the search was conducted and on which appellant was arrested; and because the evidence failed to show appellant knew of the existence of the illegal laboratory on the property. We find no merit to appellant’s argument.

In reviewing the sufficiency of the evidence in either a direct or circumstantial evidence case, we must view the evidence in the light most favorable to the jury’s verdict and consider whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984); Houston v. State, 663, S.W.2d 455, 456 (Tex.Crim.App.1984).

We have carefully reviewed the evidence and find it sufficient to connect appellant to the illegal manufacture of the controlled substance. The evidence clearly establishes the existence of laboratory apparatus on appellant’s property which was in the process of manufacturing amphetamine. It is irrelevant that legal title to the property is in the name of Lori Wisdom Pinkston, appellant’s wife. The evidence establishes that appellant resides on the property with his wife as evidenced by the following facts: (1) appellant, himself, at the time of his arrest, referred to the ranch as his place; (2) appellant’s personal papers were found in the desk in the living area; (3)a picture of appellant and his wife was displayed in the den; (4) appellant was found in the bedroom in bed with his wife at the time of the search, and (5) numerous references were made throughout the trial to the ranch as being Pinkston’s place without objection. Moreover, the following facts tend to show that appellant was involved in the illegal manufacture of the controlled substance: (1) the illegal laboratory was operating on appellant’s property less than 200 yards from his residence; (2) large quantities of amphetamine were found inside appellant’s residence; i.e. a locked military ammunition box found behind the desk contained numerous bags of amphetamine and when opened emitted a strong ether smell, an Igloo ice chest found in the living area contained nine clear plastic bags of amphetamine; a clear plastic bag of amphetamine was found in the upper left hand drawer of appellant’s desk; and (3) appellant had on his person in his wallet at the time of his arrest handwritten notes which included, inter alia, a chemical formula for manufacturing amphetamine and the addresses of two chemical laboratory supply companies.

We find the circumstantial evidence sufficient to support a conviction for manufacturing amphetamine. Appellant’s third ground is overruled.

In his first ground, appellant contends that the trial court erred in overruling his motion for mistrial following the improper admission of evidence of extraneous offenses. Specifically, appellant complains of certain testimony of Tom Martin, a police officer employed by the City of Lubbock, Texas, who, at the time of trial, had been assigned to the United States Department of Justice Drug Enforcement Administration Narcotics Task Force in Lubbock for approximately four years. He testified that in January of 1982 he became involved in an extensive investigation into appellant’s activities and that federal, state and local law enforcement agencies were involved in the extensive investigation. The State’s attorney attempted to elicit testimony in regard to the extensiveness of the investigation. Appellant complains of the following:

BY MR. MAC SMITH:
Q. Prior to moving into Parker County, Texas where was the investigation taking place?
A. In Lubbock, Texas
Q. Prior to that, where was the investigation taking place:
MR. EAKMAN: Your honor, we’re going to object to this investigation taking place somewhere else unless it’s connected up with Leon Pinkston in Parker County.
THE COURT: Couch your question—
MR. EAKMAN: Completely outside what we’re trying here.
THE COURT: Just couch your questions in the terms of the investigation of Leon Pinkston.
MR. MAC SMITH: Okay, Your Honor, thank you.
BY MR. MAC SMITH:
Q. That’s what I was referring to, but let me state it very specifically. Involving the investigation of Leon Pink-ston for illegally manufacturing drugs, before it focused on Millsap, Parker County, Texas, where did the investigation involving Leon Pinkston focus in on:
A. Focused in a — in Fort Worth and Tarrant County, Texas.
Q. Okay. Before that, where did the investigation involving Leon Pinkston and his illegal drug activities — where did that investigation focus in before that?
A. In Paris, Texas.
Q. Before that, where did it focus in on Leon Pinkston concerning his illegal drug activities?
A. I’m not aware of where before—
MR. EAKMAN: Your Honor, we’re going to object to him saying an investigation. He’s trying to give an implication to the jury that they’ve got some kind of case in these other counties which he knows good and well he’s in bad faith. He hasn’t filed one of these cases.
THE COURT: Sustain the objection.
MR. EAKMAN: We’ll ask the Court to instruct the jury not to consider it whatsoever. It’s an extraneous offense.
THE COURT: Jury is so instructed.
MR. EAKMAN: Ask the Court for a mistrial.
THE COURT: Denied.

