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

text:
    James Dean REYNOLDS, Relator, v. Hon. Charles DICKENS, Respondent.
    No. 2-84-239-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 27, 1985.

      Alley & Alley, Richard Alley, Fort Worth, for relator.
    Tim Curry, Dist. Atty., and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for respondent.
   OPINION

JOE SPURLOCK, II, Justice.

By petition for writ of mandamus, Relator James Dean Reynolds, seeks to have this Court vacate the orders of the trial court which refused to grant all of Relator’s motions for discovery in a criminal case. Relator is under indictment for Aggravated Sexual Assault and it is shown that the State intends to use in evidence upon his trial a videotaped interview with the alleged child victim under the purview of TEX.CODE CRIM.PROC.ANN. art. 38.-071 (Vernon Supp.1984). Our previous opinion of December 20th, 1984 is withdrawn.

In his pre-trial motion, Relator requested access, inspection and copying of such videotape in the following three particulars:

1. That he be permitted, at his own expense, to make a copy of the videotape, or;
2. That Relator’s expert witness, a psychologist, be permitted to view the videotape along with defense counsel, or;
3. That the expert witness be permitted to view the tape simultaneously with the jury view and thereafter be excused from the witness rule so that he could testify.

All of the above requests were denied. However, the court was willing to order that the relator’s attorney, alone, be permitted to view the tape with a prosecutor. This original proceeding was then filed in this Court.

The important facts occurring below need to be set out in order to understand the need for clarification in this new area of discovery. On November 2, 1984, Steve Laird and Richard Alley, counsel for relator, and Scott Wisch, Assistant District Attorney for Tarrant County, appeared at a pretrial hearing at which the following exchange took place:

“THE COURT: I believe the next motion in this file is the Defendant’s Motion to Produce.
“MR. LAIRD: Yes, Your Honor. This has to do with the videotape itself that was made by the direction of the Texas Department of Human Resources. This videotape is in possession of the District Attorney’s Office, and we do not feel that it’s privileged in any way. We were given an opportunity — I say, we. I was given an opportunity right after I was hired, to view that several months ago. I have since requested another opportunity to view the videotape which has been denied. I have asked if a potential witness in this case, Dr. Swen Helge, a child psychologist could view the videotape. That also has been denied. In order to properly prepare this case, we need a copy of the videotape.
“The District Attorney’s Office has a copy and they have access to it 24 hours a day, and if they want to come up here and view it sixteen times a day, they are able to, and for us to view it one time before trial and maybe two over the course of several months, and not allow Dr. Helge to view it since I have been retained on this case, is going to deny the Defendant due process, and it’s going to prevent us from adequately preparing this case.
“THE COURT: Well, you are getting back to Dr. Helge again, and you haven’t given me any authority or any reason why an independent psychiatrist should have any access to a piece of the State’s evidence.
“MR. LAIRD: Your Honor, I only pointed that out as a coincidental request. The main request which I have made heretofore and which I am making today, is to allow access to the videotape by the Defense attorneys.
“THE COURT: Well, I have already ordered that. Do you want a time?
“MR. LAIRD: Well, Your Honor, if I understand the Court correctly, you have allowed us one opportunity next week, the week before trial, to view it. We are not going to be in a position to properly prepare for the case unless we are able to view it on more than one occasion. We may need to view it several times, because as the Court is well aware, there might be things that are missed upon first viewing that might be picked up on the second or third viewing.
“That is the entire case that the District Attorney’s Office is alleging against the Defendant, and they have got possession of the tape. They can view it 25 times a day if they want to; run it in slow motion, back and forward, backwards, and we are not asking for anything more than what the District Attorney’s Office has access to. We are just asking to be put on equal footing.
“THE COURT: Are you prepared to pay for it?
“MR. LAIRD: Certainly.
“THE COURT: Do you have any law that would permit you to copy the tape?
“MR. LAIRD: This is a relatively new statute, as the Court is well aware, and the cases in this area are very limited, and I don’t believe the Court has ever addressed this particular point. But as a matter of discovery under the Code of Criminal Procedure, there is nothing about this particular case that is privileged, and under 39.41 of the Code in order to allow due process for the Defendant, we are only asking for what we feel like we are legally entitled to to properly prepare this case.
“THE COURT: Well, the law provides another method. You can call the child as a witness. But I'm going to let you see it again. The State is going to set that up. Now, there have been other video type cases? This law is new, but how about these West Wind cases. Surely there is some law on that.
“MR. ALLEY: Your Honor, may I be heard?
“THE COURT: Yes
“MR. ALLEY: On West Wind, I don’t believe there was any ruling as to whether or not they are discoverable and you can copy them. They were rulings as to whether or not they were admissible in Court. That’s the situation that we find with this same statute. There are rulings as to their admissibility. There is not a ruling as to their discoverability. So, they would be as discoverable as anything else. They are not in the nature of a statement so much of the Defendant, but they are statements of conduct and they are going to be the crux of the case. There was a case by the Texas Supreme Court called Richardson vs. Green, 27 Texas Supreme Court Journal, on page 466.
“In that case, Dr. Helge and several other psychologists were permitted to review a videotape and were able to make an expert opinion as to whether or not abuse was present and other things also as to the subjectivity of the child in response to leading questions, all of which we believe will become an issue in this particular case and will aid him in making the professional opinion that he is going to be called upon to make as a witness.
“THE COURT: Mr. Wisch?
“MR. WISCH: My response, Your Hon- or, is that the clear legislative intent of the statute is the videotape supplant the direct evidence testimony of the child victim, and the Defense never has the opportunity to have the State place its witnesses in its case in chief under oath and repeat its ease, and repeat its ease, and repeat its case. It’s only required to provide the witness available if the Defense wishes to question the witness, and this being a tape used in lieu of testimony, the State would urge the same ruling apply as would apply to any witness who would be giving direct testimony under oath.
“They are entitled to have discovery as to what that witness would say under the circumstances, but that can be fully met by allowing them to view the tape.
“MR. ALLEY: Your Honor, our final response to that would be, number one, that we are not just entitled to know what they said, but we are entitled under this statute to actually see the videotape and to use it to prepare. I do not believe the statute was there to supplant testimony, because there is no requirement that the child be placed under oath when they are videotaped. We believe in this videotape the child was not placed under oath or explained what an oath was. Furthermore, although the statute provides that we can call the child as a witness, the Court is also aware that you cannot impeach your own witness once you call them. So, that puts us in a catch twenty-two; that if we do call her for the purpose of cross-examining her to attack her testimony, that that is allowed under the statute, but prohibited by another statute.
“THE COURT: Well, Mr. Alley, I think the Court is being very liberal in permitting you to view the tape since the attorney has already seen it once; but to view it again. You are not telling me that you have a right to a witness’ statement before they get on the witness stand, are you?
“MR. ALLEY: No, Your Honor. We are not.
“THE COURT: So, it’s about the same thing, but I’m going to let you view it because this is new law. There are only a couple of cases on it here, but I’m not going to permit you to copy it or, unless you can show me some law that affects a criminal case, I’m not going to let your psychiatrist look at it. That’s the ruling of the Court.
“MR. ALLEY: Your Honor, my one further question is this: Since he is going to be an expert witness, would that exempt him from the Rule so that he could view it when the jury views it?
“THE COURT: Well, no, sir. It would not exempt him from the Rule.
“MR. LAIRD: One final point on this that I would like to make on this, is that we were looking at this in terms of discovery and not preadmissibility questions; simply discovery under the Code of Criminal Procedure, and felt that it was not distinguishable from the other items that we feel are discoverable in this matter.
“THE COURT: Mr. Laird, if I was to take what the law really is, you probably couldn’t see it at all. As I said, I think the Court is being rather liberal in letting you view it again, because there is no provision for you to view the tape to begin with under the law.
“MR. LAIRD: Do you wish us to contact the District Attorney’s Office next week to set up a convenient time?
“THE COURT: You all can work it out.
“MR. WISCH: Other than settings involving our activities on Tuesday — Wednesday afternoon?
“THE COURT: All right. I would like to view it Monday afternoon myself.”

