text:
    MEN’S WEARHOUSE, Appellant, v. Michael HELMS, Appellee.
    No. 01-83-0331-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 11, 1984.
    Rehearing Denied Dec. 31, 1984.
    John F. Nichols, Linda Marshall, John F. Nichols, P.C., Houston, for appellant.
    Howard L. Nations, Zandra R. Anderson, Houston, for appellee.
    Before DOYLE, DUGGAN and LEVY, JJ.
   OPINION

DOYLE, Justice.

This appeal arises from a judgment in favor of appellee on theories of assault, battery, and false imprisonment. In prosecuting its appeal from a bench trial, appellant failed to timely file a statement of facts. Tex.R.Civ.P. 386. A motion requesting leave for late filing was filed with this court and overruled, and a motion for rehearing was denied. See B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860 (Tex.1982). The Texas Supreme Court dismissed the Men’s Wearhouse appeal on this point for lack of jurisdiction. 27 Tex. Sup.Ct.J. 264 (March 10, 1984) (unpublished).

The case thus presents itself for our review without a statement of facts. However, findings of fact and conclusions of law, which were not objected to by the defendant, were made by the trial court as follows:

FINDINGS OF FACT
1. On or about November 14, 1977, Defendant, its vice-principal, agents, servants and employees participated in, authorized, directed, and/or ratified the following acts:
(a) the willful detention of [plaintiff] Michael Helms;
(b) such detention being without the Plaintiff’s consent;
(c) such detention being without authority of law.
2. Defendant, its vice-principal, agents, servants and employees participated in, authorized, directed and/or ratified conduct which resulted in personal injury to Michael Helms and which proximately caused Michael Helms to suffer mental anguish, humiliation, shame, fright, embarrassment, depression and physical pain.
3. Defendant, its vice-principal, agents, servants and employees participated in, authorized, directed and/or ratified conduct which was reckless, willful, malicious and in wanton disregard of Michael Helm’s rights in injuring him.
4. Defendant intentionally or knowingly caused physical contact with Plaintiff when defendant knew or should have reasonably believed the Plaintiff would regard the contact as offensive or provocative.
CONCLUSIONS OF LAW
1.Defendant, its vice-principal, agents, servants and employees participated in, authorized, directed and/or ratified conduct which constituted an assault and battery on Michael Helms and caused actual damages in the amount of Five Thousand dollars ($5,000.00).
2. Defendant, its vice-principal, agents, servants and employees participated in, authorized, directed and/or ratified the false imprisonment of Michael Helms causing actual damages to him in the amount of Fifteen Thousand dollars ($15,000.00).
3. Defendant, its vice-principal, agents, servants and employees participated in, authorized, directed and/or ratified reckless, willful, malicious conduct in wanton disregard of Michael Helms rights for which Defendant should pay Plaintiff the sum of Forty Thousand dollars ($40,000.00) in exemplary damages.

Since no statement of facts was brought forward, the trial court’s findings are conclusive, and it must be presumed that the evidence was sufficient to support such findings. Mullins v. Main Bank & Trust, 592 S.W.2d 24, 25 (Tex.Civ.App.-Beaumont 1979, no writ); David A. Carl Enterprises, Inc. v. Crow-Shutt #14, 553 S.W.2d 118, 120 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ); Vanity Fair Properties v. Billingsley, 469 S.W.2d 453, 454 (Tex.Civ.App.-San Antonio 1971, writ ref’d n.r.e.) and cases cited therein. Rule 419 of the Texas Rules of Civil Procedure provides, “any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party.” See White v. Corpus Christi Little Misses Kick. Ass’n, 526 S.W.2d 766 (Tex.Civ.App.-Corpus Christi 1975, no writ). However, when the trial court has filed specific findings of fact that are sufficient to support its judgment, the rule should not be invoked to avoid the binding effect of such findings. David A. Carl Enterprises, Inc., supra. Thus, we decline to apply rule 419 in the instant' case.

Appellant brings 19 points of error. Of these, 15 expressly relate to the state of the evidence presented at trial, alleging variously the absence or insufficiency of the evidence to support elements of appel-lee’s case or the eonclusiveness of the evidence in defense of the alleged offending conduct. There being no statement of facts in the record, we must presume there was evidence to support the findings of fact and the court’s judgment. Mays v. Pierce, 281 S.W.2d 79, 82 (Tex.1955).

The remaining four points of error, numbers 13, 15, 17, and 19 allege that the court’s damage awards were either excessive or an abuse of discretion. The remaining four points are also determined by this rule because it was not against the great weight and preponderance of the evidence.

We conclude that the judgment of the trial court is supported by the record. The judgment is affirmed.

LEVY, J., dissenting in part.

LEVY, Justice,

dissenting.

I adhere to the views expressed in my earlier dissent, being somewhat appalled by the procedural disaster generated by the majority’s perfunctory application of Rule 21c, Tex.R.Civ.P.Ann.

By denying appellant’s motion to permit a late filing of the statement of facts, despite the mitigating facts that:

(a) the transcript was timely filed;
(b) the statement of facts was timely prepared and distributed to the opposing counsel;
(c) appellee did not plead, nor could he show, any harm resulting from the appellant’s oversight in not timely filing the statement of facts, because he received a copy thereof well before the May 27th deadline;
(d) no delay in the appellate process whatsoever occurred;

the majority compels the conclusiveness of the trial court’s findings; forces the presumption that the evidence was sufficient to support such findings; and effectively ignores adjudication of appellant’s nineteen points of error, most of which were eviden-tiary questions.

In this triumph of form over substance, the majority succeeds in nullifying the teaching of Cheek v. Zalta, 669 S.W.2d 719 (Tex.1984), in which a similar situation induced the Supreme Court to remand the cause to the Court of Appeals “to allow the filing of the statement of facts and briefs and for consideration of the merits.”

Nor can I agree with the majority’s unsupported holding that we are not entitled to consider uncontested assertions contained in the parties’ briefs as a substitute statement of facts, pursuant to Tex.R. Civ.P. 419. See Sarris v. Christi, 217 S.W.2d 99, 101 (Tex.Civ.App.—Dallas 1949, writ ref’d n.r.e.), which holds:

The factual background of the suit, other than applicable summary conclusions of law, is not controverted or challenged in briefs of the parties, accepted [sic] as correct; thus in absence of a statement of facts on this appeal, the required statement in briefs, Rule 419, Vernon’s Texas Rules of Civil Procedure, as to the facts upon which the judgment appealed from was based, are adopted in lieu of statement of facts.

Our Rule 1 of the Texas Rules of Civil Procedure was assigned its preferred, and in fact primary, position to indicate decisively that all subsequent rules shall be given a liberal construction in order to obtain a “just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.”

By blindly applying Rule 21c, we are depriving appellant of his right to an adjudication on the merits and thus his fundamental right to procedural fairness. This constitutes a violation, as I said in my earlier dissent, of the Due Process Clause of the 14th Amendment, “perhaps the most majestic concept in our whole constitutional system.” Its operation in this case compels conclusions and presumptions that, in effect, deprive this Court of the opportunity to affirm the fairness of the trial.

For these reasons, I respectfully dissent.

      . Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 173-4 (1951) (concurring opinion).


source: Caselaw Access Project

author: STEPHEN F. PRESLAR, Chief Justice.

license: Public Domain

text:
    Concepcion G. CASTILLO, Appellant, v. SEARS, ROEBUCK AND COMPANY, d/b/a Sears, El Paso, Appellee.
    No. 08-83-00184-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 12, 1984.
    Rehearing Denied Jan. 9, 1985.
    Raymond C. Caballero, Barbara Masse, El Paso, for appellant.
    H. Keith Myers, Grambling, Mounce, Sims, Galatzan & Harris, El Paso, for ap-pellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and OSBORN, JJ.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

Appellant Concepcion G. Castillo brought suit against Appellee Sears, Roebuck and Company seeking damages for defamation, negligence and false imprisonment. The trial court denied Appellee’s motion for instructed verdict and the case was submitted to the jury on requested special issues for false imprisonment. This is an appeal from a jury verdict that Appellant take nothing by her suit. We reverse and remand.

In September, 1977, Appellant visited the Sears store in El Paso, Texas, in order to make a final payment on a lay-away purchase. After making her payment, she was handed a large box which contained several dresses she had previously purchased. As Appellant was leaving the store, a loud bell or alarm sounded. A sales clerk immediately approached Appellant and removed the box from her arms. Appellant followed the sales clerk to the register counter whereupon the box was examined for inventory control tags. The clerk found and removed a tag from one of the dresses, repackaged the garment, and returned the box to the Appellant. Appellant then left the store with her package.

Appellant filed suit against Sears seeking damages for defamation, negligence and false imprisonment. She testified that she felt she had been accused of theft and that she had been forced to follow Appel-lee’s employee back into the store. She further testified that she had been embarrassed and humiliated by the incident and had suffered from lack of sleep and a nervous rash.

At the close of Appellant’s case-in-ehief, Appellee moved for an instructed verdict on each of Appellant’s claims. Contrary to Appellant’s contention, it is clear that there was no instructed verdict as to her slander and negligence claims. Appellant argues in her first two points of error that the trial court granted a partial instructed verdict as to the causes of action for slander and negligence. However, the record explicitly reflects that the court overruled the Appel-lee's motion for instructed verdict:

THE COURT: Well, as I see the proof put on by the Plaintiff, there is, of course, no question that there is no slander proven by your client at all. Although the evidence may not be as substantial as some people may ideally like to have, the Court is going to overrule you insofar as the Motion in toto is concerned. This case is going to go, as I see it, to the Jury on the issue of false arrest and imprisonment and any damages that may have been proven. Okay, therefore, the Motion at this time is overruled.

Following the overruling of the motion for instructed verdict, Appellee presented its case. Appellant cross-examined all of Appellee’s witnesses without any restriction on her opportunity to develop her causes of action for slander and negligence. At the close of the Appellee’s evidence, it was incumbent upon both parties to request and submit instructions and special issues relative to their respective theories of recovery and defense. Appellant’s failure to submit special issues for defamation, slander and negligence at the close of the evidence waives her right to appeal the exclusion of these issues. Rule 279, Tex.R.Civ.P.; University of Texas System, v. Schieffer, 588 S.W.2d 602 (Tex. Civ.App.—Austin 1979, writ ref’d n.r.e.). See also: Clarostat Mfg. Inc. v. Alcor Aviation, Inc., 544 S.W.2d 788, 792-94 (Tex.Civ.App.—San Antonio 1976, writ ref’d n.r. e.); Sun Pipe Line Co. Inc. v. Kirkpatrick, 514 S.W.2d 789 (Tex.Civ.App.—Beaumont 1974, writ ref’d n.r.e.).

Appellant contends in Point of Error No. Three that the court erred in improperly placing the burden on Appellant to negate a statutory privilege, rather than upon Ap-pellee to establish the privilege as an affirmative defense. The jury was asked: “[f]rom a preponderance of the evidence, do you find that the Plaintiff was falsely imprisoned by the Defendant?” And the court instructed the jury as follows:

You are instructed that the term “false imprisonment” as used in this charge means the wilful detention by another without justification, against her consent, whether such detention be effected by violence, by threats or any other means, which restrains a person from moving from one place to another.
Further, you are instructed that under the law of this State a person reasonably believing another has stolen or is attempting to steal property is privileged to detain the person in a reasonable manner and for a reasonable period of time for the purpose of investigating ownership of the property.

Appellant objected to this instruction at trial on the basis that this last paragraph misplaced the burden of proof.

In order to establish false imprisonment, Appellant must show that her physical liberty was directly restrained by another, without adequate legal justification. Kroger Company v. Demakes, 566 S.W.2d 653 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.); J.C. Penney Co. v. Duran, 479 S.W.2d 374 (Tex.Civ.App.—San Antonio 1972, writ ref d n.r.e.); The portion of the charge objected to is taken from Article Id, Tex.Rev.Civ.Stat. Ann. (Vernon Supp.1984), which provides:

Art. Id. Privilege to investigate theft.
A person reasonably believing another has stolen or is attempting to steal property is privileged to detain the person in a reasonable manner and for a reasonable period of time for the purpose of investigating ownership of the property.

We view this as an affirmative defense and hold that the court erred in causing the plaintiff and not the defendant to prove the elements of the statute by a preponderance of the evidence. Article Id was enacted in 1973 and prior to that the almost identical language was contained in Article 1436e, Vernons Annotated Penal Code (repealed 1973). In Kroger v. Demakes, supra, that article was treated as an affirmative defense and submitted as an issue with the jury finding that the defendant failed to establish it by a preponderance of the evidence. In Adcox v. Safeway Stores, Inc., 512 F.Supp. 452 (N.D.Tex. [Dallas Div.] 1980), it was held that Article Id as a justification for a merchant’s actions may be raised as a defense to a claim of false imprisonment. In the case at bar, Appellee pled Article Id as an affirmative defense. It defends its submission as an instruction on the basis that as an issue it would be an inferential rebuttal issue to the issue inquiring if plaintiff was falsely imprisoned by the defendant. “An inferential rebuttal issue, ... is one which seeks to disprove the existence of an essential element submitted in another issue.” Writz v. Orr, 533 S.W.2d 468, 472 (Tex.Civ.App. — East-land 1976, writ ref’d n.r.e.). As seen from the court’s definition of false imprisonment, there is the element of lack of legal justification; but invocation of Article Id does not “seek to disprove” that. When the article is invoked there is no longer an issue of false imprisonment for reliance on it is an admission that false imprisonment occurred, but says that it is excused in law because of the statute — it is in the nature of confession and avoidance and it is a privilege in fact and by its own wording. In Denton Publishing Company v. Boyd, 460 S.W.2d 881, 884 (Tex.1970), the Supreme Court said:

Privilege is an affirmative defense in the nature of confession and avoidance; and, except where the plaintiff’s petition shows on its face that the alleged libelous publication is protected by a privilege, the defendant has the burden of proving that the publication is privileged.

The statutory privileges of the law of libel and slander are analogous to the statutory privilege of Article Id. There, as here, we are dealing with the assertion of a privilege to engage in conduct which, but for the privilege, would render the actor liable. We see no distinction between a statutory privilege which avoids liability for false imprisonment and those which avoid liability for the publication of libelous statements.

In the Adcox v. Safeway case, the court cited this Court’s opinion in Gibson Discount Center, Inc. v. Cruz, 562 S.W.2d 511 (Tex.Civ.App.—El Paso 1978, writ ref’d n.r. e.). Our decision in that case did not turn on the propriety of Article Id as an instruction or an issue. It was used in the court’s charge as an instruction but such use was not questioned and we simply passed on the sufficiency of the evidence upholding false imprisonment even though the jury was instructed as to the privilege.