It is well settled that an accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime or for being a criminal generally. Smith v. State, 646 S.W.2d 452, 455 (Tex.Crim.App.1983). Accordingly, it has been held that proof of prior specific acts of misconduct, similar happenings or extraneous offenses committed by the accused is not probative of the contested material issues in the case and is inadmissible. Elkins v. State, 647 S.W.2d 663, 665 (Tex.Crim.App.1983); Davis v. State, 645 S.W.2d 288, 293 (Tex.Crim.App.1983). However, just as is the case in many instances, this general rule is subject to exception, and evidence of extraneous offenses committed by the defendant is admissible as res gestae or to prove identity, intent or knowledge, state of mind, motive, scheme or plan, or to refute a defensive theory. Mallicote v. State, 548 S.W.2d 42, 43 (Tex.Crim.App.1977); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App.1972); Grayson v. State, 481 S.W.2d 859, 862 (Tex.Crim.App.1972). Also, extraneous offenses may become admissible upon a showing that the transaction is relevant to a material issue in the case, and the probative value of the evidence outweighs its inflammatory or prejudicial potential. See Rubio v. State, 607 S.W.2d 498, 506 (Tex.Crim.App.1980) (emphasis in original). When the offense is one continuous transaction, proof of all the facts relating to the transaction is proper as part of the circumstances attending the offense. Hoffert v. State, 623 S.W.2d 141, 144 (Tex.Crim.App.1981).

It is apparent in the present case that the State was attempting to show the broad scope of the investigation without reference to any specific acts of misconduct or criminal activity. Appellant himself makes reference to possible cases against appellant in other counties in his objection. We do not find that the testimony elicited evidence of extraneous offenses. Moreover, under the circumstances of this case, we hold the testimony was not clearly calculated to inflame the minds of the jury and error, if any, was cured by the instruction to disregard. Carter v. State, 614 S.W.2d 821, 825 (Tex.Crim.App.1981); Thompson v. State, 612 S.W.2d 925, 928 (Tex.Crim.App.1981). There was no error in denying appellant’s motion for mistrial. Appellant’s first ground is overruled.

In his second ground of error, appellant contends that the trial court erred in overruling his motion for mistrial based on an improper question by the State implying the commission of an extraneous offense which occurred immediately after the overruling of the motion for mistrial complained of in his first ground of error. The record reflects the following:

BY MR. MAC SMITH:
Q. Isn’t Leon Pinkston currently under indictment in Lubbock County, Texas? He has—
MR. EAKMAN: Your Honor, we’re going to object to his as totally an improper question. There’s no conviction for felony or misdemeanor crime or moral turpitude and we would ask the Court at this time to declare a mistrial.
MR. CARNEY: Mr. Eakman’s previous statement has clearly inferred to the jury that there hadn’t been any other cases filed.
THE COURT: I will sustain his objection and instruct the jury to disregard the last question—
MR. EAKMAN: We will ask the Court for a mistrial.
THE COURT: Denied.

Evidence of appellant’s indictment was clearly inadmissible under Albrecht v. State, supra, and its progeny; however, we hold the error was cured by the trial court’s instruction to the jury to disregard the testimony. Further, the question was invited by the defense attorney’s unnecessary referral to cases against appellant in other counties. Appellant’s second ground is overruled.

In his fourth ground of error, appellant contends that the search warrant and subsequent search were invalid because the affidavit underlying the search warrant fails to state sufficient probable cause to support issuance of the warrant. We do not agree.