Relator urges that art. 38.071 provides for such viewing by an expert witness, member of the “defense team”, by its language which in pertinent part states:

(7) the defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence.

Relator argues that the psychologist employed by him to assist in his defense is his agent and is included within the definition of “attorney”. In the case of Ballew v. State, 640 S.W.2d 237 (Tex.Crim.App.1980), the Court of Criminal Appeals decided a question of first impression in regard to the State’s right to discovery and utilization of reports, notes and testimony of a defendant’s psychiatrist witness as against the claim of attorney-client privilege. In holding that the attorney-client privilege extends to a defendant’s psychiatrist’s testimony, notes and reports, the Court observed that:

Given the complexities of our modern society, lawyers often cannot represent their clients effectively without nonlegal assistance. As a result, it has become generally accepted that the scope of the attorney-client privilege encompasses agents whose services are required by the attorney in order to properly prepare his client’s case. (Citations omitted.)

Id. at 239. The Court further noted that numerous sister states have so extended the attorney-client privilege. Id. at 240. We note that the attorney-client privilege has been extended to a “pre-hypnotic” interview with a defendant in a criminal case. See Burnett v. State, 642 S.W.2d 765, 769 (Tex.Crim.App.1983). Under the reasoning of Ballew and Burnett, above, and the cases cited therein, we hold that the privilege extended to a defendant or his attorney to view videotapes produced under the statute in question extends to an expert employed by the accused to assist in his defense.

Relator additionally contends, in support of his asserted discovery rights, that the right of inspection, copying or photographing of evidence, not privileged, in the possession of the State is afforded by the terms of TEX.CODE CRIM.PROC.ANN. art. 39.14 (Vernon 1983), which provides:

Upon motion of the defendant showing good cause therefore and upon notice to the other parties, the court in which an action is pending may order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.

Recently the Court of Criminal Appeals had occasion to analyze the above discovery statute with regard to tape recording of a statement, made by an accused in conversation with an acquaintance who was cooperating with police by secretly wearing a tape recorder. In that case the Court wrote:

Tape recordings of a statement by the accused are “objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action.”

Quinones v. State, 592 S.W.2d 933, 939 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980). We find no reason to distinguish between a surreptitiously recorded statement of an accused and the videotape of an interview with a child victim for the purpose of classifying the latter as discoverable. Accordingly, we hold that a videotape interview with the alleged child witness in the case at bar is an object or tangible thing within the purview of art. 39.14, and as such, is subject to being copied for good cause shown.

The State has urged that Relator cannot complain that his attorneys and his expert witness were denied access to the videotape because both of them had in fact viewed it. The record discloses that one of the attorneys in the employ of Relator had viewed the videotape over six months prior to the filing of the motion for discovery and other attorneys had viewed the tape more recently. At the earlier time, the psychologist who is now assisting in the defense viewed the videotape. That portion of the record is developed in a statement of facts of a hearing had in the trial court 10 days after the order complained of here. Facts adduced at that hearing were not before the court when it denied Relators pre-trial discovery motions but will be considered by us, as the court has not yet changed its ruling.

The sole question before us is whether in the light of our holdings regarding the proper interpretation of articles 39.14 and 38.071, the extraordinary relief of mandamus is made necessary under the facts of this case.

