author: SPEARS, Justice. WALLACE, Justice,

text:
    Mable Jo David HOLICK, Petitioner, v. Danny Eugene SMITH Et ux., Respondents.
    Nos. C-3261, C-3262.
    Supreme Court of Texas.
    Feb. 6, 1985.
    Rehearing Denied March 13, 1985.

      Thomas T. Tatum, Whitehouse, for petitioner.
    Bain, Files, Allen & Caldwell, Jerry Bain, Tyler, for respondents.

       These are direct companion cases.

   SPEARS, Justice.

This case involves the involuntary termination of the parent-child relationship between Mable Jo Holick and two of her children. Mr. and Mrs. Danny Eugene Smith brought suit for termination and for adoption of the two Holick children. After a non-jury trial, the court ordered termination of the parent-child relationship and granted the adoption. The court of appeals, in an unpublished opinion, affirmed. We reverse the judgments of the courts below.

In early March 1982, Ms. Holick left the children with the Smith family. Ms. Holick had been unable to financially support herself or the children. Although she was able to keep them clothed and fed, they sometimes had no place to sleep but the car. The children were behind on their immunizations and had head lice when Ms. Holick’s niece, Mrs. Smith, offered to take care of them until Mrs. Holick could get on her feet.

After leaving the children with the Smiths, Ms. Holick went to Dallas with her youngest child to live with her boyfriend. There, she obtained employment as a waitress. She sent no money to the Smiths, nor did they expect her to send money for the children’s support. She did not visit or write the children for over six months, although she did call and talk to them once during that period.

The Smiths have two children of their own, are very active in the church, and are able to financially support the children. The social worker’s report concludes that the Smiths are excellent role models, express love for the children, and appear to want to adopt them.

The issue presented on appeal is whether the Texas Family Code authorizes termination under these circumstances. We are called upon to construe section 15.02 of the Family Code, which provides in part:

A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1)the parent has:
(A) voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; or
(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; or
(C) voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months; or
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; or
(F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
and in addition, the court further finds that termination is in the best interest of the child.

Tex.Fam.Code Ann. § 15.02 (Vernon Supp. 1984).

The trial court terminated the parent-child relationship based on subsection (1)(C). There are five requirements for termination under subsection (1)(C):

(1) voluntarily left the child,
(2) alone or in the possession of another,
(3) without providing adequate support of the child,
(4) remained away for at least six months, and
(5) termination is in the best interest of the child.

It is undisputed that Ms. Holick voluntarily placed the children in the possession of the Smiths and that she remained away for at least six months, even though she had expressed an intent to return for the children. It is undisputed that Ms. Holick made no support payments but was not expected to by the Smiths, and she did not contest the trial court’s finding that the termination and adoption would be in the best interest of the children. She contends, however, that she was not required to actually support the children, but only make arrangements for their adequate support.

The natural right existing between parents and their children is of constitutional dimensions. In re G.M., 596 S.W.2d 846, 846 (Tex.1980); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976). Indeed, “involuntary termination of parental rights involves fundamental constitutional rights.” In re G.M., 596 S.W.2d at 846. This natural parental right has been characterized as “essential,” “a basic civil right of man,” and “far more precious than property rights.” See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1976). A termination decree is complete, final, irrevocable and divests for all time that natural right as well as all legal rights, privileges, duties and powers with respect to each other except for the child’s right to inherit. Wiley, 543 S.W.2d at 352; Tex.Fam.Code Ann. § 15.07 (Vernon 1975). Moreover, the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent’s rights. Santosky v. Kramer, 455 U.S. 745, 747, 102 S.Ct. 1388, 1391, 71 L.Ed.2d 599 (1980); Richardson v. Green, 677 S.W.2d 497, 500 (Tex.1984). Consequently, termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent. See Cawley v. Allums, 518 S.W.2d 790, 792 (Tex.1975); Heard v. Bauman, 443 S.W.2d 715, 719 (Tex.1969).

The Smiths seek a construction of subsection (1)(C) that would require Ms. Holick to have personally sent them “adequate support” for the children; however, they never expected such support. The Smiths took the children because Ms. Holick could not adequately support them. The Smiths, nevertheless, argue that the legislature intended to require parents to personally “provide adequate support” under (1)(C) because (1)(B) contains the language “provide for the adequate support.” In Brokenleg v. Butts, 559 S.W.2d 853 (Tex.Civ.App.—El Paso 1977, writ ref’d n.r.e.) cert. denied 442 U.S. 946, 99 S.Ct. 2894, 61 L.Ed.2d 318 (1979) the court construed subsection (1)(B), the three-month provision. The court held that subsection (1)(B) requires the parent to make arrangements for the adequate support of the child rather than personally send support.

We believe that subsection (1)(C) is capable of two interpretations. “Provide” is defined to mean “to furnish; supply” or “to fit out with means to an end.” Webster’s New International Dictionary (2nd ed. 1960). Thus, subsection (1)(C) is susceptible to an interpretation which would merely require that the parent make arrangements for adequate support rather than personally support the child.

The Smiths would have us adopt an interpretation which would allow the termination based on whether the parent is acutely indigent, not whether the parent intended to abandon the child nor whether the parent’s conduct endangers the physical or emotional wellbeing of the child. Under such an interpretation a parent’s rights could be terminated if he placed his child with another who promised to provide support, even though he expressed an intent to return as soon as he could get back on his feet. His rights could be terminated even if he sent every dime he could spare for that child’s support, if what he sent were not enough to be termed “adequate.” With the view that termination is such a drastic and grave measure that involuntary termination statutes are strictly construed in favor of the parent, we decline to adopt such an interpretation.

We hold that under § 15.02(1)(C) Ms. Holick was required to make arrangements for the adequate support rather than personally support the children. Termination was not authorized under these facts. Accordingly, we reverse the judgments of the courts below and render judgment that the termination is denied and the adoption is set aside.

Dissenting opinion by WALLACE, J., in which McGEE and KILGARLIN, JJ., join.

WALLACE, Justice,

dissenting.

I respectfully dissent. The majority opinion clearly misconstrues both the obvious intent and the plain meaning of Tex. Fam.Code Ann. § 15.02 (Vernon Supp. 1984). It is a rule of statutory construction that every word of a statute is presumed to have a specific purpose. Likewise, every word excluded from a statute must be presumed to have been excluded for a particular reason. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex.1981).

We must presume the Legislature intended that termination of the parent-child relationship may be granted when: (1) the parent leaves the child with one not a parent ... without expressing an intent to return without providing for the adequate support of the child and remains away three months; or, (2) the parent leaves the child with a parent, or another ... without providing adequate support of the child and remains away for at least six months. Tex. Fam.Code Ann. § 15.02(1)(B) and § 15.-02(1)(C). The crucial words expressly adopted in the first instance are, “without expressing an intention to return” and “without providing for” the adequate support of the child; whereas, in the latter situation the language is “without providing adequate support.”

In comparing § 15.02(1)(A), (B) and (C), it will be noted that there is no time delay before suit is required if a parent leaves and expresses an intent not to return. Three months absence is required before termination where the child is left with someone other than a parent and no provision for support is made. The time period expands to six months even if the child is left with the other parent and no support is provided. The Tex.Fam.Code coordinates a progression of conduct with lengthened delays. The omission of “for” from § 15.-02(1)(C) was logically intended.

These provisions do not authorize termination only in the case of the acutely indigent. Termination of the parent-child relationship is authorized in any situation where the parents meet the legislative requirements for termination through poverty, neglect, abuse or any other condition falling within these sections.

Denying termination in this instance ignores those situations where the best interest of the child is served by termination of the parent-child relationship. In this case, the trial court found that the best interest of the child would be served by the stable, loving environment of the Smiths. This finding was not contested by Ms. Holick. While it is true that the parent-child bond is very strong, it is not true that all parents provide for the best interest of their children.

A common thread running through the Tex.Fam.Code is protection of the “best interest of the child.” The express language of the provisions regarding termination of the parent-child relationship should be followed when the trial court finds that to do so would be in the best interest of the child.

Accordingly, I would affirm the judgments of the courts below and render judgment that the termination and adoption be granted.

McGEE and KILGARLIN, JJ., join in this dissenting opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph L. SPEER Et Ux., Petitioners, v. James Dewey STOVER, Individually and As Community Survivor In the Estate of Melba Imogene Stover, Deceased, Respondent.
    No. C-3668.
    Supreme Court of Texas.
    Feb. 6, 1985.

      Joseph Chacon, Jr., San Antonio, for petitioners.
    Carter & Van Steenberg, Virginia Kazen Van Steenberg, San Antonio, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

The question presented for review is whether the order sustaining James Sto-ver’s misnomered plea in abatement is final and appealable. In an unpublished opinion, the court of appeals held that the plea was interlocutory and dismissed the appeal for want of jurisdiction. We reverse the judgment of the court of appeals and remand the cause to that court.