It is well settled law in Texas that no search warrant may issue unless a sworn affidavit which sets forth sufficient facts to establish probable cause for issuance of the warrant is filed and presented to a magistrate. TEX.CODE CRIM. PROC.ANN., art. 18.01 (Vernon Supp. 1984). This procedure is mandated by the Fourth Amendment to the United States Constitution as made applicable to the States through the Fourteenth Amendment and by Article 1, Section 9 of the Texas Constitution. See e.g. Aguilar v. State, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Brown v. State, 617 S.W.2d 196 (Tex.Crim.App.1981), Tex. v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), 657 S.W.2d 797 (Tex.Crim.App. 1983). Further, no evidence obtained in violation of these foregoing provisions may be admitted in evidence against the accused on the trial of any criminal case. TEX. CODE CRIM.PROC.ANN., art. 38.23 (Vernon 1974).

An affidavit in support of either a search or arrest warrant must provide the magistrate with sufficient information to support an independent judgment that probable cause exists for the warrant. Jones v. State, 568 S.W.2d 847 (Tex.Crim.App.1978), cert. denied, 439 U.S. 959, 99 S.Ct. 363, 58 L.Ed.2d 352 (1978). The facts stated in the affidavit must go beyond a mere suspicion on the part of the affiant. Ruiz v. State, 457 S.W.2d 894 (Tex.Crim.App.1970). Further, a search can never be justified by what it produces. See, e.g. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

It is also well established that the facts on which the affiant’s belief is based need not be within his personal knowledge. Hence, the affidavit need not reflect the personal observations of the af-fiant, but may be based on hearsay information. Jones v. State, supra at 854. Observations reported to the affiant by other officers engaged in the investigation can constitute a reliable basis for issuing a warrant. Gish v. State, 606 S.W.2d 883, 886 (Tex.Crim.App.1980).

Probable cause exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the property that is the object of the search probably is on the person or premises to be searched at the time the warrant issues. Gish v. State, supra at 886; Lopez v. State, 535 S.W.2d 643 (Tex.Crim.App.1976). A magistrate may make reasonable inferences from the facts set forth in the affidavit. Gish v. State, supra.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court criticized the strict application of the Aguilar-Spinelli “two-pronged” test for determining whether probable cause exists for issuance of a search warrant and adopted the “totality of the circumstances” approach. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Under the “two pronged” test an affidavit based on hearsay alone to pass constitutional muster had to inform the magistrate (1) of the underlying circumstances from which the informant drew his conclusion and (2) of the underlying circumstances from which the affiant concluded that the informant was “credible” or his information “reliable”. The United States Supreme Court in adopting the “totality of the circumstances approach” did not totally reject the “two pronged” test but emphasized that the elements under the “two pronged” test concerning the informant’s “veracity”, “reliability”, and “basis of knowledge” are highly relevant factors in determining the value of an informant’s report, but they “should not be understood as entirely separate and independent requirements to be rigidly exacted in every case.” Illinois v. Gates, supra 103 S.Ct. 2327. The Court went on to rule:

“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.... We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.’’ (103 S.Ct. at 2332).

We will determine the validity of the search warrant in the instant case according to the “totality of the circumstances” analysis of Illinois v. Gates, supra. See Hennessy v. State, 660 S.W.2d 87 (Tex.Civ.App.1983).

In the instant case, the affidavit in question is comprised of a three and one-half page affidavit executed by Officer Randall and expressly incorporates a previous sixty-page affidavit referred to as Exhibit A-l sworn out by Officer Randall to secure a wire intercept just two weeks prior. Appellant attacks the three and one-half page affidavit in support of the search warrant but fails to address the sixty-page affidavit expressly incorporated into the three and one-half page affidavit. We will consider both affidavits to determine whether probable cause existed for the issuance of the search warrant. However, because of the voluminous facts set forth, we will not attempt to do more than highlight generally what the affidavit includes.