Appellant’s Point of Error No. Three is sustained. All other points of error have been considered and all are overruled.

The judgment is reversed and the cause remanded for another trial.


author: LEVY, Justice.

text:
    Robert Lee HOLLADAY, Appellant, v. The STATE of Texas, Appellee.
    No. 01-82-00753-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 13, 1984.

      Donald W. Rogers, Jr., Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Rory C. Flynn, J. Gordon Dees, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before WARREN, COHEN and LEVY, JJ.
   OPINION

LEVY, Justice.

Appellant was convicted of capital murder for the death of Paul Joehlin in the course of robbing him, and the jury assessed punishment at confinement for life.

Appellant does not challenge the sufficiency of the evidence, which showed that the robbery of Joehlin was committed by appellant and his accomplices, Beverly Glock, Michael Keane, and Michael Kaiser. Glock, a neighbor of Joehlin, often cleaned Joehlin’s apartment and contrived to do that act as part of the robbery scheme. Approximately twenty minutes later, the other accomplices pretended to be looking for her, and once inside his apartment, Michael Keane knocked Joehlin to the ground while the others robbed him.

Michael Keane and the appellant then caused the gruesome death of Joehlin by hitting him with a bottle, repeatedly stabbing him with a knife, and puncturing him with a meat fork. All of the accomplices were charged with capital murder. Kaiser became a State’s witness against the appellant in exchange for a guilty plea on aggravated robbery.

Appellant brings only one ground of error, alleging that the trial court erroneously overruled his objection to the court’s charge at the guilt phase of the trial. He asserted that the court inadequately instructed the jury on the law of accomplice testimony in capital murder eases.

Kaiser, having admitted to being one of the parties primarily responsible for the death of Joehlin during the robbery, was an accomplice witness as a matter of law. Kerns v. State, 550 S.W.2d 91, 94 (Tex.Crim.App.1977); Hendricks v. State, 508 S.W.2d 633, 634 (Tex.Crim.App.1974).

Tex.Code Crim.P.Ann. art. 38.14 (Vernon 1966) provides that:

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

The court instructed the jury on the law with respect to Kaiser’s accomplice testimony as follows:

The witness, MICHAEL VINCENT KAISER, is an accomplice, if an offense was committed, and you cannot convict the Defendant upon his testimony unless you first believe that his testimony is true and shows that the Defendant is guilty as charged, and then you cannot convict the Defendant upon said testimony unless you further believe that there is other testimony in the case, outside of the evidence of the said MICHAEL VINCENT KAISER, tending to connect the Defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the Defendant with its commission, and then from all of the evidence you must believe beyond a reasonable doubt that the Defendant is guilty of the offense charged against him.
An accomplice, as the term is here used, means any person connected with the crime charged.

Appellant correctly argues that the instruction must address the corroboration requirement of the accomplice witness and relate it to the aggravating elements that elevate murder to capital murder. County v. State, 668 S.W.2d 708 (Tex.Crim.App.1984); Fortenberry v. State, 579 S.W.2d 482, 485-86 (Tex.Crim.App.1979).

In Fortenberry, the Court of Criminal Appeals held that in capital murder cases, upon the defendant’s request, the jury must be instructed that the accomplice witness’s testimony must be corroborated as to the specific elements that make the offense a capital crime. Whether the court’s holding would apply to every offense in which there is an aggravating element is a problem we are not required to resolve at this time, except to observe that art. 38.14 of the Code of Criminal Procedure appears to require only that there be “other evidence” that tends to connect the defendant with the offense.

The instant charge does not direct the jury’s attention to the requirements of the law that Kaiser’s accomplice testimony be corroborated as to the particular robbery which elevated the murder to capital murder, and thus does not comply with the holdings in Fortenberry and County, supra.

The State complains that this objection was waived because it was too general and not distinctly specified. Tex.Code Crim.P.Ann. art. 36.14 (Vernon 1965). The appellant counters that he made a timely and specific objection, which was overruled by the court. We agree. Defense counsel made numerous objections to that specific portion of the charge concerning accomplice testimony, and the record reflects a timely and specific objection, among others not quite as specific, as follows:

For example, after putting intending, after the words Michael Vincent Kaiser in the charge, where it says, “tending to connect the defendant with the offense committed,” I think it has to say that tending to connect the defendant with, first, that a robbery was, in fact, committed or attempted to be committed, and secondly, that a murder of one Paul Joehlin was committed or along those lines.
The sole ground of error is sustained.

For failure of the court to instruct the jury adequately on the requirement that an accomplice witness must be corroborated as to the very basis of the aggravated offense charged, the judgment of the trial court is reversed and the cause remanded.


author: DUGGAN, Justice.

text:
    Carlton Earl BROOKS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0269-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 13, 1984.
    Sandra Garfinkel, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., William J. Delmore, III, Robin F. Brown, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before EVANS, C.J., and LEVY and DUGGAN, JJ.
   OPINION

DUGGAN, Justice.

Appellant was charged by indictment with the offense of aggravated robbery. He waived his right to a jury trial and pleaded guilty to the lesser-included offense of robbery. The court found him guilty and assessed punishment at 10 years confinement. Appellant served 91 days in the Texas Department of Corrections, after which the trial court placed him on “shock probation” for a period of 10 years. Appellant was found to have violated the conditions of his probation by committing two subsequent offenses and failing to pay his supervisory fee. Appellant appeals from the revocation of his probation.

In one ground of error, appellant contends that his conviction must be reversed because the indictment was fundamentally defective, in that it failed to describe the property which appellant intended to steal. In pertinent part, the indictment alleges that appellant did:

while in the course of committing theft of property owned by M.A. ... and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a firearm.

Appellant concedes that robbery has been interpreted to be an assaultive offense rather than an offense against a property, and, therefore the property he intended to steal need not be described. Rohlfing v. State, 612 S.W.2d 598 (Tex.Crim.App.1981). Despite his familiarity with this case, appellant argues to the contrary because robbery is classified under Title 7 of the Penal Code. Appellant argues that the statute must be unconstitutional if robbery is not found to be a property offense because the “title” is otherwise misleading. Appellant is correct that article III, section 35 of the Texas Constitution states:

No bill ... shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed ....

However, that article refers to the caption of a bill, not a “title” within the Penal Code. Shannon v. Rogers, 159 Tex. 29, 314 S.W.2d 810 (1958); e.g., Harris County Fresh Water Supply District No. 55 v. Carr, 372 S.W.2d 523 (Tex.1963). The title of the Penal Code within which the section falls neither limits nor expands the meaning of the statute. Tex.Rev.Civ.Stat.Ann. art. 5429b-2, sec. 3.04 (Vernon Supp.1984) (the Code Construction Act); Tex.Penal Code Ann. sec. 1.05(b) (Vernon 1974). Appellant’s sole ground of error is overruled.

The judgment of the trial court is affirmed.


author: HILL, Justice.

text:
    Vernon Walter ROBERTS, Appellant, v. The STATE of Texas, State.
    No. 2-83-440-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 20, 1984.

      Steve H. Swander, Price & Swander, Forth Worth, for appellant.
    Tim Curry, Dist. Atty., and David K. Chapman, Asst. Dist. Atty., Fort Worth, for State.
    Before ASHWORTH, BURDOCK and HILL, JJ.
   OPINION

HILL, Justice.