During the pendency of the administration of the Estate of Melba Stover in the probate court, the Speers filed this action in district court seeking specific performance of a real estate contract which allegedly required Stover to convey his community half of a house as well as his deceased wife’s community half, and alternatively seeking actual and exemplary damages exceeding $100,000 for fraud.

Stover filed a “plea in abatement” contending that this cause should be dismissed because it concerns matters incident to the estate of Melba Stover, and, therefore, the county court has original jurisdiction. The trial court agreed with Stover and sustained his “plea in abatement.” In his findings of fact and conclusions of law, the trial judge concluded that the district court lacked subject matter jurisdiction over this action. The Speers appealed on the merits, but the court of appeals dismissed the appeal as interlocutory and unappealable.

Stover’s plea was, in actuality, a “plea to the jurisdiction” and not a “plea in abatement.” Pleas in abatement and pleas to the jurisdiction have different objectives and different results. Sustaining a plea to the jurisdiction requires dismissal; sustaining a plea in abatement requires that the claim be abated until removal of some impediment. Texas Highway Department v. Jarrell, 418 S.W.2d 486, 488 (1967). In this case no obstacle or impediment stands in the way of proceeding. Instead, the trial court found that it lacked subject matter jurisdiction. A plea to the jurisdiction would have been the appropriate plea in this instance. Stover’s misnomer has no effect on the disposition of this case. See TEX.R.CIV.P. 71; Texas Highway Department v. Jarrell.

Since the trial court concluded that it lacked subject matter jurisdiction, we hold that the order sustaining the plea was final and appealable. Pursuant to TEX.R. CIV.P. 483, and without hearing oral argument, we reverse the judgment of the court of appeals and remand this cause to that court for its consideration of the merits.


author: THOMAS G. DAVIS, Judge.

text:
    Robert Ellis CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
    No. 186-84.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 16, 1985.

      Randolph S. Worsham, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Gilbert Howard, Jane Jackson and Royce West, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

Appellant pled guilty before a jury to aggravated sexual abuse of a child. After finding appellant guilty, the jury assessed punishment at life imprisonment and a $10,000.00 fine. The Fifth Court of Appeals (Dallas) reversed the conviction and remanded for a new trial. Campbell v. State, 667 S.W.2d 221 (Tex.App.1983). The Court of Appeals held that the trial court abused its discretion by sustaining the State’s objections to defense counsel’s voir dire questions about theories of punishment. We granted the State’s petition for discretionary review to examine that holding.

We quote that portion of the voir dire which gave rise to the issue before the Court of Appeals:

“MR. McGILBERRY [Defense Counsel]: There are certain theories about punishment in a case like this. I guess it basically comes down to two. One that I think that usually comes to mind is retribution; one of the theories of punishment. That the Defendant, he or she, has done something wrong,' so they’re going to pay for it. That’s one of the theories of punishment.
“There’s also another theory of punishment. They’re not really distinct. There might be a mixture of the two that might apply in any given case, and that’s rehabilitation. If somebody committed an offense or does something wrong, it’s the theory of punishment to rehabilitate the Defendant or the person accused of doing a crime to see that the crime doesn’t happen again. In other words, rehabilitate him to make him a lawful, law abiding citizen of our community just like all of you are.
“And with that in mind, I’m going to start asking you a few questions, if I may.
“Mrs. Wright, about your theory of punishment, do you feel like—
“THE COURT: Counsel?
“MR. McGILBERRY: Yes, your Honor?
“THE COURT: I don’t think you have the right to ask them what their theory of punishment is. There’s one big theory you entirely left out.
“MR. McGILBERRY: Your Honor, I believe there’s a recent case that gives me the authority to ask this specific question.
“MR. WEST: Your Honor, I’m going to object at this particular time about defense Counsel going into, with the jurors, various respective and various theories of punishment unless he crosses a case that justifies—
“THE COURT: I hold the contention that, ‘What’s your theory of punishment’ —I don’t think that’s proper.
“MR. McGILBERRY: Your Honor, may I ask a question?
“THE COURT: I sustain the objection.
“MR. McGILBERRY: Would you consider retribution or rehabilitation to be the primary concern of the punishment?
“MR. WEST: Objection, Your Honor. I would take exception.
“THE COURT: I sustain the objection.”

Relying on Powell v. State, 631 S.W.2d 169 (Tex.Cr.App.1982), the Court of Appeals held “that the trial court erred because the appellant’s inquiry into the jur- or’s theory of punishment was a proper subject for voir dire and the trial court’s refusal to permit inquiry in this, area denied the appellant the ability to intelligently exercise his peremptory strikes.”

The State seeks to distinguish Powell from the instant case on the ground that counsel in Powell asked about three theories of punishment — deterrence, rehabilitation, and retribution — but that, in the instant case, appellant’s counsel asked about rehabilitation and retribution only. The State argues that “Appellant misstated the recognized, statutory, adjudicated theories of punishment, in that he stated same as being only two, whereas there are basically three.” The State cites the Penal Code, Sec. 1.02 for its mention of deterrence, and urges that, by omitting deterrence as a third theory of punishment, appellant’s counsel misstated the law. For this reason, the State concludes, counsel’s questions were improper, and the trial court did not abuse its discretion in sustaining objections to the questions.

The rationale of the Powell decision applies in this case no less than in Powell. As in Powell, punishment was the only issue before the jury. The punishment range available to the jury in Powell was the same as in the instant case — from five years to 99 or life, and a fine of up to $10,000.00. Concerning this range of punishment, the Powell court wrote:

“Within that punishment range, the jury was free to exercise its discretion without guidance from the court. Its ultimate decision depended upon reaching a consensus based upon the personal views of the individual jurors. The appellant was entitled to know what those views were in order to intelligently exercise his peremptory challenges.”

We do not find that counsel’s question was improper merely because he omitted mention of the deterrent theory of punishment. Counsel stated to the jury that he believed theories of punishment were “basically two” “in a case like this.” Evidently counsel thought that opposing considerations of retribution and rehabilitation would likely figure the strongest in the jury’s discussion. Accordingly he sought to elicit the panel members’ views on those subjects. The question “Would you consider retribution or rehabilitation to be the primary concern of the punishment?” was a proper one, and the Court of Appeals correctly held that the trial court abused its discretion in sustaining the State’s objection to the question.

The State argues that appellant failed to preserve the error, because appellant “did not pursue his objection or point until he receive[d] an adverse final ruling.” Appellant asked the question, and the State objected to the question. The trial court sustained the objection. Appellant was thus prevented, by a ruling of the court, from asking a proper voir dire question of the jury panel. The error was preserved for review.

The State argues further that:

“[appellant’s] counsel did not effectively or properly develop or exhaust the subject by further questioning thereon”

and that:

“the trial court’s ruling did not pre-empt further questioning by said counsel on the subject, there being no unqualified denial of further questioning.”

We do not find the need to impose a requirement of further questioning which the State’s arguments would have us do. Persistent further questioning of the panel concerning their punishment theories, in the face of the trial court’s ruling, might well have constituted contemptuous behavior by appellant’s counsel.

The judgment of the Court of Appeals is affirmed.

ONION, P.J., and McCORMICK, J., dissent.

      . Prior to voir dire the court had instructed the jury that appellant would plead guilty.


text:
    Markham DUFF-SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 68908.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 16, 1985.
    Rehearing Denied Feb. 27, 1985.

      Will Gray, Carolyn Garcia, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty. and Karen Zellars, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

THOMAS G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(3). After finding appellant guilty of capital murder, the jury returned affirmative findings to the first two special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.

Appellant was convicted, as a party, of murdering his mother, Gertrude Zabolio, by strangling her with a panty hose for remuneration or the promise of remuneration, namely, proceeds from the estate of Gertrude Zabolio. The killing occurred in Houston on October 15, 1975. According to the State’s theory, appellant, acting with specific intent to promote or assist the commission of the offense, solicited, encouraged or directed Walter Waldhauser to commit the offense. Waldhauser in turn solicited Paul MacDonald to commit the offense and MacDonald hired Allen Wayne Janecka who actually strangled the victim.

In his third ground of error, appellant contends that the evidence was insufficient to sustain a conviction for capital murder, because the testimony of accomplice witness MacDonald was uncorroborated on the issue of remuneration.

MacDonald testified that he became friends with Waldhauser in 1971 when Wal-dhauser worked as a bellhop at a Holiday Inn in Houston. MacDonald was working as a desk clerk for the same hotel.