In the affidavit utilized to secure execution of the wire intercept, the affiant states his fifteen-year experience as a peace officer, five years of same being as a Narcotics Investigator with the Texas Department of Public Safety Narcotics Service, noting his numerous controlled substance investigative experiences and explaining his training and background. Affiant Randall stated his role in an investigation spanning four months to that point in time and involving three areas of the state, including the Tar-rant County, Texas area. Based upon his investigation and with the cooperation of the Texas Department of Public Safety Narcotics Service, the United States Drug Enforcement Administration, the Lubbock Police Department, the Odessa Police Department, and other police agencies, he had identified the defendant as a prominent member of a drug trafficking organization.

The affiant expressly named eleven specific law enforcement agencies he had consulted with in order to compile the information to his affidavit as well as specifically named officers within these agencies. Of particular note is an interview conducted by FBI Agent James Beck with Pete Ford on April 17, 1982 wherein Ford made declarations against penal interest naming co-defendant Ernest Dean Kelley as his drug supplier and stating that he had been in Kelley’s residence and observed large quantities of illicit drugs. Ford further related Kelley’s chemist was a man known as “Leon” and described four known laboratories operated by Kelley. Ford had on his person at the time of his arrest telephone numbers of named members of this narcotics organization including Ernest Dean Kelley and Denise Arnold. Agent Beck advised that Ford had since supplied narcotics information found to be true.

Affiant Randall also interviewed a proven informant on August 25, 1982, who detailed Ernest Dean Kelley’s drug operation in the Cheyenne Social Club.

Affiant Randall had interviewed Texas Ranger Charles Bruñe on September 14, 1982 who released an abandoned P2P laboratory to affiant and his associate Sgt. Tom Martin. Inspection of the glassware revealed its point of origin as Metroplex Chemical, Dallas, Texas. On October 19, 1982 Sgt. Martin interviewed Don Fernandez, Manager of Metroplex, who identified a photograph of appellant as being a purchaser of large amounts of chemicals, glassware, and equipment on numerous occasions. On November 18,1982, records at Metroplex revealed appellant’s purchase of chemicals confirmed by DPS Chemist Bill Ginn to be the type used to manufacture amphetamine. »

Affiant Randall personally interviewed Andrews, Texas police officer Tom Finley on October 18,1982 and learned that Finley had arrested Ernest Dean Kelley two days prior for possession of amphetamine. Kelley had three pistols in his possession and $8,000 in cash in a plastic bag as well as telephone numbers for Leon Pinkston, Lori Pinkston, and other known narcotics dealers.

Affiant Randall personally interviewed Lubbock Detective Joe Hargrave on November 9, 1982 who related facts surrounding a December 31, 1981 search warrant execution on a Lubbock motel room. That raid netted 182 grams of amphetamine in the possession of Leon Pinkston and another man.

Affiant Randall received information through a court ordered pen register on November 19, 1982 that the Millsap residence of Pinkston had been telephoned from Ernest Dean Kelley’s residence in Lubbock. Affiant further obtained information from Sgt. Tom Martin that the Mill-sap residence of Pinkston is in a heavily wooded and sparsely populated area that cannot be seen from the roadway. Affiant states that based on his experience and of those he had consulted with that drug laboratories are often set up in such secluded areas.

Affiant set forth numerous other underlying circumstances to show that the co-conspirators were involved in an established long term pattern of criminal activity involving the manufacture and distribution of amphetamine and/or methamphetamine which in the interest of brevity we will not set out. Further, affiant summarized the roles and criminal histories of each of the named co-conspirators.