Vernon Walter Roberts appeals from his conviction by a jury of the offense of murder. Upon his plea of true to an enhancement paragraph, the trial court assessed his punishment at 62 years in the Texas Department of Corrections. Roberts presents seven grounds of error.

By grounds of error numbers one and two, Roberts complains that the trial court erred in not instructing the jury as to the lesser included offenses of involuntary manslaughter and criminally negligent homicide.

We reverse and remand for trial because we find that Roberts was entitled to have the jury instructed as to the lesser included offenses of involuntary manslaughter and criminally negligent homicide.

In determining whether a charge on a lesser included offense is required, a two-step analysis is to be used. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is not guilty of the alleged offense but is guilty only of the lesser included offense. Salinas v. State, 644 S.W.2d 744, 745 (Tex.Crim.App.1983). The fact that the evidence is controverted or conflicts with other evidence in the case is not to be considered in determining whether an instruction on a lesser included offense should be given. See Hobson v. State, 644 S.W.2d 473, 477 (Tex.Crim.App.1983). When evidence from any source, including the defendant’s own testimony, raises the issue of a lesser included offense, and there is testimony that, if guilty at all, the defendant is only guilty of the lesser included offense, then the charge on the lesser included offense must be submitted to the jury, assuming the charge is properly requested or its omission properly objected to. Hunter v. State, 647 S.W.2d 657, 658 (Tex.Crim.App.1983). It is then the jury’s duty, under the proper instruction, to determine whether the evidence is credible and supports the lesser included offense. See Hobson, 644 S.W.2d at 477.

Since involuntary manslaughter requires a lesser culpable mental state on the part of the defendant, it is by definition a lesser included offense of murder. Brooks v. State, 548 S.W.2d 680, 683 (Tex.Crim.App.1977). See TEX.CODE CRIM. PROC.ANN. art. 37.09 (Vernon 1981). Criminally negligent homicide is, in turn, a lesser included offense of involuntary manslaughter. Ormsby v. State, 600 S.W.2d 782, 784 (Tex.Crim.App.1979).

The distinction between involuntary manslaughter and criminally negligent homicide is simply one of degree. Salinas, 644 S.W.2d at 746. Involuntary manslaughter occurs when a person recklessly causes the death of another, TEX.PENAL CODE ANN. sec. 19.05(a)(1) (Vernon 1974); criminally negligent homicide occurs when a person causes the death of another by criminal negligence, TEX.PENAL CODE ANN. sec. 19.07 (Vernon 1974). A person acts with “recklessness” when he or she “is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur”; a person acts with “criminal negligence” when he or she “ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.” TEX.PENAL CODE ANN. sec. 6.03(c) & (d) (Vernon 1974). In Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App.1975), the Texas Court of Criminal Appeals distinguished the two, as follows:

Reckless conduct ... involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that risk. Criminal negligence ... involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the results thereof. At the heart of reckless conduct is conscious disregard of the risk created by the actor’s conduct; the key to criminal negligence is found in the failure of the actor to perceive the risk.

In Moore v. State, 574 S.W.2d 122, 123 (Tex.Crim.App.1978), the Court reemphasized that the difference between “recklessness” and “criminal negligence” lies in whether the defendant perceives the risk of harm which his conduct creates.

On April 27, 1979, after five years of marriage, Wanda Roberts left the appellant, Vernon Roberts, and moved into an apartment. Vernon kept calling her on the telephone and she became terribly frightened. She kept a loaded shotgun at her apartment and carried a pistol in her purse.

During mid-May, Vernon and Wanda played golf together and they spent the weekend of May 24th through 27th together. At the conclusion of the weekend, Wanda sent Vernon a letter asking him not to contact her again. Between Monday night and Tuesday morning, Wanda received some more phone calls and called the police. According to the officer, Wanda was afraid and very upset. Following his conversation with Wanda, the officer began looking for Vernon.

Wanda went to work the next day at Lisa Motor Lines, where her uncle, Jerry Johnston, also worked. Johnston saw Vernon that day. Vernon was very upset, wanting to know why Wanda would not see him. He expressed his determination that Wanda would see him. Johnston observed a handgun on the floorboard of Vernon’s pickup, a .357 magnum revolver which Vernon had purchased at a pawn shop near Lisa Motor Lines that same day. The revolver was a double-action model which could not be discharged just by dropping it on the floor.

At approximately 12:30 p.m. on May 29th, Officer J.D. Christian of the Fort Worth Police Department went to Lisa Motor Lines to answer a domestic disturbance call. He spoke to Wanda and listened in on a telephone call between her and a “male voice.” He heard the voice threaten to “get” Wanda and kill her. The voice threatened to “come down there” to kill her. Wanda was very upset.

The following Sunday morning, June 3, 1979, Wanda was sitting on her apartment porch when Vernon drove past. She became extremely afraid and went inside the apartment. As she and her daughter were talking in the bedroom, the apartment door crashed in and Vernon entered the bedroom with a pistol in his hand. The daughter, Lee Ann Little Solomonson, rolled off the bed onto the floor. While she was on the floor, Lee Ann was not able to see whether Wanda or Vernon had a gun, but she heard them tell one another to “put down the gun.” She was able to see that Vernon put his gun on the floor in front of him. She then sat up, but upon seeing Vernon reach for his pistol, she lay back down. When she did that, she could see that Vernon’s pistol was no longer on the floor. She remained crouched behind the bed.

She could hear Vernon saying, “Wanda, do you love your daughter?” Wanda replied, “Yes, I do.” Vernon then said, “I am going to count to three and I am going to start shooting at that bed.” Vernon counted “one, two,” and then there was a gunshot. Lee Ann got up after the gunshot and began hitting Vernon over the head with the telephone. She was shot in the chin. Although she did not see Vernon shoot her, he was the only one with a pistol in front of her. ^

Later, when she came to, Lee Ann heard Wanda moan. The telephone did not work, but Lee Ann got help by going to the front door and telling a passerby that she had been shot and needed help.

Wanda’s body was subsequently found in the bedroom closet. There was a shotgun underneath her and a .38 caliber bullet beside her. The bullet was one capable of being fired from a .357 magnum pistol. Wanda had been shot twice in the upper chest at a range of six to twelve inches by a gun firing a bullet over .30 caliber. The lower of these wounds caused her death a few minutes after the shot was fired.

Vernon drove into the emergency entrance of Harris Hospital at approximately 10:00 a.m. on the morning of the offense, his clothes covered with blood. He could not walk without support. He told a nurse that he had been shot and that the police were after him because he had killed a couple of people.

Vernon testified that he went to the apartment to talk to Wanda and to trade his pistol for her shotgun. He related that he had the pistol in his pocket and that he threw it on the floor when the deceased asked him to give it to her. He said she was holding a shotgun at the time. He shot Wanda while they were struggling over possession of his pistol after she had shot him with the shotgun. He said that he did not have any intention of harming her.

The jury was instructed on the defense of accident and asked to decide if Roberts was guilty of murder, guilty of voluntary manslaughter or not guilty.

Under these facts, the jury could have disbelieved Roberts’ testimony that he did not mean to point the gun at the deceased, but believed his testimony that he did not intend to hurt her. In that event, the jury could infer that Roberts acted recklessly, as defined, in struggling with the deceased over the gun. Alternatively, even though Roberts had a lot of experience with guns, the jury could have inferred from the facts that the circumstances developed quickly in such a way so as to cause him not to be aware of the risk of death to the deceased.