The two men remained in intermittent contact over the next few years. At a meeting in late summer of 1975, Waldhau-ser told MacDonald, who was then in the bail bond business, that a friend named Duff needed an estate cleared up so he could get some money. Waldhauser asked MacDonald if he would be willing to commit murder, but MacDonald refused. Wal-dhauser then asked MacDonald if he could find someone through his bail bond connections to handle the job, and MacDonald promised to see what he could do. Wal-dhauser later explicitly told MacDonald that an inheritance was involved, that both the husband and wife would be killed, that the husband had to be killed in order for the estate money to pass quickly, and that Duff was a relative of the intended victims.

MacDonald testified that he stalled Wal-dhauser for several weeks, hoping that needed money from another source would materialize. On one of the occasions when Waldhauser called, Janecka, whom MacDonald had made bond for in the past, was present. MacDonald asked Janecka if he knew anyone willing to commit a murder. Janecka replied that he had done it before and would do it again.

MacDonald and Janecka agreed to perform the killings for $10,000.00; $6,500.00 to go to Janecka who would actually do the killing and $3,500.00 to MacDonald who would help Janecka plan it.

MacDonald and Janecka received $800.00 up front and another pre-murder payment of several hundred dollars. This money was physically transferred by Waldhauser in the form of cash and checks, but it was “understood,” according to MacDonald, that appellant was supplying the funds. MacDonald testified that he gave almost all of this money to Janecka.

Less than a month before the victim died, Waldhauser supplied MacDonald with details about the people to be killed, including their names, address, and habits. Wal-dhauser also informed MacDonald that the couple usually went to a cafeteria near their River Oaks home for dinner on Wednesday evenings.

An initial Wednesday evening attempt to murder the deceased and her husband was canceled when they failed to go to the cafeteria.

On October 14, 1975, MacDonald called Waldhauser and told him that another attempt would be made the next night. This call was made, according to MacDonald’s testimony, to allow Waldhauser and Duff to arrange alibis.

Janecka and MacDonald staked out the Zabolio house on the night of the 15th. The deceased left alone and the men followed her to the cafeteria. Next MacDonald drove Janecka back to the house, dropped him off, and saw him walk toward the backyard. MacDonald then parked and waited for the deceased to return home.

The murder plan called for Janecka to signal MacDonald on the latter’s beeper when the job was done. MacDonald was then to call Janecka at the Zabolio house to make sure everything went according to plans, before picking Janecka up.

After waiting approximately two hours, MacDonald received a signal on his beeper. When he called the house, however, Mrs. Zabolio answered. MacDonald phoned Waldhauser who said he would have someone check on the house. Waldhauser called MacDonald back and told him everything looked all right at the house and not to worry because all alibis were in order.

MacDonald determined that the beeper signal was related to his bail bond work. He waited at his office for a call from Janecka, which eventually came. MacDonald picked Janecka up at a service station not far from the Zabolio house.

Janecka told MacDonald that he spent a long period of time at the Zabolio house waiting for Dow Zabolio, the deceased’s husband, to return home. The deceased told Janecka that her husband was working late.

According to MacDonald’s testimony, Ja-necka told him that the deceased accepted her imminent death and was not surprised when Janecka revealed that her son was behind the murder.

Janecka also stated that at some time during the evening the deceased’s son, Markham Duff-Smith, called his mother. Janecka told MacDonald that he now knew Duff-Smith was the man who arranged the murder.

The next day MacDonald met with Wal-dhauser and appellant at Alfred’s Delicatessen on Stella Link. This was the first time MacDonald had met appellant. MacDonald had been told by Waldhauser to bring some proof that he had committed the murder.

MacDonald brought the deceased’s driver’s license which Janecka had given him. He testified that he gave the license to Waldhauser who put it between two fingers, looked at it and made a joke about avoiding fingerprints. Waldhauser gave the license to the appellant who looked at it and put it down on the table, saying nothing.

MacDonald testified that Waldhauser did most of the talking at the meeting. It was agreed that another attempt to kill Dow Zabolio would be made. Either Waldhau-ser or the appellant mentioned, without contradiction, that Dow Zabolio would make difficult the rapid distribution of the estate’s proceeds. MacDonald asked when the remainder of the money would be paid and appellant stated that no more money would be paid until the contract was completed.

Over the next few months Janecka became impatient for his money and threatened MacDonald on several occasions. MacDonald repeatedly told Waldhauser about the threats but no money was forthcoming from any source. Finally, Wal-dhauser gave appellant’s unlisted phone number to MacDonald and suggested that a call to appellant might “shake things up a bit.”

MacDonald called appellant, identified himself, and asked if appellant knew who he was. Appellant indicated that he knew MacDonald. MacDonald told appellant about the threats from Janecka and stated that something had to be done about it. Appellant agreed, stating, “Okay we’ll get it taken care of.” Shortly after this conversation, Janecka received full payment from Waldhauser.

MacDonald never received full payment and in July, 1976, moved with his family to Florida. He never again saw the appellant until the appellant was arrested. While in Florida, MacDonald received two more checks from Waldhauser drawn on a Houston bank account.

All of the foregoing testimonial evidence was provided by MacDonald. The pertinent corroborating evidence was as follows.

L.C. Johnson was the longtime handyman for the Zabolio family who discovered the victim’s body sprawled across the bathroom floor. He testified that he had known appellant for years.

Johnson and appellant were out hunting one day on some property owned by the Zabolios. As Dow Zabolio and the deceased drove up in their car, the appellant said to Johnson, “Here comes this damned old bitch. She ought to be dead.” When Johnson scolded appellant for saying such a thing, appellant responded, “You just don’t know.”

Johnson also testified that there were muddy footprints on the floor of the house on the morning he discovered the deceased’s body.

Alex Perez had known the appellant since they were both about ten years old. Perez testified that appellant and his mother had argued repeatedly, from the time appellant was in high school until his mother’s death, over the subject of money and cars. According to Perez, appellant lived beyond his means and expected his mother to help him out financially since she was able to do so. Appellant became angry when his mother would not give him money.

Perez also testified that appellant was in dire financial straits shortly before his mother died, but had plenty of money to spend on clothes and cars after her death. Appellant told Perez that he and his sister opened the deceased’s safety deposit box the day after her death and “got everything out” before it could be sold off by the estate.

Felix Tijerina was another lifelong friend of appellant’s. He also testified that appellant and his mother had disagreements concerning money matters. Tijerina confirmed Perez’s testimony about appellant’s relative financial status before and after the murder. Appellant at one time indicated to Tijerina, whose mother was wealthy, that Tijerina would be financially independent if or when Tijerina’s mother was gone. Appellant lived with Tijerina during the time his mother was killed and for several months thereafter.

In the weeks following the death of appellant’s mother he was very nervous, according to Tijerina. He slept with a gun under his pillow. Once when Tijerina came home from work unexpectedly, appellant was hiding behind the door with the pistol drawn. He stated that he thought Tijerina was someone else, and indicated that his problems were money related.

Not long after the deceased’s death appellant had a falling-out with Waldhauser. Appellant told Tijerina that the estrangement concerned a dispute over money.

William Askey was the bank officer responsible for administering the trust appellant received as part of his inheritance. He testified that in late 1975 or early 1976, appellant asked him for an advance of $3,000.00 from the trust. Since the trustee bank would advance a distribution only for a valid reason, Askey asked appellant why he needed the money. At first appellant was evasive, but he ultimately replied that he could be harmed if he did not come up with the money.

Dow Zabolio testified that appellant’s arguments with the deceased over her refusal to fund his lavish life-style were a persistent feature of family life. In early 1975, Dow and appellant were returning from a trip to the airport where they had seen the deceased off on a European trip. On the way to the airport, appellant’s mother had once again refused one of his requests for money. Appellant told Dow, “Now, I wouldn’t put up with a woman like that.” Dow testified that appellant made statements like that, “once in awhile.”

Dow further testified that during a conversation among appellant, the deceased, and the appellant’s sister, approximately one to two years before the deceased’s death, appellant asked for his “inheritance money” from the estate of the deceased’s first husband.

Officer R.C. Horn investigated the scene of the deceased’s death. Horn looked through the deceased’s purse in an effort to find identification, but was never able to locate her driver’s license.

Jerry Sol Eikenhorst, a onetime Harris County Jail inmate, was in a cell next to MacDonald’s. Testimony established that he wrote to the appellant’s lawyers detailing information MacDonald allegedly told him about the Zabolio case, information to the effect that: MacDonald had hired Ja-necka to kill the deceased for Waldhauser; MacDonald had never met appellant and appellant knew nothing about the plans to kill his mother; MacDonald and Waldhau-ser made up the story about the meeting at Alfred’s Delicatessen in order to get a good deal from the district attorney’s office.