It has been held that mandamus to compel a court to vacate or expunge a void order is a proper vehicle for attacking discovery orders. Zenith Radio Corporation v. Hon. Harley Clark, Judge, 665 S.W.2d 804, 806 (Tex.App.—Austin 1983, no writ). Citing State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272 (1939); and Norvel & Sutton, The Original Writ of Mandamus in the Supreme Court of Texas, 1 St. Mary’s L.J. 177, 181 (1969). Further “[a]n order is deemed void when rendered by a court having no jurisdiction or authority, when the order is violative of some constitutional right of a party, or is rendered as a result of an abuse of discretion by a judicial officer.” Zenith Radio Corporation, 665 S.W.2d at 806. Mandamus will issue to correct a clear abuse of discretion by a trial court in a discovery proceeding and this is so, even when the district court’s order denies discovery rather than permits it. Barker v. Dunham, 551 S.W.2d 41, 42 (Tex.1977); Allen v. Humphreys, 559 S.W.2d 798 (Tex.1977).

The most recent expression of our Supreme Court regarding mandamus in discovery proceedings are found in Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984). There it was restated that mandamus will not issue unless a clear abuse of discretion is shown and that appellate courts will not intervene to control incidental trial court rulings when there is an adequate remedy by appeal. Id. at 572. In Jampole the Supreme Court acknowledged that the issue of whether the parties seeking mandamus had adequate remedies by appeal was not specifically addressed in the cases of Barker v. Dunham or Allen v. Humphreys, but declined to overrule those cases. Id. at 576. The Court observed further, in discussing the availability of appeal as an adequate remedy, that:

Moreover, requiring a party to try his lawsuit, debilitated by the denial of proper discovery only to have that lawsuit rendered a certain nullity on appeal, falls well short of a remedy by appeal that is “equally convenient, beneficial, and effective as mandamus.” (Citations omitted.)

Id. at 576. Such conclusion in a civil case it seems to us, would be even more sound in a criminal case. It makes little sense to argue that a new trial might be granted if an accused’s right to a fair trial is impaired when the potential for error could be corrected summarily by granting a simple request for a copy of the tape.

In the case at bar, the State suggests that a good reason “for not letting mandamus substitute for an appeal, especially when pre-trial rulings are the issue, is that later rulings during the trial may moot the mandamus.” Our reply to such suggestion is the same as that of the Supreme Court to a similar contention in Jampole, namely:

Moreover, the trial court’s willingness to reconsider does not alter the finality of its ruling. Litigants can always make new arguments that may change the trial court’s mind. This does not, however, preclude complaining of the action already taken. It is the court’s order that counts, not the stated reasons or oral qualifications. (Citations omitted.)

Id. at 574. We therefore conclude that if there is a clear abuse of discretion in the instant order, Relator has no adequate remedy.

We now consider whether the trial judge clearly abused his discretion by denying the requested discovery. The ultimate purpose of discovery is to seek truth, so that litigation may be decided by what the facts reveal, not by what facts are concealed. See Jampole, 673 S.W.2d at 573. Here, the State’s reason for opposing the Relators right to copy the videotape was articulated by the prosecutor at the November 2nd pretrial hearing when he stated:

My response, Your Honor, is that the clear legislative intent of the statute is the videotape supplant the direct evidence testimony of the child victim, and the Defense never has the opportunity to have the State place its witnesses in its case in chief under oath and repeat its case, and repeat its case, and repeat its case. It’s only required to provide the witness available if the Defense wishes to question the witness, and this being a tape used in lieu of testimony, the State would urge the same ruling as would apply to any witness who would be giving direct testimony under oath.
They are entitled to have discovery as to what that witness would say under the circumstances, but that can be fully met by allowing them to view the tape.

This view adopted by the State overlooks the fact that article 38.071 permits an un-sworn videotape interview of the child to be introduced as direct evidence.

Article 38.071 clearly requires that the interview be conducted by some person or persons other than an attorney for either party, that every voice on the recording is identified and that any statement elicited is not made in response to questioning calculated to lead the child to make a particular statement. We liken a visual-audible recording of such an interview to videotaped depositions of witnesses in civil eases. An additional safeguard in a civil case is that the deposition witness is sworn and faces possible penalties for perjury. No such safeguard is afforded the accused in the present videotape situation. Although, in each instance, the recordings of testimony given is admissible, that is not to say that the electronic reproduction of the event is admissible in toto, without the opportunity for objection as to any particular question or answer upon any of the time honored reasons, such as hearsay or leading and suggestive questions.

Just as is the case with videotaped depositions, the party against whom the recorded evidence is to be used ought to be in a position where he can lodge appropriate objections in a timely manner so as to allow for the deletion of the offending matter from the recording prior to the exhibition of the particular matter to the jury. The deprivation of reasonable opportunity for the Relator in this case to copy or review and evaluate the proposed videotape evidence with a view to objecting to any impropriety he might perceive, in our view is a denial of a substantial right. The interest of justice mandates that an accused have the same right to discover in a criminal case at least as much evidence as a person facing only a civil claim, and certainly not less.

In an instance where there is found to be an objectionable portion of the videotape, it seems far more appropriate that such fact be discovered, brought to the attention of the court and remedied if possible by proper, court ordered editing in preliminary proceedings rather than during trial, where an expungement of the offending material is likely to be cumbersome and frought with confusion and delay. The trial judge himself remarked, in the record, that he wished to view the videotape prior to trial.

We conclude that the order of the trial judge herein constitutes an abuse of his discretion. However, we are not to be understood as finding his action to be arbitrary, capricious or consciously indifferent to Relator’s rights, especially in the light of the absence of any guiding precedent. We find that the effect of his order is to deny a clear substantial right of the Relator which is crucial to his defense and provided for by law, and that the relief sought by Relator from this Court by this action in mandamus is proper and should be granted.