Since there is evidence to raise the issues of involuntary manslaughter and criminally negligent homicide, we hold that the jury should have been charged accordingly. Lugo v. State, 667 S.W.2d 144, 147-49 (Tex.Crim.App.1984).

The State relies on the opinions of Simpkins v. State, 590 S.W.2d 129 (Tex.Crim.App.1979) and Brooks v. State, 548 S.W.2d 680 (Tex.Crim.App.1977). The opinions in both of these cases, as they relate to the evidentiary requirement for the submission of these lesser-included offenses, were disapproved by the Court of Criminal Appeals in Lugo, 667 S.W.2d at 147.

On appeal, appellant has urged five other grounds of error. Since one or more of the same questions may arise during a new trial of the same case, we will discuss appellant’s grounds of error three through seven.

In ground of error number three, Roberts urges that the trial court erred by denying his request to use Lee Ann’s prior statement for impeachment. Where a witness for the State has made a report or has given a statement prior to testifying, the defendant, after a timely and specific motion, is entitled to inspect and use such prior and available report or statement for cross-examination and impeachment purposes, and this right obtains even though the witness has not used the instrument to refresh his memory. Zanders v. State, 480 S.W.2d 708, 710 (Tex.Crim.App.1972). This has been called the ‘Gaskin Rule.” See Gaskin v. State, 172 Tex.Cr.R. 7, 853 S.W.2d 467 (1962).

Lee Ann had given an oral statement to a prosecutor. The statement was taped and later transcribed. Lee Ann never listened to the tape or read the transcript, nor did she utilize either to prepare for the trial. The trial court granted Roberts access to the tape but denied a subsequent request for the transcript. Lee Ann’s statement consisted of the oral statements she made to the prosecutor, as preserved by the tape recording. We do not reach the question as to whether the production of such a tape recording is required by the “Gaskin Rule,” because Lee Ann’s statement in the form of the tape recording was produced for Roberts for use in cross-examination. If the production of the tape was required by the “Gaskin Rule,” the requirement was met when the tape was produced for Roberts’ benefit. Roberts complains of the trial court’s failure to allow him the use of the State’s transcription of the tape. We hold that the purpose of the “Gaskin Rule” was met by allowing Roberts access to the tape. Roberts cites no authority requiring the State to produce a transcription, which is a third person’s version of the witness’ statement, rather than the statement itself. Roberts has not shown that he was prevented from producing his own transcription of the tape. Further, Roberts had the responsibility to request that the transcript be placed in a sealed envelope and forwarded to this court for examination on appeal. By his failure to do so, Roberts did not preserve his error. Lewis v. State, 481 S.W.2d 804, 805 (Tex.Crim.App.1972). He did forward a tape to us, but a tape is not what he was denied at trial. We overrule ground of error number three.

Roberts asserts in ground of error number four that the trial court erred by not allowing him to recall one of his witnesses for the purpose of explaining a mistake in her testimony.

Eloise Ray, a defense witness, testified at trial that Lee Ann had told her after the shooting that, “Buddy didn’t intend to hurt my mother. If she hadn’t shot him with a shotgun nothing would’ve ever happened.” On cross-examination, she testified that Buddy Roberts told her that he shot Lee Ann because she was hitting him with the telephone. On redirect, Roberts’ attorney asked if there were any possibility that maybe Lee Ann or someone else made the statement. She responded, “No, there is no question in my mind because I was there.” On recross-examination, she stated that there was no question in her mind that Buddy told her he shot Lee Ann because she was hitting him with the phone. She was excused as a witness following her testimony. After the court recessed for the day, Vernon called her and told her that he never made that statement. As a result of that conversation, she was offered as a witness by Vernon Roberts so that she might testify that it was Lee Ann, not Vernon, who had told her that Vernon had shot Lee Ann because she was hitting him over the head with the telephone.

The law vests with the trial judge the discretion to allow or refuse the testimony of a person who has not been summoned as a witness, but who has been influenced by the statement of witnesses. In the absence of abuse of discretion, the ruling of the trial court in allowing or refusing such testimony will not be disturbed. Harris v. State, 163 Tex.Cr.R. 183, 289 S.W.2d 605, 606 (1956). In this case Eloise Ray, as a witness who had been excused, was either a witness, to whom the witness rule still applied, or she was in the same position as one who had not been called. In either event, we hold that it was not an abuse of discretion for the trial court to not permit her to testify again. Roberts cites no case which would show that the trial court abused its discretion. We overrule ground of error number four.

By ground of error number five, Roberts asserts error on the part of the trial court with respect to the admission of testimony of various witnesses as to Wanda’s fear of her husband and as to actions which the witnesses took in response to conversations they had with Wanda or conversations which she had with others that they overheard. We have examined the testimony complained of and the authorities presented. All of the testimony consists of observations as to Wanda’s emotional condition or actions taken by police officers as a result of conversations. None of the testimony complained of consists of out-of-court statements offered for the truth of the matter asserted. We therefore hold that such statements were not hearsay statements. The authorities presented all relate to situations in which out-of-court statements were offered and are not relevant to the case at bar. We overrule ground of error number five.

By ground of error number six, Roberts urges that the trial court erred by allowing the prosecutor to argue that the jury could not consider voluntary manslaughter if the appellant provoked the difficulty.

Jury argument must stay within the bounds of permissible jury argument, and must not state law contrary to the court’s charge. Burke v. State, 652 S.W.2d 788, 790 (Tex.Crim.App.1983); Mauldin v. State, 628 S.W.2d 793, 795 (Tex.Crim.App.1982). The charge here read:

So, in this case, if you find and believe from the evidence beyond a reasonable doubt that the Defendant, Vernon Walter Roberts, immediately before the difficulty, then and there did some act, or used some language, or did both, as the case may be, with the intent on his, the Defendant’s part, to produce the occasion for killing the deceased, Wanda Roberts, and to bring on the difficulty with the said deceased, and that such words and conduct on Defendant’s part, if there was such, was reasonably calculated to, and did, provoke a difficulty, and that on such account the deceased attacked the Defendant with deadly force, or reasonably appeared to the Defendant to so attack him or to be attempting to so attack him, and that the Defendant then killed the said Wanda Roberts by the use of deadly force, to wit, by shooting her with a gun, in pursuance of his original design, if you find there was such, then you will find the Defendant guilty of murder.
On the other hand, if you find from the evidence that the acts done or language used by the Defendant, if any, were not, under the circumstances, reasonably cal-cualated [sic] or intended to provoke a difficulty or an attack by deceased upon the Defendant, or if you have a reasonable doubt thereof, then in such event, Defendant's right of self defense would in no wise be abridged, impaired, or lessened, and if you so find, or if you have a reasonable doubt thereof, you will decide the issue of self-defense in accordance with the law on that subject given in other portions of this charge, wholly disregarding and without reference to the law on the subject of provoking the difficulty.

Roberts argues that one can be guilty of voluntary manslaughter if one provokes the difficulty but has no intent to kill. This theory or possibility was not included in the charge, and Roberts made no objection at trial when the trial court failed to include it. Since the prosecutor’s argument was not contrary to the charge, no error is presented. Burke, 652 S.W.2d at 790. We overrule ground of error number six.