When called as a defense witness, Eiken-horst testified, to the apparent surprise of defense counsel, that MacDonald never denied meeting or talking with appellant. Eikenhorst explained that he and appellant were both in isolation, but because their respective cases were in the same court, they planned and fabricated Eikenhorst’s testimony while in the holdover cell awaiting court appearances. The two also met in the writ and rehabilitation rooms at the penitentiary in Huntsville. According to Eikenhorst, he agreed to take part in the fabrication because appellant offered to hire a lawyer for him once appellant was free and because Eikenhorst wanted the prestige within prison of having helped another inmate beat the system.

On cross-examination by the State, Eik-enhorst mentioned a note given to him by appellant. The note contained a “script,” according to Eikenhorst, that Eikenhorst was supposed to use, which detailed a defensive theory based on MacDonald’s supposed revelations to Eikenhorst. This note was eventually admitted into evidence and read to the jury by Eikenhorst. Appellant stipulated that the handwriting on the note was his.

Part of the writing on the note was crossed out. The crossed-out portion posited that there had been a meeting at Alfred’s Delicatessen but that it had been an innocuous business meeting as far as appellant was concerned, with Waldhauser introducing MacDonald as a stockbroker.

In the margins of the note, next to the crossed-out portion, appellant had written, “Imp. MacDonald Never Met Duff-Smith.” The rest of the note essentially stated that Waldhauser and MacDonald had agreed to frame appellant in order to avoid the death penalty.

Eikenhorst also testified that Texas Department of Corrections’ inmate Reginald Williams, who earlier testified for the defense that MacDonald admitted framing appellant, was part of appellant’s scheme to fabricate a story about MacDonald.

Donald Wayne Chaline worked with appellant at Prudential Insurance Company in 1975. He had previously worked for various bail bondsmen. Chaline testified that though the two men were not close friends, they were on good terms with each other, because they were the only young men in their division. According to Chaline, appellant knew about Chaline’s background in the bail bond business.

In the Spring of 1975, over the course of several days, appellant complained to Cha-line about the difficulty he was having in financing the purchase of an automobile, and appellant repeatedly mentioned his mother’s refusal to help with the financing.

During this same period, appellant arranged to meet Chaline for drinks one afternoon at a bar not far from the Prudential Building. A friend of appellant’s was also present. Once more appellant bemoaned his mother’s failure to facilitate the purchase of a car, but on this occasion he made a “harsh” statement Chaline had not heard before. Appellant stated that he “ought to have the bitch [his mother] killed. All the money’s going to be mine anyway.”

Chaline, who was shocked by the remark, did not directly respond and instead tried to change the subject. Though he did not think appellant was joking, Chaline took what was said with a grain of salt.

When Chaline read about the death of appellant’s mother he was worried, but said nothing to anybody.

Several months after the death, Chaline, while driving in southwest Houston, spotted appellant. Appellant motioned-for Cha-line to pull into a parking lot. It was obvious to Chaline from appellant’s car and clothes that he was doing well.

Appellant talked about some prosperous deals he had been involved in and stated that he had received cash and stocks from his mother’s estate. The discussion then shifted to the death itself:

“Q. Was the subject of suicide discussed?
“A. Yes.
“Q. And what relationship was the subject of suicide discussed? Who brought it up and what was said about it?
“A. Well, he kind of laughed or jokingly said about the police had ruled it a suicide which, you know, obviously it wasn’t.
“Q. Why was it obviously that it wasn’t? I mean, was that obvious to you?
“A. Because he told me it wasn’t.”

Appellant went into great detail with Chaline about how he had arranged the death of his mother. Appellant and a friend, a real estate investor and coin collector, had hired somebody to commit the offense. Appellant thought his stepfather would be home that night too, but he had been off somewhere. The killer waited several hours for the stepfather to come home. Appellant also told Chaline that, “his mother pretty well realized that she was going to die and accepted it.”

Chaline testified that appellant made fun of the police work on the case. Appellant mentioned some muddy footprints inside of the house that the police had completely overlooked and which were cleaned up before being discovered.

Once appellant made his admission to Chaline, Chaline recalled the conversation he had with appellant at the bar in the Spring of 1975. Chaline now believed that appellant’s remarks at the bar had constituted an indirect request or testing of the waters to see if Chaline was willing to arrange the deceased’s murder.

Chaline testified that he said nothing to the police about appellant’s admission for over three years, because he felt implicated. Then in 1979 he read about the deaths by gunshot of appellant’s sister Diana Wanstrath, brother-in-law John Wanstrath, and fourteen-month-old nephew Kevin Wanstrath. He started making anonymous phone calls and telling what he knew to Rick Nelson, a Houston Post reporter who was covering the Wanstrath killings. Nelson relayed the information to Johnny Bonds, the homicide detective investigating the Wanstrath killings, and Chaline ultimately met with Bonds.

Bonds testified that when he received the information supplied by Chaline, neither he nor any other officer with knowledge of the Zabolio case was aware of the existence of muddy footprints in the Zabolio house. Bonds verified the information, however, by talking to the caretaker Johnson. Bonds verified through Waldhauser himself that the latter was a coin collector and real estate investor.

Art. 38.14, Y.A.C.C.P., 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 test as to the sufficiency of corroborating evidence is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. Edwards v. State, 427 S.W.2d 629, 632 (Tex.Cr.App.1968).

In capital murder cases where reliance is placed on accomplice testimony, the accomplice witness must be corroborated as to the element which elevates murder to capital murder. Fortenberry v. State, 579 S.W.2d 482 (Tex.Cr.App.1979). Accord, see County v. State, 668 S.W.2d 708 (Tex.Cr.App.1984). As noted earlier, appellant does not contest the sufficiency of the corroborating evidence in general, but rather, contends that the corroborative evidence relevant to the element of remuneration was insufficient.

Appellant cites Granger v. State, 605 S.W.2d 602 (Tex.Cr.App.1980), and McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979), in support of the proposition that the non-accomplice evidence of murder for remuneration was insufficient.

Granger is not on point because in that case no evidence whatsoever was admitted in support of the remuneration element.

Appellant points to McManus as a case where far more was required, in the way of corroborative evidence on the remuneration element, than in the instant case. In the first place, McManus did not purport to establish any minimum evidentiary standard in cases such as this. Moreover, the non-accomplice testimony on the remuneration element, though sufficient, was not overwhelming.

McManus involved a defendant who murdered his employee’s parents for one-third of the estate that she stood to inherit. The employee was the primary accomplice witness. The murder took place in late July of 1076 and had been planned for several months.

The defendant’s girl friend in McManus testified that in June and July the defendant mentioned leaving town on vacation. The defendant told her this would not be until mid-August, because he was going to “run into some money.”

An acquaintance of the defendant who was also a friend of the defendant's employee testified that the defendant would not allow the two friends to take a planned vacation in June. He told the acquaintance, “Well, if you all will just wait until late August [to go], I will pay for everything.”

This Court held that the above evidence constituted sufficient corroboration of the accomplice testimony that the defendant had committed the murder for remuneration or the promise of remuneration.

In the instant case, several non-accomplice witnesses gave testimony relevant to the remuneration element.

Perez, Tijerina, and Dow Zabolio testified to longstanding disputes between appellant and the deceased over the question of money, and to appellant’s anger at the deceased’s refusal to underwrite his lavish life-style.

Perez and Tijerina testified to the perilous state of appellant’s finances just prior to his mother’s death and Tijerina and Cha-line testified concerning appellant’s extreme haste to enjoy the fruits of his mother’s estate by opening her safety deposit box the day after her death.

Finally, and most significantly, Chaline testified that appellant’s threat or wish to kill his mother was directly connected to her failure to provide him with sufficient funds and his impatience at having to wait for his inheritance money. Appellant’s later nonchalant admission of guilt to Chaline was immediately preceded by a discussion of how prosperous appellant was doing as a result of inheriting a portion of his mother’s estate. The death threat made in Cha-line’s presence and the later direct admission of guilt to Chaline, particularly when viewed together, tend to support the State’s theory that appellant’s primary motive in having his mother killed was his desire to immediately reap the proceeds of her estate.

We find that the non-accomplice testimony, considered in its entirety, “tends to connect the defendant with,” a murder for remuneration. Appellant’s third ground of error is overruled.

In his fourth ground of error, appellant complains that the admission into evidence of the “script” given to Eikenhorst by appellant violated the trial court’s pretrial discovery and inspection order.

Appellant made no objection to the admission of the note in question. It is well settled that the proper procedure when alleging surprise due to violation of a trial court’s order for discovery is to object or ask for a postponement or continuance of the trial. Lindley v. State, 635 S.W.2d 541 (Tex.Cr.App.1982); Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.1980); Hubbard v. State, 496 S.W.2d 924 (Tex.Cr.App.1973). Nothing is presented for review.

Appellant’s fifth and sixth grounds of error relate to the indictment and jury instruction.