We expect that Judge Dickens will vacate his order denying Relator the right to secure a copy of the videotape at Relator’s expense and denying Relator’s psychologist expert witness to view such videotape, and we expect that he will enter an order consistent with this opinion. Should he fail to do so, the clerk of this Court is directed to issue the writ of mandamus.

All other relief requested is denied.

HUGHES, J., dissents.

WILLIAMS, C.J., retired and HUGHES, J., retired, sitting by assignment.

JORDAN, J., not sitting.

BURDOCK, J., recused.

HUGHES, Justice,

dissenting.

I respectfully dissent from the majority opinion in this original mandamus proceeding.

The relator has been indicted for three separate aggravated sexual assaults upon children and his trial on one of the causes, Cause No. 0229533D, was set for trial for November 12, 1984. At a. pretrial hearing before that trial date, the trial court denied relator’s motion under TEX.CODE CRIM. PROC.ANN. art. 39.14 (Vernon 1979) & art. 38.071 (Vernon Supp.1985), to have a videotape interview of the three children involved viewed by relator’s retained psychologist. The motion also sought a copy of the tapes to be prepared at his expense. On November 9,1984, relator filed his original petition for a writ of mandamus in this court to compel the trial court to grant his motion for his psychologist to view the tapes and to have a tape copied for his use during trial. On that same date, November 9, 1984, leave to file that petition was granted by this court and the matter was heard by this court on November 15, 1984.

On November 12, 1984, the date the case was set for trial, a second pretrial hearing during the pendency of the petition for writ of mandamus before this court, was held by the trial court, at which time the testimony of the psychologist, Arthur Swen Helge, as well as that of one of the prosecutors, was taken. A statement of facts of that November 12, 1984, pretrial hearing before the Hon. Charles Dickens, Judge of the 297th District Court, was filed in this court and is before us. That statement of facts on its face states that that hearing “was called for continuing Pre-Trial Motions, before the Honorable Charles Dickens, Judge of the 297th District Court.”

The November 12, 1984 hearing, held after the petition for writ of mandamus was filed in this court, and before it was heard by this court, was a continuing pretrial hearing and, we must assume, was held for the purpose of again trying to persuade the trial judge to grant the motion for discovery concerning the videotaped interview of the three children. At this hearing, relator’s counsel produced the psychologist, obviously for the purpose of convincing the trial judge of the necessity of his again viewing the videotape.

At this point, I deem it important to note that TEX.CODE CRIM.PROC.ANN. art. 38.071, sec. 2(a) (Vernon Supp.1985) provides that the recording of the oral statement of the child is admissible into evidence if (7) the defendant or his attorney is afforded an opportunity to view the recording before it is offered into evidence and (8) the child is available to testify.

It is admitted that on May 9, 1984, the psychologist, Arthur Swen Helge, viewed the videotapes of the interviews with all three children, along with the relator’s then attorney, David Courtade, and one of the prosecutors. Helge also at that time made extensive notes as he viewed the tapes. At the pretrial hearing on November 12, 1984, although he was asked directly twice by one of the relator’s current counsel, Richard Alley, if it was necessary to see those tapes again in order to render an expert opinion, Helge, on both occasions, would only say that “it would be helpful.” Sometime after May 9, 1984, and before the filing of the discovery motion in the trial court, Steven Laird, one of relator’s present counsel, also viewed the tapes, and at sometime during the first week of November, prior to the November 12th hearing, all three attorneys representing relator, Steven Laird, Randy Turner and Richard Alley, also viewed the tape in Cause No. 0229533D, the cause that was set for trial on November 12,1984. It is therefore clear that the trial court, in denying the motion for the psychologist to again view the tapes, or to have the tapes copied, had before it the fact that the psychologist had already once seen the tapes, and taken full notes, and that four different attorneys had also viewed the tapes, three of them shortly prior to the November 12th pretrial hearing. These are facts that relator and the majority opinion would have us ignore.

Under these facts the requirement of art. 38.071, sec. 2(a)(7) was certainly adequately met, as was sec. 2(a)(8) because the children in this case were available to testify. Moreover, sec. 2(b) provides that if the electronic recording of the oral statement of a child is admitted into evidence, either party may call the child to testify and the opposing party may cross-examine the child. How, in view of all this evidence on the pretrial hearings, we can say that the trial court abused its discretion, is difficult for me to comprehend.

The majority opinion seems to rely rather heavily on several Supreme Court cases in civil matters in support of its holding that mandamus is proper in this case. I submit that there is a considerable difference with respect to discovery procedures in civil and criminal cases. In fact, in civil cases, some of the various discovery procedures permitted are self-executing and do not require trial court ruling. In civil cases the courts have traditionally permitted broad and liberal discovery, while in criminal cases, discovery has traditionally been much more limited, and is sparingly granted, and only at the discretion of the trial court. See art. 39.14. It is emphasized that art. 39.14 says that upon motion of the defendant showing good cause, the court may order the State to produce certain items.

The issue before us, then, is simply whether or not the trial judge, under the facts of this case, abused his discretion in denying relator’s motion for the psychologist to again view the tapes of the interviews with the three children and to permit copying of the tape.

There is no mandatory duty or ministerial act involved in this case. It is clearly a question of the trial court’s discretion in a discovery proceeding. The Court of Criminal Appeals has repeatedly said that there is no general right of discovery under art. 39.14, and that such matters are committed to the trial court’s discretion. Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App.1981); Quinones v. State, 592 S.W.2d 933, 940 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980).