In ground of error number seven, Roberts asserts that the trial court erred by instructing the jury that it could convict for an offense occurring on a date subsequent to the return of the indictment. The indictment, which alleged an offense occurring on or about June 3,1979, was returned on June 28, 1979. In one portion of the charge which applied the law to the facts, the charge showed an offense of December 3, 1979, a date subsequent to the return of the indictment. All of the evidence at trial, including that of Roberts, showed that the offense occurred on June 3, 1979, the date alleged in the indictment. This correct date was also reflected throughout the rest of the court’s charge. Such an error was a clerical error which, under the facts of this case, caused no harm to Roberts. White v. State, 61 Tex.Cr.R. 498, 135 S.W. 562, 564 (1911). Roberts cites no authority which would require a reversal for an error of this nature. We overrule ground of error number seven.

We sustain appellant’s grounds of error numbers one and two, and overrule his grounds of error numbers three through seven. We reverse and remand for a new trial.


author: JOE SPURLOCK, II, Justice. HILL, Justice,

text:
    Donald Eugene ODOM, Appellant, v. The STATE of Texas, State.
    No. 2-83-352-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 20, 1984.

      Ward Casey, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., and Darrell Adk-erson, Asst. Dist. Atty., Fort Worth, for State.
   OPINION

JOE SPURLOCK, II, Justice.

The appellant, Donald Eugene Odom, was convicted by a jury of the offense of aggravated robbery with a deadly weapon. TEX.PENAL CODE ANN. sec. 29.03(a)(2) (Vernon 1974). He entered a plea of “true” to the two enhancement paragraphs of the indictment. The trial court assessed punishment at confinement for thirty years in the Texas Department of Corrections.

On appeal, Odom contends in five grounds of error that (1) the trial court committed fundamental error when it inquired into the numerical division of the jury in its deliberations and that the trial court erred in; (2) refusing a mistrial after the jury foreman reported that the jury was divided “nine to three, nine guilty, three not guilty.”; (3) giving an “Allen Charge” or “Dynamite Charge” to the jury; and (4) instructing the jury to retire to the jury room, take a vote and report back. In a fifth ground, he contends that the cumulative effect of the complained of errors denied him due process and trial by jury as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution because the combined effect coerced the jury to return a verdict of guilty.

We affirm.

There is no challenge to the sufficiency of the evidence. However, in order to rule on each ground of error and to consider the “cumulative effect of the complained of errors”, a discussion is necessary of the relevant facts occurring after the jury received the charge.

The record reflects that during the jury’s deliberations at the guilt/innocence phase of the trial, the foreman sent several notes to the trial court. The first note stated that the jury believed it was hung and that no one was changing his opinion. Then the following proceedings occurred:

[Outside the presence of the jury]
THE COURT: Mr. Casey, if you have no objections, I propose to poll the jury and find how they’re divided by numbers before we decide whether or not you want to ask for a mistrial.
MR. CASEY [defense counsel]: Okay THE COURT: Okay [The Jury is seated in the jury box and the following proceedings are had.]
THE COURT: Okay, Mr. Foreman, without telling me how you stand on guilt or innocence, how are you divided by numbers? Ten to two, eight to four— THE FOREMAN: Nine to three, nine guilty, three not guilty.
THE COURT: Okay. Well, if you’ll go back and continue deliberations, I'll see what the lawyers want to do in that regard. So you may be retired.
[The Jury is retired to the jury room and the following proceedings are had outside their presence.]
THE COURT: What is your pleasure, gentlemen? Are you going to let them continue?
MR. MEANS [Prosecutor]: Our motion is I think the court has had experience with deliberations, reaching a conclusion with numbers being split more than this jury displayed before the court. I don’t think sufficient time has passed.
THE COURT: Okay
MR CASEY: We move for a mistrial.
THE COURT: Overruled. We will go about 4:15 and I’m going to give them the Allen charge if it’s only nine to three.

After further deliberations, the foreman sent a second note to the court stating that “One person has changed their [sic] position.” At 4:30 p.m., the trial court, with the consent of the parties, let the jury separate for the night. Neither we, nor the trial court, know if that meant the vote was 10-2 or 8-4.

At 9:00 the next morning, the trial court, outside the presence of the jury, announced its intention to give the jury an “Allen Charge.” Appellant objected on the grounds that the “Allen Charge” would constitute additional instructions to the jury in violation of the Code of Criminal Procedure and that in light of the court’s inquiring into the numerical division of the jury and being informed that the jury was voting nine for guilty and three for not guilty, the effect of the charge would be to coerce the minority members into changing their vote to guilty, thereby denying appellant a fair trial from a jury of his peers. The trial court overruled appellant’s objection and, after noting that the jury had already deliberated a total of two hours and thirty-three minutes, more time than it took to put on the evidence in the ease, the trial court directed that the jury be brought in. To the trial court’s inquiry whether the jury was still split nine to three, the foreman answered “yes.” The bailiff then read the following supplemental instruction to the jury:

If this jury finds itself unable to arrive at an unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury.
The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time. Any such future jury will be empaneled in the same way this jury has been empaneled and will likely hear the same evidence which has been presented to this jury. The questions to be determined by that jury will be the same questions confronting you and there is no reason to hope the next jury will find these questions any easier to decide than you have found them.
With this additional instruction, you are requested to continue deliberations in an effort to arrive at a verdict that is acceptable to all members of the jury, if you can do so without doing violence to your conscience.

After the bailiff read the above, to the jury, the court admonished the jury as follows: “Don’t do violence to your conscience, but continue deliberating.”

The jury returned to the jury room to continue its deliberations. At some time prior to 10:07 that same morning, the foreman sent the court a third note which stated that “[t]he jury has not changed from first vote yesterday. (9-3).” At 10:07 the jury was returned to the jury box and the following proceedings occurred:

THE COURT: Mr. Foreman, are you still nine to three?
THE FOREMAN: Yes, sir.
THE COURT: Okay, do you think further deliberations would produce any results?
THE FOREMAN: It's possible. We’re still having some deliberations in there.
THE COURT: Have you just taken a vote?
THE FOREMAN: Not within the last few minutes.
THE COURT: How about taking a vote and then report back.
THE FOREMAN: Okay [The Jury is retired to the jury room and the following proceedings áre had outside their presence.]
THE COURT: What is your objection?
MR. CASEY: Now comes the Defendant, Donald Eugene Odom, and objects to the oral instruction by the Court to the Jury to retire to the jury room and instruct them to go vote again.
THE COURT: Okay, overruled.
MR. CASEY: Note our exception.
[At 10:12 a.m., the Jury is seated in the jury box and the following proceedings are had.] .
THE COURT: Mr. Foreman, you have reached a guilty verdict?
THE FOREMAN: Yes, sir.
THE COURT: Let me call your names, ladies and gentlemen, and I’ll ask you if this is your verdict.
MR. CASEY: Would you ask if it’s their individual verdict?
[Each juror agreed the verdict was his individual verdict.]

In his first ground of error, Odom contends that the trial court committed fundamental error when it inquired into the numerical division of the jury in its deliberations. However, Odom failed to object to the trial court’s polling the jury to determine how they were divided numerically and failed to object to the foreman’s unresponsive answer in which he voluntarily informed the court on how the jury stood on guilt and innocence after being specifically instructed not to state how the jury stood on guilt or innocence. Therefore, as properly stated in his ground, Odom is limited to fundamental error only.