The indictment charges that appellant did unlawfully:

“and intentionally employ Walter Wal-dhauser to commit the murder of Gertrude Duff-Smith Zabolio for remuneration and promise of remuneration, namely, money, and the said Walter Waldhau-ser did on or about October 15, 1975, in Harris County, Texas, intentionally cause the death of Gertrude Duff-Smith Zabolio by strangling her with pantyhose, for remuneration and promise of remuneration, namely money from Markum Duff-Smith.
“It is further presented that in Harris County, Texas, Markum Duff-Smith, hereafter styled the Defendant, heretofore on or about October 15, 1975, did then and there unlawfully, intentionally and knowingly cause the death of Gertrude Duff-Smith Zabolio by strangling her with pantyhose and said murder was committed for remuneration and the promise of remuneration, namely, the proceeds of the estate of Gertrude Duff-Smith Zabolio.”

Though both paragraphs of the indictment charge capital murder under Y.T. C.A. Penal Code, Sec. 19.03(a)(3), the theories behind the two paragraphs differ.

The first paragraph of the indictment charges appellant with “employing another to commit the murder for remuneration or the promise of remuneration,” while the second paragraph alleges that appellant himself committed the murder for remuneration, namely, the proceeds of his mother’s estate.

The State ultimately proceeded under the theory embodied in the second paragraph of the indictment. This is reflected in the application paragraph of the jury instruction applying the law to the facts which states:

“Now, therefore, if you find from the evidence beyond a reasonable doubt that on or about October 15, 1975, in Harris County, Texas, the defendant, MARKHAM DUFF-SMITH, did intentionally cause the death of GERTRUDE ZABO-LIO by strangling her with a panty hose, for remuneration or the promise of remuneration, namely, proceeds from the estate of GERTRUDE ZABOLIO, in that the defendant, MARKHAM DUFF-SMITH, acting with specific intent to promote or assist the commission of this offense, and for remuneration, namely, proceeds from the estate of GERTRUDE ZABOLIO, solicited, encouraged or directed WALTER WALDHAUSER to commit this offense and WALTER WAL-DHAUSER, acting with specific intent to promote or assist commission of this offense, solicited, encouraged or directed PAUL MACDONALD to commit this offense, and PAUL MACDONALD, acting with specific intent to promote or assist commission of the offense, solicited, directed, or encouraged, aided, or attempted to aid ALLEN WAYNE JANECKA to commit the offense, and that on or about October 15, 1975, in Harris County, Texas ALLEN WAYNE JANECKA intentionally caused GERTRUDE ZABOLIO’s death by strangling her with a pantyhose, for remuneration or promise of remuneration, namely, money, then you will find the defendant, MARKHAM DUFF-SMITH guilty of capital murder, as alleged in the indictment.”

In his fifth ground of error, appellant complains that the trial court erred in denying his motion to quash the indictment for insufficient notice. Notice was purportedly insufficient because, “The indictment, read as a whole did not give the appellant notice that the state intended to prove that the appellant committed capital murder by hiring Waldhauser to commit the offense and was criminally responsible for the acts of Waldhauser, who was responsible for the criminal acts of Paul MacDonald, who was responsible for the acts of Allen Wayne Janecka.”

Appellant was convicted as a party to the offense. See V.T.C.A. Penal Code, Sec. 7.02(a)(2). The current Penal Code provides, in Sec. 7.01(c), that:

“All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”

In Pitts v. State, 569 S.W.2d 898, 900 (Tex.Cr.App.1978), we considered a question virtually identical to the one appellant now raises, and stated:

“In the new penal code, the legislature eliminated the distinction between principals and accomplices and the attendant complexities in drafting indictments. Under the former code it was not necessary to allege the facts to show that a defendant was a principal; a principal offender could be charged directly with the commission of the offense although it was not actually committed by him; [citations omitted]; and V.T.C.A. Penal Code, Sec. 7.01(c) now plainly requires that we hold a party to an offense may be charged with the offense without alleging the facts which make the defendant a party to the offense and criminally responsible for the conduct of another. If the evidence supports a charge on the law of parties, as it does here, the court may charge on the law of parties even though there is no such allegation in the indictment.”

Pitts has been repeatedly upheld by this Court. Meanes v. State, 668 S.W.2d 366, 372 (Tex.Cr.App.1983); English v. State, 592 S.W.2d 949 (Tex.Cr.App.1980). Appellant’s fifth ground of error is overruled.

Appellant’s sixth ground of error essentially rephrases his fifth. He avers that the jury charge is fundamentally defective because in naming appellant’s accomplices it enlarges upon the indictment in violation of Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). The rule established in Pitts v. State, supra, applies whether objection is made to the jury charge, the indictment, or both. Appellant’s sixth ground of error is overruled.

In his first and second grounds of error, appellant avers that two veniremen were improperly excused in violation of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

With respect to venireman Harold C. Boyd, it is undisputed that appellant made no objection whatsoever to his being excused at the time of the voir dire. Appellant points, however, to a pretrial motion, allegedly denied by the trial court, which, he asserts, sufficed to preserve error.

The Motion to Restrict The Prosecutor’s Challenge Of Capital Veniremen Because Of The Influence Of The Mandatory Sentence Upon Fact Determinations reads, in pertinent part, as follows:

“II.
“The defendant respectfully moves this court to restrict the prosecution’s challenges for cause based on the provisions of Section 12.31(b), P.C., under which a juror can be disqualified when the mandatory sentence of death or life imprisonment would influence his deliberation as to any fact issue.
“HI.
“The defendant further moves that this Honorable Court require the prosecution to go beyond merely asking the prospective jurors to swear under oath that their knowledge of the mandatory penalty of death or life imprisonment would not affect their judgment on any issue of fact, and that the court require the prosecution to establish as a predicate to a challenge for cause:
“That the juror unequivocally would be influenced in his factual determinations by his knowledge of the mandatory sentence, and
“That the juror, regardless of his personal feelings could not set aside such feelings and could not abide by the law and the court’s instructions governing the range of punishment allowable for the crime of capital murder.

V.T.C.A. Penal Code, Sec. 12.31(b) provides that:

“Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

In Adams v. Texas, supra, the United States Supreme Court held that Sec. 12.-31(b), supra, can be used to exclude veniremen whose views on capital murder make them unable to follow the law or obey their oaths. But the statute cannot be used to exclude prospective jurors on broader grounds, based on their general opinions concerning the death penalty.

Assuming arguendo that appellant’s pretrial motion matched his ground of error raised on appeal, appellant has failed to preserve error.

This Court has long held that the failure to object to the improper exclusion of veniremen waives that right and such exclusion cannot be considered on appeal. Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980); Burks v. State, 583 S.W.2d 389 (Tex.Cr.App.1979). We reiterated this rule in White v. State, 610 S.W.2d 504 (Tex.Cr.App.1981) even though the defendant had filed a pretrial motion challenging the statutory oath found in Sec. 12.31(b).

Appellant gave no indication during voir dire that he was displeased with the exclusion of venireman Boyd. Yet under his theory he can sit back and raise the issue of that exclusion on appeal, simply because of the existence of a pretrial motion ruled on two months earlier. Appellant proffers no rationale of trial strategy or tactics that would justify failure to object, during voir dire, to the exclusion of a capital venireman. He is obviously not in the position of a defendant who litigates a confession or search issue at a pretrial hearing but who does not want to raise such an objection in front of the jury at trial. See Riojas v. State, 530 S.W.2d 298 (Tex.Cr.App.1975); Harryman v. State, 522 S.W.2d 512 (Tex.Cr.App.1975). We find nothing in this situation that takes this case outside the boundaries of our general rule that the litigation of a pretrial motion does not automatically preserve error. See Armitage v. State, 637 S.W.2d 936 (Tex.Cr.App.1982); Basham v. State, 608 S.W.2d 677 (Tex.Cr.App.1980); Hubbard v. State, supra.

Appellant failed to preserve for review the question of Boyd’s exclusion.

With respect to the exclusion of ve-nirewoman Sarah Nagler, appellant asserts that he made a proper objection during voir dire.