In the three and one-half page affidavit, affiant outlined a five month investigation of a narcotics conspiracy and recited affi-ant’s personal involvment and familiarity with the circumstances set forth. The facts related include the following: (1) numerous telephone conversations were intercepted in which Ernest Kelley and Denise Arnold, known drug dealers, indicated that they did not have any amphetamine or methamphetamine and would be leaving soon to pick up a quantity. (2) On December 2, 1982, a call was monitored between Ernest Kelley and an individual believed to be Marlin Sasser (but who subsequently proved to be Pete Ford) that Kelley would be traveling to the laboratory when advised to do so by Leon Pinkston. During the same conversation, Ford advised Kelley of a recent drug lab raid in Cleburne, Texas and Kelley, expressing concern that it might be their lab, stated he would call the laboratory before he left. (3) On the same day, Kelley, Don Howell and Dale Lee Parker, two known drug dealers, left Kelley’s Lubbock, Texas, residence in separate vehicles and were followed to the Holiday Inn in Mineral Wells, Texas. (4) On December 3, 1982, surveillance units followed Ernest Kelley over a circuitous route to the same hotel and observed him meet with Howell and Parker. (5) Kelley and Parker drove to the lab site (Pinkston’s property) and surveillance units observed all three traveling to and from the lab site since their arrival in Mineral Wells. (6) On December 3,1982, surveillance units observed appellant leave the laboratory site and travel toward Dallas. Dallas Drug Enforcement Agents located appellant at Metroplex Chemical Company in Dallas. After appellant left, they learned that he had purchased two five-gallon cans of ether and assorted glassware both of which are commonly used in the manufacture of amphetamine. Appellant was observed returning to the laboratory site shortly after his purchase.

Keeping in mind that “the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants,” Ventresca v. United States, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965); Hennessy v. State, supra at 92, we hold that the magistrate had a substantial basis for concluding that probable cause existed for the search based on the “totality of the circumstances” presented in the affidavit. Appellant’s fourth ground is overruled.

In his fifth ground of error, appellant contends that the trial court erred in overruling his motion for mistrial based on the improper display before the jury of the thirty-seven guns seized during the search of appellant’s premises. The record reflects that law enforcement officers found and seized thirty-seven weapons during the search conducted on appellant’s premises. All these weapons were displayed to the jury and the state offered them in evidence. The trial court sustained appellant’s objection to the admission of the weapons and instructed the jury to disregard their display, but denied appellant’s motion for mistrial. Appellant contends on appeal that the display of the weapons was so prejudicial that it prevented his receiving a fair and impartial trial. The State argues that the weapons seized at the time and place of the offense and arrest were admissible as res gestae.

The facts and circumstances surrounding the commission of an offense are admissible to prove the guilt of the accused. Jackson v. State, 575 S.W.2d 567, 570 (Tex.Crim.App.1979). Questions concerning the admission of evidence lie within the discretion of the trial judge. Jackson v. State, supra. Further, as stated by the Court of Criminal Appeals in Arnott v. State, 498 S.W.2d 166, 178 (Tex.Crim.App.1973) (on Motion for Rehearing):

“[ejvidence of tangible objects found during the course of a search is often admitted as ‘res gestae’ as is evidence of various, seemingly irrelevant details of a transaction. This is permitted, even though the relevance of the evidence may not be readily apparent, because the law recognized that transactions do not occur in a vacuum. By being informed of all the circumstances surrounding a particular transaction, the trier of fact is enabled to put the witness’s testimony in its proper perspective, and to form a basis for judging the credibility of the witness. Some transactions are such that the ‘bare bones’ of the occurrence might seem quite plausible, but when related in context seem very unlikely to have actually occurred (or vice versa). Therefore, such evidence is usually admitted even though its relevance is not shown, or, even if irrelevant, unless it is unduly prejudicial. McCormick & Ray, supra, sec. 911.”

In the instant case, the record reflects that the guns lay on the courtroom floor while the state elicited testimony, without objection, as to the circumstances of their seizure; however, the guns were not visible to the jury unless they were standing. It was only when the State offered the guns in evidence that appellant objected on the ground that they were not material to the case on trial. Such objection came too late to avoid prejudicial effect, if any, before the formal offer. To preserve error, an objection must be made at the first opportunity Marini v. State, 593 S.W.2d 709, 714 (Tex.Crim.App.1980). Crocker v. State, 573 S.W.2d 190, 205 (Tex.Crim.App.1978).