In support of his position, appellant relies on Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926) in which the Supreme Court of the United States held the mere inquiry by the trial court is error per se. This Court is not bound by Brasfield because the rule in Brasfield is limited to procedure in federal courts and is not binding on the states through the Fourteenth Amendment. U.S. esc rel. Kirk v. Director, Department of Corrections, State of Illinois, 678 F.2d 723 (7th Cir.1982). Odom has not cited a Texas case, nor have we found one, which makes the mere inquiry as to the numerical division of the jury reversible error per se. Appellant’s first ground is overruled.

In his second ground, Odom contends the trial court erred in refusing a mistrial after the jury foreman reported that the jury was divided “nine to three, nine guilty, three not guilty.” However, the record reflects that Odom failed to object to the foreman’s unresponsive answer and, consequently, has failed to preserve error for review. Further, we do not find that the foreman’s volunteered information on how the jury stood on guilt and innocence to be fundamental error. Appellant’s second ground is overruled.

In his third ground, appellant contends that the trial court erred in giving the “Allen charge” to the jury after being informed that three minority jurors were voting for acquittal. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Although not clear, apparently, it is Odom’s position that the “Allen charge” had a coercive effect upon the minority jurors to vote for guilt. He cites no Texas authority for his position.

In Arrevalo v. State, 489 S.W.2d 569, 571 (Tex.Crim.App.1973), the Texas Court of Criminal Appeals upheld an instruction containing language substantially similar to the instruction here challenged finding the instruction to be neither coercive nor a comment on the weight of the evidence. Further, this Court relying on Arrevalo previously upheld the same instruction as here challenged, finding that the instruction did not coerce the jury and that the trial court did not abuse its discretion in giving the instruction. Ray v. State, 649 S.W.2d 142, 147 (Tex.App.—Fort Worth 1983, pet. ref’d.). After the bailiff read the charge which requested the jurors to continue deliberations in an effort to arrive at a verdict that is acceptable to all the members of the jury, “if you can do so without doing violence to your conscience,” the trial judge himself reiterated: “Don’t do violence to your conscience, but continue deliberating.” This instruction being approved previously, and having no authority cited requiring reversal, we overrule appellant’s third ground of error.

In his fourth ground, Odom contends that the trial court erred in instructing the jury to take a vote and then report back. Again, Odom has merely pointed out what language may have been objectionable but fails to state specific grounds or reasons for the objection, See McGowan v. State, 664 S.W.2d 355 (Tex.Crim.App.1984). The general trial objection that defendant “objects to the oral instruction by the Court to the jury to retire to the jury room and instruct them to vote again” preserves nothing for review.

We do not condone the trial court’s instruction to the jury to “vote again”. However, the error if any, is not of enough significance to constitute fundamental error. In asking the jury to “vote then report back”, the trial court was seeking to determine whether further deliberations would produce a verdict. The communication did nothing more than ask where the jurors stood. The Court of Criminal Appeals has uniformly held that a communication between the court and the jury, although not made in compliance with provisions of the statutes, which does not amount to an additional instruction by the court upon the law or some phase of the case, does not constitute reversible error. McGowan v. State, 664 S.W.2d at 358; Arrevalo v. State, 489 S.W.2d at 572. The complained of communication did not amount to an additional instruction upon the law or some phase of the evidence and, consequently we find no fundamental error, and overrule Odom’s fourth ground of error.

In his fifth ground, Odom contends that the totality of the circumstances; i.e., inquiry of the jury as to numerical division; report by the jury foreman that nine jurors were voting guilty and three were voting not guilty; the giving of an “Allen” type charge; and the instruction to vote and report back, denied appellant due process and trial by jury as guaranteed by the Sixth and Fourteenth Amendments of the United States because the jury was coerced into returning a verdict of guilty. Appellant refers to Jones v. Norvell, 472 F.2d 1185 (6th Cir.1973), cert. denied, 411 U.S. 986, 93 S.Ct. 2275, 36 L.Ed.2d 964 (1973). We do not find Jones controlling because the instruction submitted to the deadlocked jury in Jones was indeed coercive, where here the opposite is true.

In Jones the state trial court was informed by a court officer not only that the jury was deadlocked, but that the jury stood eleven to one. The trial court then recited that division to the jury and asked whether the court officer’s report of eleven to one was correct. On receiving a conditional affirmative, the trial court said “[I]t is your duty to reach a verdict if you can possibly do so — you twelve people are the only ones that can do it. The Court can’t do it, nor anyone else. You twelve people are the only ones.” Subsequently, the trial court ascertained that the jury majority was for guilty and sent them back to “see if you can make any progress. As I told you, it is your duty to decide the case, if you can do so.” Thereupon within five minutes the jury returned a verdict of guilty. The Sixth Circuit Court considered the “totality of the circumstances” and found the appellant’s constitutional right to a fair and impartial trial guaranteed by the Sixth and Fourteenth Amendments had been violated. Jones, 472 F.2d at 1186.

The instant case is distinguishable. With the approval of counsel, the trial court, after receiving a note to the effect the jury was hung, polled the jury to determine its numerical division. The fact that the jury foreman, contrary to the instructions of the court, volunteered to the court the jury’s numerical division in reference to guilt and innocence did not preclude the trial judge from giving a proper Allen type charge. Cf. Sanders v. United States, 415 F.2d 621, 631-32 (5th Cir.1969), cert. denied, 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d 271 (1970); and United States v. Rao, 394 F.2d 354, 356 (2nd Cir.1968) cert. denied, 393 U.S. 845, 89 S.Ct. 129, 21 L.Ed.2d 116 (1968). The charge given here by the trial court made it plain to the jurors that they were to try to arrive at a verdict acceptable to all members of the jury, if they could do so without violating their consciences. There is nothing in the charge that is improper, or questionable. We find the court’s action in giving the Allen type charge was not unduly coercive. See: Potter v. State, 481 S.W.2d 101 (Tex.Crim.App.1972).

The trial court’s request to “take a vote and report back” was not coercive in that there was no implication that the court was expecting a verdict, but was merely interested in ascertaining how the jury stood numerically so that the court could determine whether a mistrial was appropriate. It is well settled that the length of time a jury deliberates is discretionary with the trial court. TEX.CODE CRIM.PROC. ANN. art. 36.31 (Vernon Supp.1984); Garcia v. State, 522 S.W.2d 203, 208 (Tex.Crim.App.1975). Considering the totality of the circumstances we find the appellant was not denied a fair and impartial trial as guaranteed by the Sixth and Fourteenth Amendments of the Constitution of the United States. Appellant’s fifth ground is overruled and the judgment affirmed.

HILL, J., dissents.

HILL, Justice,

dissenting.

I respectfully dissent, because, under the totality of the circumstances, the action of the trial judge, in giving a supplemental instruction to encourage a unanimous verdict, when he knew that the jury was split 9-3 for conviction, was so inherently coercive as to deprive the appellant of his right to a fair and impartial jury trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. United States v. Sae-Chua, 725 F.2d 530 (9th Cir.1984); Jones v. Norvell, 472 F.2d 1185 (6th Cir.1973); People v. Santiago, 108 Ill.App.3d 787, 64 Ill.Dec. 319, 439 N.E.2d 984 (1st Dist., 2nd Div. 1982).