In Quinones, 592 S.W.2d at 940-41, the court upheld an order of a trial court refusing to allow discovery of a tape recording of the defendant’s and an accomplice’s conversation on the ground that there was no abuse of discretion. The court said that art. 39.14 makes it clear that the decision of what is discoverable is the decision of the trial court and even where, as in Qui-nones, reasons for the ruling by the trial court were incorrect, the reasons behind the trial court’s exercise of its discretion will not create reversible error if the decision itself, regardless of its purported basis, did not exceed the limits of the court’s discretion. Id. at 940; accord United States v. Agurs, 427 U.S. 97, 108-10, 96 S.Ct. 2392, 2399-01, 49 L.Ed.2d 342 (1976). The court in Quinones said that traditionally that court has declined to find reversible errors stemming from discovery motions where the defendant was not denied access to exculpatory or mitigating evidence which would have affected the outcome of the trial in his favor. See Quinones, 592 S.W.2d at 941; see also Granviel v. State, 552 S.W.2d 107, 119 (Tex.Crim.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977); Love v. State, 533 S.W.2d 6, 9 (Tex.Crim.App.1976).

Texas has long followed the rule which requires the trial court to permit discovery only if the evidence sought is material to the defense of the accused. See Stone v. State, 583 S.W.2d 410, 415 (Tex.Crim.App.1979) and Frank v. State, 558 S.W.2d 12, 14 (Tex.Crim.App.1977). In the latter two cases, the Court of Criminal Appeals defined “materiality” under Texas law in due process terms, employed by the Supreme Court of the United States in Agurs, saying:

“[U]nless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose” ... “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” ... [i]n determining materiality, the omission must be “evaluated in the context of the entire record,” and constitutional error is committed only “if the omitted evidence creates a reasonable doubt that did not otherwise exist.” [Emphasis added.]

Stone v. State, 583 S.W.2d at 415 (in part quoting United States v. Agurs, 427 U.S. at 109-12, 96 S.Ct. at 2400-02).

In granting the writ of mandamus in this case, this court is opening up “Pandora’s Box.” This could encourage the filing of petitions for writs of mandamus in many cases where the trial court has either granted or denied a defense motion for discovery. Such a practice would often, as the filing for the writ in this case did, result in delays of criminal trials. I submit, respectfully, that the majority decision in this case is an abuse of the well established rule of law that a trial judge’s ruling in criminal discovery matters will not be disturbed unless a clear abuse of discretion is shown.

I would deny the writ of mandamus in this case.

HILL and GRAY, JJ., join.


source: Caselaw Access Project

author: FENDER, Chief Justice.

license: Public Domain

text:
    Dennis Ray ROBERTSON, Appellant, v. The STATE of Texas, State]
    No. 2-84-078-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 27, 1985.

      John W. Bates, Dallas, for appellant.
    Henry Wade, Dist. Atty., and Constance M. Maher, Asst. Dist. Atty., Dallas, for the State.
    Before FENDER, C.J., and ASHWORTH and BURDOCK, JJ.
   OPINION

FENDER, Chief Justice.

This is an appeal from a conviction for voluntary manslaughter. Appellant raises four grounds of error. In his first ground of error appellant argues that his oral statement given to a police officer should not have been admitted into evidence at trial, because it was elicited through custodial interrogation. In his second ground of error appellant claims that the trial court should have granted a mistrial because counsel for the State asked a question of the witness which the trial court had previously ruled could not be made. In his third ground of error appellant urges that the State violated the rule by calling the victim’s mother to testify. Finally, appellant asserts that the State improperly impeached a witness by informing the jury of his prior misdemeanor conviction for lying to a police officer.

We affirm.

This case stems from a dispute between appellant and Frederick Baker, the victim. Appellant claims that he had agreed to help Baker move some furniture in exchange for payment. After performance, appellant tried to collect from Baker on several occasions, but each time Baker became angry and would not pay. On June 27, 1983, appellant was at a pool hall where he met Baker. After once again being threatened by Baker, appellant went home and got a shotgun. He then returned to the pool room and shot appellant from close range outside on the parking lot. Appellant testified that he shot out of self defense, because he had seen a shiny object on Baker’s person. No weapon was found by the police. The shooting occurred about 5:00 p.m.

At about 10:00 p.m. that night appellant, accompanied by his mother, went to the Lew Sterrett Justice Center in Dallas. He approached the warrants desk on the second floor and told an Officer Leverett, who was on duty there, that he was wanted on a “murder charge.” Leverett did not know what appellant was talking about. Lever-ett checked the records at the warrants desk but found nothing referring to appellant. He then asked appellant to explain the circumstances. Appellant responded by saying a man had been hassling him over some money and he pulled out his gun and shot him. After this explanation, Lev-erett placed a telephone call to a separate police division and confirmed that there had been a shooting as described by appellant.

An Officer Johnson, who had been assigned to the investigation of the crime when it occurred some five hours earlier, was then summoned to meet appellant at the jail. He informed appellant that he was being charged in a homicide and read him his Miranda rights. Appellant then signed a statement relating to the incident.

At trial Leverett’s testimony about what appellant had told him at the warrants desk — that he had shot a man who was hassling him over money — was admitted over appellant’s objection. Appellant claims that his oral statements to Leverett were the product of custodial interrogation, and were thus inadmissible because the requirements of TEX.CODE CRIM.PROC. ANN. art. 38.22 sec. 3 were not complied with.

In assessing' appellant’s arguments, we note that a determination of when a person has been subjected to custodial interrogation depends on a variety of factors. Four main factors have been identified: (1) the subjective feelings of the person as to whether he feels himself to be in custody; (2) the subjective feelings of the officer interacting with the person as to whether the person is a suspect; (3) whether or not the focus of the investigation has finally centered on the person; and (4) whether the officer had probable cause to arrest the person. Ruth v. State, 645 S.W.2d 432 (Tex.Crim.App.1979); McCrory v. State, 643 S.W.2d 725, 733 (Tex.Crim.App.1982).