Nagler was examined at length by the court and attorneys for each side. She was unable to say definitely that she could put aside her feelings against the death penalty and answer the punishment issues according to the court’s instructions. Finally, the following occurred:

“THE COURT: No. We are coming to the source for our information.
“So the question of whether or not you could follow your oath in answering these questions or whether or not you would answer one of them contrary in resolving the conflict between your conscience and your oath so as to avoid the death penalty, even though you were convinced that the answer should be yes. That’s where it comes down to.
“What would you do under that circumstance?
“MS. NAGLER: I’d come back to — I don’t know.
“THE COURT: Do we have a challenge?
“MR. ARNOLD: Yes.
“THE COURT: Do you have any more questions?
“MR. BLAINE: What was her answer?
“THE COURT: She said she didn’t know.
“MR. BLAINE: I don’t think that’s sufficient for challenge.
“THE COURT: I think it probably is under the circumstances.
“MR. BLAINE: Let me go back again, Ms. Nagler. You impress upon me as being a woman of your convictions, and I don’t doubt that. If you took an oath to do something, you’d do it just like if you had to take an oath to tell the truth, so help you God, as a witness, then you would tell the truth under your oath. Again, if you took an oath that a true verdict render, that you would do it.
“MS. NAGLER: I hope I would tell the truth.
“MR. BLAINE: Right. But again, of course, as I say, I know and I think again I know what you mean; you just don’t want to be put in the position of doing it.
“MS. NAGLER: I would rather not be put in that position.
“MR. BLAINE: You realize if we had to select people down here that wanted to serve on this jury, then we probably would be in a bad way. People that come down who want to serve usually have some ulterior motive for wanting to serve. We would think people who don’t want to serve are the people who ought to serve on juries, recognizing that it is a civic responsibility, and I don’t know anybody who could determine these issues any better than you could.
“Again, are you telling me that if you took an oath, that you would a true verdict render according to the law and the evidence and that maybe you would violate that oath knowingly?
“MS. NAGLER: Yes, I would uphold the oath to the best of my — it’s the other factor, it’s the conscience.
“MR. BLAINE: The only—
“MS. NAGLER: What more can I tell you?
“MR. BLAINE: The only way I know that your conscience would affect you is maybe you would want a little more evidence than somebody who already believes in the death penalty and is anxious to give it. Now, that’s what the Supreme Court says. It doesn’t disqualify you just because it may affect your deliberations. It will not disqualify you. Only if it will affect them to such an extent that you would violate the oath you take.
“MS. NAGLER: Well, and this is what I have been saying all along what might happen, not knowingly—
“MR. BLAINE: Well, maybe you—
“MS. NAGLER: Emotional.
“MR. BLAINE: Basically in law, you have to knowingly and intentionally commit an act to be guilty of some law violation, so you would have to knowingly violate your oath. Would you knowingly and intentionally violate your oath just to—
“MS. NAGLER: Knowingly and intentionally—
“THE COURT: Now, you know you are going to have a conflict between your— you are going to have a conflict between your oath and your conscience. How are you going to resolve that conflict? Put your conscience aside and follow your oath or deliberately answer one of them wrong to resolve that conflict?
“MS. NAGLER: How does one know? In other words, isn’t there a rationalizing that takes over so that while we can justify something to ourselves, oh, I did this under oath, but, on the other hand, I am sort of slanted where emotions or feelings take it over. In order to avoid something that way, no.
“THE COURT: That’s why we devised this. It’s the most objective way of arriving at an answer that can be absolutely unemotional.
“MS. NAGLER: Yes, sir. I think we are going — all right. I think we have reached the point where we are dealing a little bit in semantics. I am sort of — I don’t know, I have got to leave it up to you. I have got mixed feelings about it.
“THE COURT: Are you saying you don’t know how you would react or how you would resolve that conflict?
“MS. NAGLER: Exactly.
“THE COURT: Well, I take it that when I asked you a question, if you could put your conscience aside for a moment and just follow the law as I give it, and if you don t know that you could do that, then I am going to excuse you.
“MS. NAGLER: I am saying who knows what takes over?
“THE COURT: You do for you.
“MS. NAGLER: Okay.
“THE COURT: Fine. And you don’t know?
“MS. NAGLER: No. I have very mixed feelings.
“THE COURT: On how you would resolve it?
“MS. NAGLER: That’s right.
“THE COURT: You are excused. You may be excused.
“MS. NAGLER: As much as I would like to do my duty ...
“(Whereupon, Ms. Nagler was excused.)”

Appellant maintains that his counsel’s remark, “I don’t think that’s sufficient for challenge,” constituted a proper objection. Counsel’s statement made at an earlier time in the examination did not even rise to the level of a general objection. It was followed by numerous questions by counsel for appellant and the court. No objection was voiced when Nagler was excused by the court. Appellant’s first and second grounds of error are overruled.

The judgment is affirmed.

CLINTON, J., concurs in the result.

TEAGUE, J., dissents to disposition of Ground of Error No. 5.

      . The record reflects that Gertrude Zabolio was married to Dow Zabolio.

      . In reality, Dow Zabolio was in Austria.

      . Prior to this time, Janecka was informed that the victim's son was paying for the murder but he had not been told that the son was called Duff.

      . Appellant was the adopted child of the deceased and her first husband. His older sister was the natural child of the couple.

      . The deceased’s death was originally ruled a suicide. Two purported suicide notes were found in her bedroom and, in addition to the panty hose tied around her neck, a "practice” panty hose, tied into a loop, was found in a dresser drawer.

      . Not all of the information allegedly told to Chaline by appellant was consistent with the testimony ultimately given by MacDonald.

      . In McManus there was a dispute as to whether certain of the testimony on remuneration came from accomplice or non-accomplice witnesses. Nevertheless, we found that the testimony delineated above was sufficient by itself to corroborate on the issue of remuneration.

       Until the following day, when he asked for a mistrial.

      . Both the transcript and the statement of facts show that the motion was granted on April 8, 1981. Voir dire began on July 6, 1981. The voir dire of the two veniremen in question began on July 27, 1981.

      . For examples of exceptions to the general rule see Cartwright v. State, 527 S.W.2d 535 (Tex.Cr.App.1975); Riojas v. State, supra; Harryman v. State, supra.

      . Appellant’s trial took place over a year after the decision in Adams v. Texas, supra, was rendered.


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

text:
    Joseph Paul TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 69221.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 16, 1985.

      Dave P. Dolezal, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Matthew Dekoatz, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W.C. DAVIS, Judge.

Appellant was convicted of capital murder. The jury answered the punishment issues affirmatively, and punishment was assessed at death.

Appellant raises four grounds of error, including a contention that the trial court erred in overruling his motion to suppress his confession. Appellant contends that prior to the time he was informed of his Miranda rights and his rights under Art. 38.22, Y.A.C.C.P., he was interrogated while in custody. He argues that information elicited at that time and after the warnings were given should have been suppressed. We will address this contention first.

During the early morning hours of October 7,1980, Kathleen Wilson was strangled at the Winchell’s Donut Shop where she worked as a baker. United States currency, which had been placed in the shop’s cash drawers at closing time on October 6, 1980, was missing when the offense was discovered.

John Stevens Sr. testified that at about 5:30 or 6:00 o’clock on the morning of October 7, 1980, he and his wife had been awakened by their dogs barking at something outside the fence of their front yard. They looked out the window but saw nothing strange. Later that morning Stevens went out to get the newspaper and noticed “a whole mess of clothes” in his garbage can, which was located near the front-yard fence, including: a shirt which looked only slightly worn, a pair of black pants, a mul-ti-colored sweater-jacket, a pair of short boots which zipped up the side, a pair of brown leather work gloves, and one dark sock. Stevens and his wife knew the clothes were not theirs and, recollecting having heard on the radio about the police looking for something, Stevens called the police and gave them the clothes.

Detective Alfredo Bonilla testified that he investigated Kathleen Wilson’s murder. He said that the morning of the murder he spoke with Laura Iaeger, the manager of the donut shop, and asked her to come to the police station and discuss the case. She gave him the job applications of past and present employees. During the day, several employees who had been brought to the station gave statements. After talking to those people and Iaeger, Bonilla compiled a list of all the people who had worked at the Winchell’s Donut Shop within the past few months. By that night Bonilla had contacted all but two or three of the people on the list. He and another detective went to talk to appellant, who, as a former employee, was on the list, while two other detectives went to talk to other people.

Bonilla stated that, late in the afternoon of October 7, he had learned that a patrol car had turned in some clothing found in a garbage can located at a residence fairly close to the shop. Before he left the police station to try to contact people on the list, he looked at the clothing and the black military-style boots and noticed that the boots had the brand name “Tong Young” marked on them. At that time there was nothing to connect the clothes to the offense.

Appellant lived nearby, apparently on the same block in which the clothes were found. He answered the door when the detectives knocked. Bonilla identified himself and his partner and told appellant they were investigating the murder of a baker at Winchell’s Donut Shop. Bonilla told appellant that they knew he was a former employee and wanted to talk to him to see if he had any information that would be helpful. Appellant asked the detectives to come into the house and told them that he had worked there but had quit. Bonilla said that all the photographs and material were at the police station and he asked appellant if he would go with them to the police station to look at some photographs and talk with them about some people. Appellant agreed, saying that he would do anything he could to help. He told Bonilla he had no money or gasoline and asked if it was all right if he rode with them and if they could bring him back later. Bonilla agreed, and they drove to the station.

Bonilla and appellant went to Bonilla’s office to talk. Two other officers were in and out of the office during the conversation. Bonilla testified that at that time appellant had not become a suspect, that it had been a normal interview to obtain information about the case — just like the ones he had conducted with everybody else who had been employed, there at one time or another.