The Supreme Court of California has stated that “[m]ost cases wherein adjurato-ry remarks of the court have been held coercive are those in which the court, either through its own questioning or through volunteered statements of jurors, has become informed not only as to the numerical division of the jury but also as to how many stand on each side of the ultimate issue of guilt_ The urging of agreement in such circumstances of course creates in the jury the impression that the court, which has also heard the testimony in the case, agrees with the majority of jurors. Coercion of the jurors in the minority clearly results.” People v. Carter, 68 Cal.2d 810, 69 Cal.Rptr. 297, 442 P.2d 353, 357 (1968).

The United States Supreme Court has held that even the inquiry as to the jury’s numerical split has a coercive tendency which affects the proper relations of the court to the jury, and that it is essential to the fair and impartial conduct of the trial that the inquiry by itself should be regarded as ground for reversal. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). However, as noted by the majority, most jurisdictions and most federal circuits have held that the rule in Brasfield is an administrative rule which is only applicable to federal courts, and is not applicable to the states through the Constitution. One of the cases cited by the majority is the case of U.S. ex rel. Kirk v. Director, Dept. of Correct., 678 F.2d 723 (7th Cir.1982), an opinion by the Seventh Circuit on Kirk’s application for writ of habeas corpus. The opinion by the Illinois Court of Appeals upon the affirmance of Kirk’s conviction argues that the reversal in Brasfield was probably not due to just the asking of the question, but was actually because of the combination of the circumstances of the inquiry as to jury division, coupled with an Allen charge. People v. Kirk, 76 Ill.App.3d 459, 31 Ill.Dec. 835, 394 N.E.2d 1212 (1st Dist., 4th Div.1979).

The majority cites two cases in which the conviction was affirmed although the judge had learned how the jury split and then had given the jury a supplemental instruction. These cases are Sanders v. United States, 415 F.2d 621 (5th Cir.1969) and United States v. Rao, 394 F.2d 354 (2nd Cir.1968). These cases are distinguishable from the case at bar in that neither case involved an inquiry by the trial judge as to the division of the jury; in both instances the jury volunteered the information in a note. Had the judge inquired as to the division of the jury in those cases, as he did in this one, the cases would have been reversed under the Brctsfield rule. If these cases are not distinguishable on this basis, I would differ with the holdings therein and would find, based on the authorities previously cited, that under the totality of the circumstances as outlined, the appellant was denied a fair and impartial jury trial, as guaranteed to him by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. I would sustain ground of error number five and reverse and remand for trial.

ASHWORTH and BURDOCK, JJ., join.


author: HOWERTON, Judge. COMBS, Judge,

text:
    Opal Ruth Mable MOSLEY, Appellant, v. Edwin Fred MOSLEY, Appellee.
    Court of Appeals of Kentucky.
    Jan. 4, 1985.
    Steven D. Gold, Sheffer, Hoffman, Neel & Wilson, Henderson, for appellant.
    Thomas E. Simpson, Wesley & Simpson, Morganfield, for appellee.
    Before COMBS, HOWERTON and LESTER, JJ.
   HOWERTON, Judge.

Opal Mosley appeals from a portion of the decree dissolving her marriage with Edwin Mosley, which held that she had no marital interest in his ongoing workers’ compensation award and that she was not entitled to receive maintenance. We conclude that ongoing workers’ compensation benefits, which have not been received pri- or to the dissolution of the marriage, are not marital property subject to division. We further determine that the trial court did not abuse its discretion in denying Opal maintenance. Therefore, we affirm the decree.

The parties were married for approximately 45 years. At the time the marriage was dissolved, Edwin was 65 and Opal was 60 years of age. Practically all of the real and personal property belonging to the parties was determined to be marital. All such property was divided equally between the parties after all costs and attorney fees were paid. We are advised that the real property sold for approximately $40,000 and that there was a $25,000 certificate of deposit plus various other items of personal property including vehicles which were sold and divided equally.

The trial court concluded that Edwin’s United Mine Workers pension was marital property and ordered that it be divided equally for future payments. However, the court further concluded that future payments for Edwin’s workers’ compensation black lung benefits were not marital property and would accumulate only for Edwin’s benefit. The court also determined that Opal was not entitled to maintenance.

Opal first argues that Edwin’s entitlement to the workers’ compensation award occurred during the marriage and that it should be considered as marital property. She cites KRS 403.190(2), which indicates that marital property is all property acquired by either spouse subsequent to the marriage with certain exceptions, none of which are applicable in this situation. She also cites Johnson v. Johnson, Ky., 638 S.W.2d 703 (1982), and Quiggins v. Quiggins, Ky.App., 637 S.W.2d 666 (1982), which held that certain workers’ compensation benefits were marital property. None of these authorities are dispositive of this case, however. Johnson and Quiggins involved lump-sum awards which were received by the claimant prior to the dissolution of the marriage. In this situation, Edwin received approximately $22,000 in back pay for his black lung benefits, and such payment was included in the marital estate. The question we must decide, however, is the status of the future payments which will accrue and be made after dissolution.

A workers’ compensation award differs from a pension. A pension accrues while one is working and, to the extent that it has accrued and is vested prior to the dissolution of a marriage, it must be considered with the marital estate. Workers’ compensation benefits are based on something that happened while one was employed and, although the event may have occurred during the time of the marriage, the compensation is awarded to replace the injured or diseased employee’s loss of ability to work in the future. The benefits are not earned as compensation for working; they are paid to assist workers who will have diminished future earnings due to a work-caused injury or disease. Payments that are received, or weekly benefits that have actually accrued but have not yet been paid as of the date of the dissolution of the marriage, are to be included as marital property, just as earned income. But, payments which accrue and are paid after the dissolution of the marriage are not part of the marital property any more than the worker’s future earnings would be. Compensation benefits, together with other income of a spouse, may be considered when determining what, if any, maintenance to award to the other spouse, but the nonworking spouse is not entitled to any specific portion of the future income from the worker’s disability compensation.

Opal next argues that the trial court erred by failing to award her maintenance. KRS 403.200(1) provides that the trial court may grant maintenance to either spouse only if it finds the spouse seeking maintenance lacks sufficient property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment. If either factor is satisfactorily met, maintenance need not be granted. Carter v. Carter, Ky.App., 666 S.W.2d 257 (1983).

Our review is limited to a consideration of whether the trial court considered the statutory factors and whether it abused its discretion in denying maintenance. The trial court specifically stated that its action was taken pursuant to the provisions of Chapter 403, and we cannot say that this ease presents a clear abuse of discretion. Edwin is totally disabled, and Opal is not. The parties divided everything equally, including Edwin’s U.M.W.A. pension, and the parties’ social security benefits are also subject to division. We cannot say that the court’s failure to award maintenance constitutes error.

The judgment of the Union Circuit Court is affirmed.

LESTER, J., concurs.

COMBS, J., dissents with separate opinion.

COMBS, Judge,

dissenting.

I respectfully dissent from the majority opinion, and would hold that appellee’s workers’ compensation award was marital property to which appellant would be entitled to share.

Appellee became disabled and received a total-permanent disability award during his marriage to appellant. It is true that most of the bi-weekly payments will be payable after the dissolution of the marriage. However, his right to receive these benefits became vested during the marriage, just as much as would haye his right to receive retirement benefits which became vested during the marriage. To distinguish this factual situation from retirement income or from lump sum compensation payments is a distinction without a difference.