Applying these factors to the facts at bar, we fail to see that Officer Leverett ever placed appellant in custodial interrogation during the exchange in question. We place great significance on the fact that appellant voluntarily walked into the station and began talking to Officer Leverett. See Newhouse v. State, 420 S.W.2d 729, 731 (Tex.Crim.App.1967); Brooks v. State, 580 S.W.2d 825, 833, 834 (Tex.Crim.App.1979). Furthermore, there was not any evidence to suggest that appellant did not feel himself free to go at any time during his exchange with Officer Leverett. On the contrary, appellant’s own testimony showed that he approached and spoke to Officer Leverett on his own initiative.

Appellant argues, though, that at the time he approached Officer Leverett, he was the focus of the investigation. Appellant reaches this conclusion by noting that even if Officer Leverett himself had no reason to suspect appellant, those officers assigned to investigate the crime had already determined that appellant was a suspect. (The State stipulated to this last fact.) In short, appellant asks us to impute' the knowledge of those officers investigating the crime to Officer Leverett, in order to find that appellant was in custodial interrogation. This we decline to do. As far as we can tell, Officer Leverett had no investigatory responsibility, either for the crime in question or for any other crimes, at the time appellant approached him. Instead, his duties were clerical and administrative. For that reason, we cannot hold that Officer Leverett’s follow-up question to appellant, in which he asked him to explain the circumstances, established a relationship of custodial interrogation.

In Ruth, 645 S.W.2d at 436, upon which appellant relies, the Court of Criminal Appeals held that the suspect’s statement to police officers, who had responded to a call from a dispatcher, that he had shot the victim, established a relationship of custodial interrogation because it immediately focused the investigation on the suspect and furnished probable cause to believe that he had committed an offense. Relying on Ruth, appellant argues that his first statement to Officer Leverett that he wanted to turn himself in on a murder charge also established a relationship of custodial interrogation. We disagree. In Ruth the officers who questioned the suspect were directly involved in the investigation. Furthermore, in Ruth the investigating officers approached the suspect and began asking him questions; the suspect did not initiate the conversation. We thus find that appellant was never placed in custodial interrogation. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends-that a mistrial should have been granted because the prosecutor asked Officer Leverett the following question: “Did he [appellant] tell you at any time that the man he shot went for a weapon?” Appellant claims this question was asked in bad faith by the prosecutor because the trial judge had previously instructed the prosecutor that he could only ask Officer Lever-ett to recount appellant’s response to Officer Leverett’s query about the circumstances. Although appellant objected and the court instructed the jury to disregard, appellant points out that the question bore directly on the disputed issue of self defense which appellant ultimately lost.

It is well established that any error in asking an improper question may generally be cured or rendered harmless by sustaining an objection and giving an instruction to disregard. Seaton v. State, 564 S.W.2d 721, 725 (Tex.Crim.App.1978). An exception to this rule is where the evidence is clearly calculated to inflame the minds of the jury, and is of such character as to suggest the impossibility of withdrawing the impression. Torres v. State, 552 S.W.2d 821 (Tex.Crim.App.1977). Appellant has failed to produce any authority to support his contention that the question was so inflammatory or egregious as to warrant a new trial, and we fail to see how an instruction to disregard was not sufficient to cure any error. In this situation appellant’s second ground of error is overruled.

In his third ground of error, appellant argues that “the rule” was violated when the victim’s mother testified for the State as a rebuttal witness. Appellant claims the trial court abused its discretion in allowing this testimony because (1) the witness had heard appellant testify and (2) the witness’s testimony contradicted the testimony of appellant. See Murphy v. State, 496 S.W.2d 608, 610 (Tex.Crim.App.1973); Hougham v. State, 659 S.W.2d 410, 413 (Tex.Crim.App.1983). We have read the statement of facts and do not find that 41 there is a contradiction between the testimony of the appellant and that of the witness. On direct examination appellant tsti-fied that he went to an apartment and it was there that he moved some furniture at the request of the victim. Witness Baker testified on the other hand that the victim, her son, had never moved out of the house where she and her son lived. Witness Baker’s testimony regarding the residence of the victim, and appellant’s testimony regarding the location where he had gone in order to move furniture at the request of appellant, are not contradictory. Appellant gave no testimony which suggested that the victim, in asking appellant to move some furniture, was planning to change his residence. We find that there was no abuse of discretion in allowing witness Baker to testify, and therefore we overrule appellant’s third ground of error.

Appellant’s fourth ground of error centers on the propriety of the State’s impeachment of the defense witness Troy Richardson. In rebuttal, the State informed the jury of Richardson’s prior misdemeanor conviction for making a false report to a police officer. TEX.PENAL CODE ANN. sec. 37.08. Appellant claims that this misdemeanor is not a crime of moral turpitude because, although it involved dishonesty, it was not motivated by personal gain.

It is well established that in a criminal case, the credibility of a witness can be attacked by showing that the witness has been convicted of either a felony or a misdemeanor involving moral turpitude. Trippell v. State, 535 S.W.2d 178, 180 (Tex.Crim.App.1976). As to what misdemeanors involve moral turpitude, there appear to be no clear cut criteria. Misdemeanors held to involve moral turpitude include theft, forgery and prostitution. Misdemeanors held not to involve moral turpitude include drunkenness, gambling and fighting. See Ray Texas Law of Evidence sec. 658 at 592 (Texas Practice 3d ed. 1980).

We hold that lying to a police officer involves moral turpitude, regardless of whether it was done for personal gain, because it involves dishonesty. There can be no question that a crime involving false statement and dishonesty is relevant to the credibility of a witness. Appellant’s fourth ground of error is overruled.

The judgment is affirmed.


author: JOE SPURLOCK, II, Justice.

text:
    Richard Allen SWARTZ, Appellant, v. The STATE of Texas, State.
    No. 2-84-246-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 28, 1985.
    Alley & Alley, Richard Alley, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., and David K. Chapman, Asst. Dist. Atty., Fort Worth, for State.
   OPINION

JOE SPURLOCK, II, Justice.