However, even had error been properly preserved, we note that the trial judge on more than one occasion instructed the jurors not to consider the guns for any purpose until they were admitted in evidence. At appellant’s request, the trial court had the guns removed from the courtroom early in the trial and again instructed the jurors to disregard them. Generally, an instruction to disregard will cure error, except where the evidence is clearly calculated to inflame the minds of the jurors and is of such character as to suggest the impossibility of withdrawing the impression produced in the juror’s minds. Carter v. State, 614 S.W.2d 821, 825 (Tex.Crim.App.1981); Thompson v. State, 612 S.W.2d 925, 928 (Tex.Crim.App.1981).

We do not find the evidence to be so prejudicial and conclude that error, if any, in the display of the guns before the jury was not reversible error. The guns, although part of the res gestae of the offense and of the arrest, were not admitted in evidence and the jury was instructed not to consider them for any purpose. Further, the evidence proving the offense of unlawful manufacture of amphetamine is overwhelming. Appellant’s fifth ground is overruled.

In his sixth ground, appellant contends that a fatal variance between Enhancement Count One of the indictment and the proof of that enhancement paragraph rendered the evidence insufficient to support the trial court’s finding of “true”. Enhancement Count One of the indictment alleged a prior felony conviction in Cause No. 85497 in Criminal District Court No. 3 of Tarrant County, Texas, for theft of property valued at $50.00 or more and that such conviction became final on December 7, 1973. The proof introduced at trial reflects that appellant was sentenced in that case on August 14, 1972, and that an appeal was taken to the Court of Criminal Appeals. The Court of Criminal Appeals affirmed the judgment of the trial court on December 5, 1973, not on December 7 as alleged in the enhancement paragraph of the indictment. Appellant contends this variance between the allegation in the enhancement paragraph and the proof is material and fatal because it clearly misled appellant to his prejudice. However, appellant fails to show how he was so prejudiced.

In alleging a prior conviction to enhance punishment, a variance between an allegation of the indictment and proof is a material and fatal variance only if it would mislead a defendant to his prejudice. Hall v. State, 619 S.W.2d 156, 157 (Tex.Crim.App.1980) (opinion on State’s motion for rehearing). The record before us reflects that the correct county court and cause number were alleged and proved. Further, there is no showing that appellant was surprised or misled. We conclude the variance between the indictment and proof was not fatal and overrule appellant’s sixth ground.

Appellant contends in a seventh ground that the evidence is insufficient to prove the prior felony conviction alleged in Enhancement Count Two, Paragraph One, of the indictment. The record reflects that the State alleged in Enhancement Count Two, Paragraph One, of the indictment that appellant was convicted on September 8, 1970 in Cause No. 78105 in Criminal District Court No. 2 of Tarrant County, Texas for the offense of assault with intent to commit murder without malice. At the punishment phase of the trial, the State offered Exhibit No. 63 which was comprised of certified copies of the indictment, judgment and sentence in Cause No. 78105. The court excluded State’s Exhibit No. 63 because of a variance in the documents regarding the date of the offense. Appellant contends on appeal that the evidence is insufficient to support the trial court’s finding of “true” to Enhancement Count Two, Paragraph One, because no copy of the indictment in Cause No. 78105 was introduced in evidence. We find no merit to appellant’s contention.