Bonilla began by asking him when he had been employed and why he had quit. Bonilla said that appellant liked to brag and that during the course of. the conversation appellant told him that he had gone into the service after he had been working and that he had been stationed in Korea. He also said that he had bought some real nice suits over there for $25, and that he had also bought a pair of nice boots in Korea which had a brand name Tong, but that he could not remember the second part of the name. As soon as he said this Bonilla became suspicious of appellant because he remembered that the boots found in the garbage can carried the name “Tong Young.” At that point Bonilla left the office, spoke to his partner, and told him that he thought appellant might have some involvement in the case and that they had better advise him of his rights to silence and to representation by an attorney.

Bonilla advised appellant of his rights, gave him the Miranda card to read, had him initial the card after he had read it, and then read him the warning imprinted at the top of their confession form. Appellant stated that he understood his rights and that he chose to waive them, and initialed the written waiver.

Appellant then made a three-page confession in which he stated that he had called the donut shop about 3:15 a.m., pretending to be an employee from another Winchell’s and asking to borrow some supplies. He then went to the donut shop, knocked, and Kathleen Wilson — whom he did not know— let him in. He told her he was a former baker there and that he had called and made the supply request as a joke, expecting to see the manager, whom he did know. Wilson told appellant that, although she had told him on the phone that the manager would be in soon, she had said that so that nobody would know she was alone. Appellant drank a cup of coffee and talked while Wilson worked. He said Wilson told him about her divorce and that they hugged and kissed. He said that he then went home and went to sleep until about 7:30 a.m. when he saw on television that a baker had been killed in the area where the donut shop was located. He knew he would be the main suspect so he shaved off his mustache and dumped the clothes he had been wearing in the garbage can. Then appellant stated that he had had intercourse with the victim and that he had gone to the donut shop with the intention of robbing and killing her, had tied her hands behind her back, strangled her, and had taken money from the cash drawers.

Appellant initialed each page of the confession. Included on the third page was a paragraph stating that appellant’s rights had been read to him, and that he had read them, understood them, and chosen to waive those rights and voluntarily make the three-page confession that he had made. The paragraph also stated that appellant was fully aware that the offense he had committed was capital murder, punishable by life imprisonment or death. Appellant read the confession and signed it.

Appellant testified at trial that he had understood his rights and waived those rights when he gave the statement. He said that three-fifths of the statement was true and was what he had told Bonilla, but that the last part about killing and robbing Kathleen Wilson was not true and that he did not say that.

Appellant contends that his statements made to Bonilla from the time he began talking to him at the police station up to the time the warnings were given are inadmissible because the entire interrogation was a custodial interrogation and such statements are inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also contends that the confession should have been suppressed because the pre-warning information led to it.

Custodial interrogation means “... questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612. A person need not be under “formal” arrest in order to be in custody. The facts of each case must be examined in light of the four factors delineated as the guides within which to evaluate whether a defendant was “in custody.” Those factors are: whether probable cause to arrest existed; whether the defendant was the focus of the investigation; the subjective intent of the police; and the subjective belief of the defendant. Ruth v. State, 645 S.W.2d 432 (Tex.Cr.App.1979); Newberry v. State, 552 S.W.2d 457 (Tex.Cr.App.1977); Ancira v. State, 516 S.W.2d 924 (Tex.Cr.App.1974).

An examination of these factors demonstrates that appellant was not in custody at the time the pre-warning statements were made. At the time appellant began talking with Bonilla he was simply one of many former employees questioned as part of the investigation. Appellant was one of the last people contacted. Bonilla certainly did not have probable cause to arrest him, indeed, Bonilla did not know that the boots and clothes found in the garbage can had any connection with the murder or with appellant. Thus, the subjective intent of the police, shown by Bonil-la’s statements and supported by the facts of the investigation, demonstrate that appellant was simply being interviewed just as the other employees had been, as part of the fact-finding process. In that sense appellant may have been a focus of the investigation, but he was certainly not the focus of the investigation. He was a former employee and had been out on his motorcycle late that night. Beyond that, the police knew little else. Finally, appellant agreed to help police in any way he could, asked them for a ride to the police station, and gave no indication he thought he was not free to go.

“The ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest. Mathiason, infra, 429 U.S., at 495, 97 S.Ct., at 714.” California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983).

In the instant case there was no such restraint. Appellant agreed to go to the police station and help in any way that he could. He even asked the detectives for a ride to the station and back from there. The fact that he was then interviewed at the police station does not make the event a custodial interrogation, although it is a circumstance to be considered.

In Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) the defendant voluntarily went to the police station at the police officer’s request. He was told he was not under arrest and that the officer wanted to talk to him about a burglary. The officer told him (falsely) that his fingerprints had been found at the scene. The defendant then admitted that he had taken the property. The officer advised the defendant of his rights and taped a confession. The defendant was permitted to go home and the officer told him he was referring the case to the district attorney for him to decide whether criminal charges should be brought. The Supreme Court held that the defendant was not in custody “or otherwise deprived of his freedom of action in any significant way.”

The instant case is stronger than Mathi-ason because the defendant in that case was “more of a suspect” than appellant was in the instant case.

Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

Mathiason, 429 U.S., at 495, 97 S.Ct. at 713-14.

The instant case is analogous to Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971). Police did not initially single out appellant, but simply wished to talk to him as one who might have some helpful information. Only when appellant said that he had a pair of Korean boots did Bonilla become aware of the probability that appellant might be involved, and he immediately undertook to advise appellant of his rights. Although not stated specifically, the indication from the record is that appellant was not restrained and was free to leave until Bonilla realized the likelihood of his involvement with the murder. Appellant was not in custody when he began talking with Bonil-la. His statements made prior to the warnings were admissible.

Neither Miranda nor Art. 38.22, V.A.C.C.P., prohibits the introduction of appellant’s confession. His contention at trial was that he had never told Bonilla the part of the confession admitting to killing and robbing the victim. The court found otherwise and Bonilla’s testimony supports that finding. The confession was properly admitted. The ground of error is overruled.

Appellant argues that the court erred in excluding the testimony of defense witness Thomas Hughes. Hughes was a former assistant district attorney. In the bill of exceptions Hughes testified that he had been an assistant district attorney in El Paso and several other counties for a total of about 2½ to 3 years. He said that in that time he had tried 35 to 40 cases where confessions were admitted into evidence. He looked at appellant’s confession and said that the form of the confession was not like those he had seen and that it was unusual because it was exculpatory for a page and three-fourths and then incriminating for one small paragraph. He characterized the confession as “flaky.”

In his brief, appellant states that “in an effort to bring to the jury some evidence so as to allow them to better to understand the methods and procedures for taking depositions (sic) and to understand the peculiar format and language of the instant deposition, (sic) [he] attempted to have the testimony of Thomas Hughes.” The State replies that Hughes was not qualified as an expert and that his testimony did not relate to a subject on which an expert would be of assistance to the jury.

The court found, as a matter of law, that the confession was voluntary. The jury had to decide if appellant had been advised of his rights; if he had intelligently and voluntarily waived those rights; and if he had made the statement voluntarily. The inference appellant was obviously trying to make was that the police had changed the confession. Appellant, himself, testified that everything about the confession happened the way Bonilla had said it did, that he had understood and waived his rights, and that his statement was voluntary, except that he claimed that he did not say he had killed and robbed the victim.

First, Hughes was not qualified as an expert. Holloway v. State, 613 S.W.2d 497 (Tex.Cr.App.1981). Second, Hughes’ testimony would not have aided the jury in determining whether to believe Bonilla or appellant as to the “true” contents of the confession. The jury was perfectly capable of determining the credibility of the witnesses on their own. The testimony was properly excluded. The ground of error is overruled.

Next, appellant contends that the court erred at the punishment stage by admitting the testimony of Officer Quiroz. At the punishment stage, the State called Quiroz and Officer Feverson to testify about appellant’s attempted escape from jail.

Quiroz was a detention officer working in the El Paso county jail. He testified that on March 22,1981, at about 9:10 p.m., he was assaulted on the sixth floor of the jail. Four inmates grabbed him and struggled with him. He also saw another inmate, whom he could not identify, trying to unlock the door to the sun porch, which led to the roof. One of the four held a shank to his eye, while another held a butter knife against his ribs. Quiroz was stabbed in the leg during the struggle and then fell into the elevator. Quiroz specifically, named each of the four inmates with whom he struggled, said that he could not identify the person at the door, stated that he did not see appellant, and that appellant was not involved in the assault. Quiroz also said that the roof looked down on Overland Street.