Appellant, Richard A. Swartz, pled not guilty to the offense of aggravated assault with a deadly weapon, TEX.PENAL CODE ANN. sec. 22.02 (Vernon Supp.1985). The jury found him guilty, and after finding an enhancement count to be true the jury assessed his punishment at thirteen years confinement in the Texas Department of Corrections.

Swartz complains in a single ground of error that there was insufficient evidence to show that the knife alleged in the indictment was a deadly weapon and could not have supported the verdict of guilty of the offense of aggravated assault.

We affirm.

There have been many cases recently in Texas concerning whether or not a particular knife used in a particular offense is or is not a deadly weapon under the circumstances of its use. The case most often cited is Alvarez v. State, 566 S.W.2d 612, 614 (Tex.Crim.App.1978), wherein the Court of Criminal Appeals held:

It is well established that a knife is not a deadly weapon per se, although a knife can qualify as a deadly weapon through the manner of its use, its size and shape and its capacity to produce death or serious bodily injury. [Citations omitted.] Thus, the essential question is whether there is sufficient evidence to show that the appellant used the knife or intended to use the knife in such a way that it was ‘capable of causing death or serious bodily injury.’ [Citations omitted.]

This court has recently written on this same issue in the case of Curry v. State, 674 S.W.2d 495 (Tex.App.—Fort Worth 1984, pet. pending), wherein the court discussed a number of written opinions of the Court of Criminal Appeals’ dealing with the issue of determining when a knife used in the commission of an offense is or is not to be considered a deadly weapon. In each of the cases cited the issue of whether or not the knife is a deadly weapon turns upon the particular circumstances of the case.

Most recently in the case of Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App.1983), the court noted that the evidence can show a particular knife to be a deadly weapon by showing its size, shape, sharpness, the manner of its intended use, or its use, and its capacity to produce death or serious bodily injury. Further, to determine the deadliness of a weapon, the jury may consider all of the facts of the case including the words spoken by the accused. Id. at 294.

In the instant case the victim described the knife as being about three or four inches long with a sharp blade and a point. She stated that she was in fear for her life and was certain the knife could kill her. She had a straight line of cuts across her fingers which she believed came from the knife during the scuffle with Swartz. There was some conflict in her testimony that she might have at one time said that the cuts came in a fall to the ground, but the jury as the trier of fact had the responsibility to resolve any such conflicts. It is conceivable the jury could have inferred the knife was sharp from the cuts. The victim’s testimony also was that Swartz had grabbed her and said, “Don’t say a word” and exhibited the knife to her about six inches from her face. After showing her the knife he repeated the same phrase “Don’t say a word”. The victim testified that as she screamed and began to scuffle, a passerby came upon the scene and Swartz dropped her to the ground and fled.

The police officer who investigated the offense was called at trial and testified that the victim reported she had been assaulted, and that she was extremely excited and distraught. The person who assaulted her used a weapon which was described by her as a long-bladed knife. The officer testified that the complainant had told him that the knife had been held to her throat. He searched for the knife but could not find one at the scene. Another police officer was called as an expert witness who had experience in investigating injuries or deaths as a result of knife wounds. He testified that in his opinion a knife is a deadly weapon. He based this opinion upon the fact that if the knife makes contact with an individual on specific areas on ones’ person that serious injury or death could result.

We see no need to discuss the entire line of cases previously reviewed by this court in Curry, but conclude under the facts of this case the evidence is sufficient. That is, when a woman is assaulted, a knife is held to her throat and not more than six inches from her face, a threat is made to her to “Don’t say a word”, and where a scuffle ensues, the witness is cut on her hand and the attacker ceases the attack only because of the timely arrival of an intervenor, that under these facts it is not improper for a jury to conclude that the weapon used was in the manner of its intended use a deadly weapon. Further, it is not improper for the jury to conclude that the use of that weapon was to carry out a threat by the attacker to kill or seriously inflict bodily injury on the victim if she did say a word. We find that the evidence is sufficient to support the allegations in the indictment and the verdict in this case. Swartz’ ground of error is overruled.

The judgment is affirmed.


author: LEIBSON, Justice.

text:
    COMMONWEALTH of Kentucky, Movant, v. Robert SCHINDLER, Respondent.
    Supreme Court of Kentucky.
    Oct. 4, 1984.
    Rehearing Denied March 21, 1985.
    Michael L. Williams, Sp. Asst. Atty. Gen., Newport, for movant.
    Mott V. Plummer, Newport, for respondent.
    J. Vincent Aprile II, Frankfort, for Dept, of Public Advocacy, amicus curiae.
   CERTIFICATION OF LAW

LEIBSON, Justice.

Robert Schindler was convicted in Campbell District Court for “failing to render aid and assistance after an accident” in violation of KRS 189.580(1). The jury recommended and the judge imposed the maximum penalty provided for this offense, imprisonment for 365 days and a fine of $2,000. KRS 189.990(1).

Thereafter the trial judge set aside the fine on grounds that, regardless of the penalty expressly provided by KRS 189.-990(1) for this offense, the maximum fine for any misdemeanor is limited to $500 by the Kentucky Penal Code. The judge arrived at this result by application of KRS 532.005 superimposed KRS 534.040.

KRS 532.005 provides:

“KRS Chapters 532, 533 and 534 (classification and dispositions) apply to all classes of crimes committed outside the provisions of the penal code.”

KRS 534.040(2) provides that the maximum fine “for a Class A misdemeanor (is) $500.” The 365 days maximum penalty provided for a violation of KRS 189.580(1) classifies it as a Class A misdemeanor. However KRS 534.040(1) also provides that this maximum fine does not apply where a different fine is “otherwise provided for an offense defined outside this code.” “Code” means the Kentucky Penal Code, KRS Chapters 500-534, and a violation of KRS 189.580(1) is “outside this code (KRS 534.-040(2)).”