While the indictment of a prior conviction is admissible at the punishment phase of the trial, Knox v. State, 487 S.W.2d 322, 326 (Tex.Crim.App.1972), it is not required to be introduced in evidence in order for the evidence of the prior conviction to be sufficient. See Mullican v. State, 322 S.W.2d 284 (Tex.Crim.App.1959). In the instant case, State’s Exhibit No. 61, a pen packet referring to both Cause No. 78105 and Cause No. 79972 and admitted in evidence, reflects that on September 8, 1970, appellant was convicted in Cause No. 78105 of the offense of assault with intent to commit murder without malice and sentenced to two years in the Texas Department of Corrections. We conclude that the evidence is sufficient to prove the prior conviction alleged in Enhancement Count Two, Paragraph One, of the indictment. Appellant’s seventh ground is overruled.

In his eighth ground, appellant contends that the prior felony conviction alleged in Enhancement Count Two, Paragraph Two, of the indictment is void and thus cannot be used to enhance punishment because on September 8, 1970, the date of judgment and sentence there was no such offense. We find no merit to appellant’s contention.

To enhance appellant’s punishment in this case the indictment alleges in Enhancement Count Two, Paragraph Two that appellant was convicted in Cause No. 79972 in the Criminal District Court No. 2 of Tar-rant County, Texas, on September 8, 1970, for the offense of unlawfully carrying a pistol on a premises under the provisions of the Texas Liquor Control Act. Appellant contends that the 1970 conviction for unlawfully carrying a pistol on a premises under the provisions of Texas Liquor Control Act as shown in State’s Exhibit No. 61 is void because Article 483 of the former Penal Code prohibited carrying a handgun on any premises licensed or issued a permit by this State for the sale or service of alcoholic beverages. Article 483 of the former Penal Code read in part as follows:

(a) any person who shall carry on or about his person ... any pistol ... shall be punished by a fine of not less than One Hundred Dollars ($100) nor more than Five Hundred Dollars ($500) or by confinement in jail for not less than one (1) month nor more than one (1) year, except that if the offense is committed by a person while in any premises covered by a permit or license issued under the provisions of the Texas Liquor Control Act ... he is guilty of a felony.

Appellant apparently contends that the judgment is not sufficiently specific to describe the offense. Any question as to the offenses of which appellant was convicted is clarified by examination of the indictment in Cause No. 79972, which is included in the record, wherein the premises are specified by address and are expressly alleged to be “covered by a permit and license under the provisions of the Texas Liquor Control Act” thus tracking the language of Article 483 as set out above. The indictment may be considered in construing the judgment and sentence in order to determine the offense for which the accused is convicted. Hughes v. State, 493 S.W.2d 166, 170 (Tex.Crim.App.1973).

Moreover, since two other prior felony convictions were alleged and proved for enhancement of punishment, any invalidity as to this conviction would not affect the punishment. We find no reversible error and overrule appellant’s eighth ground of error.

In a ninth ground, appellant contends that the conviction is invalid because the Texas Controlled Substances Act, as amended in 1981 is unconstitutional. The Court of Criminal Appeals held in Ex parte Crisp, 661 S.W.2d 944 (Tex.Crim.App.1983) that the 1981 amendment to the Act was unconstitutional due to the drafting errors in the caption. As a result, the pre-amendment version of the Texas Controlled Substances Act remained in full force and effect as though the 1981 amendment had never been enacted.

A review of both the pre-amendment version and the 1981 amended version of the Controlled Substances Act, reveals that the offense of unlawful manufacture of a controlled substance, to wit: amphetamine, is a third degree felony under both. However, the 1981 amended version provides for an aggravated offense where the amount of controlled substance involved weighs more than 200 grams, a provision not found in the pre-amended version, therefore, the range of punishment between the two versions differs. Normally, this difference would require reversal; however, because punishment in the present case was assessed under TEX.PENAL CODE ANN. sec. 12.42(d) (Vernon Supp.1984), pursuant to the court’s finding that appellant had been convicted of two prior felonies, appellant was not harmed by the unconstitutionality of the statute because punishment was not assessed under the provisions of the Controlled Substance Act. Appellant’s ninth ground is overruled.

The judgment of the trial court is affirmed.