Officer Feverson, a police officer for the El Paso Police Department, testified that he had worked the 3:00 to 11:00 p.m. shift on March 22, 1981. Just before he got off duty that night, he and his partner drove onto Overland Street and he saw a person coming down the side of the building from the roof, on a rope. He arrested that person, whom he identified as appellant, and found a screwdriver in his back pocket. The other escapees were apprehended on the roof.

In its brief, the State simply says that evidence of an escape is admissible and that Feverson’s testimony, admitted without objection, “was in agreement” with Quiroz’s testimony. Feverson’s testimony shows that appellant was caught escaping from the roof and that others were also caught on the roof at the same time. Fe-verson’s testimony does not show how many other people were caught, or whether the four whom Quiroz identified as his assailants were among those caught. The inference is that appellant was the unidentified fifth inmate trying to unlock the sun-porch doors, and was, therefore, acting in concert with the inmates who assaulted Quiroz, although he was not, according to Quiroz’s testimony, among the group that assaulted Quiroz. No testimony was offered to actually link appellant with the named four assailants; there was no showing whether they were the persons apprehended on the roof.

During argument at the penalty stage the State discussed the escape testimony very briefly, noting only that appellant had been caught with a screwdriver that had been modified to resemble an ice pick. The rest of the argument was directed to the murder and robbery, the planning and carrying out of the crime, and the method used to commit the crime.

The State is correct in asserting that proof of appellant’s escape is admissible at the punishment stage. Smith v. State, 683 S.W.2d 393 (1984); May v. State, 618 S.W.2d 333, 342 (Tex.Cr.App.1981); Rumbaugh v. State, 589 S.W.2d 414, 418 (Tex.Cr.App.1979). However, Quiroz’s testimony does not implicate appellant in the assault or as acting in concert with the assailants. In fact, it does not even place appellant at the scene. Feverson’s testimony does show that appellant was caught while escaping, but it does not link appellant with the assault on Quiroz. Fever-son’s testimony was admissible. Smith, supra, May, supra. The inference the State would like to make to link appellant with the assault is simply not presented by the evidence. Quiroz’s testimony should not have been admitted because no link to appellant was shown.

Although we hold that, because no link was shown connecting appellant to the assault, Quiroz’s testimony should not have been admitted, we find the admission to be harmless beyond a reasonable doubt, because Quiroz clearly stated and reiterated several times that appellant was not involved in the assault and that he never saw appellant. He even named the four inmates who had assaulted him. It was clear that appellant was not involved in the assault itself. The evidence revealed an extraneous offense committed by others and not involving appellant. Because such testimony was irrelevant it should not have been admitted, but for the same reason it was harmless: appellant was not involved. Mitchell v. State, 650 S.W.2d 801, 811 (Tex.Cr.App.1983); see also Lindley v. State, 635 S.W.2d 541, 545 (Tex.Cr.App.1982). The ground of error is overruled.

In his last ground of error appellant contends that the trial court erred in overruling his motion to quash the indictment. While appellant filed a motion to quash stating that the indictment failed “to allege the manner of ownership and does not allege which statutory alternative, relating to ownership, upon which the State will rely”, it appears from the one sentence “argument” to the trial court and from his brief that appellant’s contention is that the motion to quash should have been granted because “it is impossible to rob someone who is not present and as such the indictment was defective.”

First, we note that in the face of a motion to quash based upon a claim of insufficient notice, we examine the indictment on its face, and in light of the presumption of innocence. Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1981). The fact that the evidence may later show sufficient facts has no bearing on a motion to quash claiming insufficient notice. Jeffers, supra. Appellant’s claim on appeal is that the owner of the property was not present during the murder and therefore the allegations were not correct. Since we do not consider the evidence presented at trial in evaluating appellant’s claim, appellant’s argument is without merit.

The indictment alleges, in pertinent part, the following:

[Appellant] did then and there unlawfully intentionally and knowingly cause the death of an individual, KATHLEEN WILSON, by placing a rope around the neck of KATHLEEN WILSON and strangling the said KATHLEEN WILSON and the said JOSEPH PAUL TURNER did then and there intentionally and knowingly cause the death of the said KATHLEEN WILSON in the course of committing the offense of Robbery, to-wit: the said JOSEPH PAUL TURNER on or about the 7th day of October, 1980, in El Paso County, Texas, did then and there unlawfully, intentionally and knowingly while in the course of committing theft, to-wit: the said JOSEPH PAUL TURNER, did then and there intentionally and knowingly appropriate property, to-wit: currency of the United States, from LAURA IAEGER, without the effective consent of the owner, LAURA IAEGER, and with intent to deprive the said owner of said property, did with intent to obtain control of the said property, the said JOSEPH PAUL TURNER, did then and there intentionally and knowingly cause bodily injury to KATHLEEN WILSON by strangling the said KATHLEEN WILSON with a rope,...

From the standpoint of notice requirements the indictment is sufficient to apprise appellant that he was accused of murdering Kathleen Wilson in the course of committing theft of property belonging to Laura Iaeger by robbing Kathleen Wilson. The indictment is sufficient in the face of appellant’s motion to quash. The ground of error is overruled and the judgment of the trial court is affirmed.

CLINTON and TEAGUE, JJ., dissent.

TEAGUE, Judge,

dissenting.

I respectfully dissent to the majority’s holding in this death penalty case that the error of the trial court, in admitting into evidence Quiroz’s testimony, was harmless beyond a reasonable doubt. I believe that the error, as to the punishment stage of appellant’s trial, was not harmless beyond a reasonable doubt.

Under this Court’s past decisions, before error can be deemed harmless, it must be shown that there is not a reasonable possibility that the error contributed to the defendant’s conviction or to the punishment that was assessed. The test to determine whether the error is harmless is not whether a conviction could have been had without the erroneously admitted evidence or testimony, or that the punishment that was assessed could not have been assessed without the erroneously admitted evidence or testimony, but, instead, is whether there is a reasonable possibility that the erroneously admitted evidence or testimony might have contributed either to the finding of guilt or the punishment that was assessed. See, for example, Garrett v. State, 632 S.W.2d 350, 354 (Tex.Cr.App.1982).

Art. 37.071, Section (c), V.A.C.C.P., expressly provides that where the jury is called upon to answer special issue number 2, see Art. 37.071, Section (b)(2), supra, in the affirmative, the State must prove such issue beyond a reasonable doubt. Special issue number 2 reads as follows: Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. In this instance, the jury answered the question in the affirmative. Thus, the question that this Court must decide is whether there is a reasonable possibility that the erroneously admitted testimony of Quiroz affected the jury’s decision to answer special issue number 2 in the affirmative.

I ask the majority: How can what it has determined to be error be harmless beyond a reasonable doubt as to the punishment stage of this capital murder case? More specifically, how can such error be harmless beyond a reasonable doubt as to the jury’s decision to answer in the affirmative the second or the probability special issue, that was required to be answered by the jury beyond a reasonable doubt before the punishment of death could be assessed the appellant?

This Court in Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982), after finding that the evidence was insufficient to sustain the jury’s affirmative answer to the probability question, reformed the defendant’s sentence to life imprisonment. In so holding, this Court stated the following: “To hold that the facts of this offense, standing alone, would support such a verdict, would mean that virtually every murder in the course of a robbery would warrant the death penalty. Such construction would destroy the purpose of the punishment stage in capital murder cases, which is to provide a reasonable and controlled decision on whether the death penalty should be imposed, and to guard against its capricious and arbitrary imposition.” (Citations Omitted.) (603).

The majority does not refer us in its opinion to any other evidence or testimony that might reflect or be considered relevant to the issue of future violent conduct by appellant, and I am unable to find any such evidence or testimony in the record on appeal.

In Wallace v. State, 618 S.W.2d 67 (Tex.Cr.App.1981), this Court also held that the evidence was insufficient to sustain the jury’s affirmative answer to special issue number 2. Before reforming the death sentence that was assessed in that cause to life imprisonment, this Court stated the following: “Specifically, there was no evidence of prior convictions, no prior acts of violence, no character evidence, no psychiatric evidence. Although the circumstances of the murder may be sufficient to support a death penalty ..., this is not such a case ...” (69). In this instance, there is also no evidence of prior convictions, prior acts of violence, character evidence, or psychiatric evidence that might relate to the appellant.

Without the erroneously admitted testimony of Quiroz, that reflects a violently conducted escape from the El Paso County Jail, I believe that there is either a reasonable doubt that the evidence is insufficient to sustain the jury’s affirmative answer to the second special issue, or that there is a reasonable possibility that the erroneously admitted testimony contributed to the decision of the jury to answer special issue number 2 in the affirmative.

Thus, the error was harmful, not harmless. The majority errs in holding that the error was harmless.

I respectfully dissent to its holding.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Although there is some reference to March 21 in the record, it is apparent from reading all the testimony that all parties were referring to March 22, 1981.

      . A homemade weapon.