Because KRS 534.040(2) was first enacted in 1974 and KRS 532.005 in 1976, Campbell District Court held that KRS 532.005 effective June 19, 1976 eliminated the exception set out in KRS 534.040(2) for offenses outside the code, thereby limiting the fine for violation of KRS 189.580(1) to a maximum of $500. The district court followed an Opinion of the Attorney General, OAG 78-457, to the same effect.

The Commonwealth certified to this Court the question whether the language of KRS 532.005 supplants the exception for offenses defined outside of the code provided in KRS 534.040(2). The question presented impacts other offenses outside the code in addition to traffic offenses.

The respondent, Schindler, who no longer has a financial stake in the matter, elected not to oppose the Commonwealth in this matter. The Department of Public Advocacy has briefed the case on his behalf. Thus both points of view are represented.

We disagree with the interpretation of KRS 532.005 which has been superimposed upon KRS 534.040(2) by the Campbell District Court and the Attorney General’s Opinion. This view of the two statutes presupposes that because KRS 532.005 was enacted in 1976, two years later than KRS 534.040(2) and seemingly conflicts with the earlier statute, the General Assembly by implication eliminated the exception proviso in the earlier statute.

Respondent’s position is that the legislature is presumed to have been aware of the earlier statute and meant to override it. Schooler v. Commonwealth, Ky.App., 628 S.W.2d 885 (1982). Further, if the statutes “cannot be reconciled, the later statute controls.” Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398, 400 (1949). It is a fundamental rule of statutory construction that where statutes are “inconsistent” the “last expression of legislative will prevails.” Askew v. Schuster, Fl., 331 So.2d 297, 300 (1976).

However, the fundamental error in the respondent’s position is that it overlooks the reenactment of KRS 534.040 in 1978. 1978 H.B. 234, § 8, Eff. 6-17-78, sets out in full the previous language including the critical phrase: “Except as otherwise provided for an offense defined outside this code, ...” Thus the 1978 edition of KRS 534.040 also includes the exception applicable to the fine provided for violation of KRS 189.580(1), and is the later (and controlling) statute. The 1978 Act describes the reenactment as an amendment rather than a reenactment, but this has no effect on its validity. The Opinion of the Attorney General, for whatever reason, does not discuss the 1978 reenactment of KRS 534.040(2). If we assume that the language of KRS 532.005 enacted in 1976 superseded the language of KRS 534.040(2) enacted in 1974, it follows that the 1978 reenactment of KRS 534.040(2) in turn supplants the 1976 statute.

In short, the status of fines for offenses defined outside the Kentucky Penal Code as fines “otherwise provided” has been returned to its former status, assuming it was ever changed.

It is extremely unlikely that the legislature meant to change the status of such fines by the language of KRS 532.005 in 1976. More than likely, had it so intended, the statutory language would have been supplemented by specific language so stating. The applicable maxim of statutory construction is generalia specialibus non derogant, general words do not derogate from special. . But we need not look to the application of this maxim in present circumstances where a 1978 reenactment of KRS 534.040(2) is controlling in any event.

All concur.


text:
    COMMONWEALTH of Kentucky, Appellant, v. Thomas E. HOLLINGSWORTH, Appellee.
    Supreme Court of Kentucky.
    Dec. 20, 1984.
    Rehearing Denied March 21, 1985.
    Steven L. Beshear, Atty. Gen., Virgil W. Webb, III, Asst. Atty. Gen., Frankfort, for appellant.
    David Busse, Frank W. Heft, Jr., Louisville, for appellee.
   CERTIFICATION OF THE LAW

The appellee, Thomas Edward Hollings-worth, was indicted on September 9, 1982, for trafficking in a Schedule III controlled substance, pentazocine, contrary to KRS 218 A.140. At the close of the Commonwealth’s case Appellee moved for a directed verdict on the grounds that the statute dealing with Schedule III drugs, KRS 218A.090 did not control pentazocine in pill form. The trial court noted that the pill form of the drug was controlled by regulation enacted pursuant to KRS 218A.020. However, the court ruled that the guidelines set out for classification of substances in the statute were not mandatory, and therefore, the statute was an unconstitutional delegation of legislative power. The court ordered a verdict of acquittal be entered on behalf of the appellant.

This court has ruled that for there to be a constitutional delegation of legislative authority, the legislature must delegate only the administration of the law itself and must not delegate the exercise of its discretion as to what the law shall be. Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984). This is accomplished by setting forth standards controlling the exercise of administrative discretion. Ibid.

Appellee argues that KRS 218A.020 is unconstitutional because the permissive language used to describe the cabinet’s duties would permit the cabinet to reschedule drugs at their pleasure. KRS 218A.020(1) & (2) reads as follows:

(1) The cabinet for human resources shall administer this chapter and may by regulation add substances to or delete or reschedule all substances enumerated in the schedules set forth in this chapter. In making a determination regarding a substance, the cabinet for human resources may consider the following:
(a) The actual or relative potential for abuse:
(b) The scientific evidence of its pharmacological effect, if known:
(c) The state of current scientific knowledge regarding the substance:
(d) The history and current pattern of abuse:
(e) The scope, duration, and significance of abuse:
(f) The risk to the public health:
(g) The potential of the substance to produce psychic or physiological dependence liability: and
(h) Whether the substance is an immediate precursor of a substance already controlled under this chapter.
(2) After considering the factors enumerated in subsection (1) the cabinet for human resources may adopt a regulation controlling the substance if it finds the substance has a potential for abuse. (Emphasis added).

Subsection (1) of this statute states which agency has the power to administer the chapter. Also implicit in the same language is the fact that the cabinet has the affirmative duty to administer the chapter according to the standards set by the legislature.

Subsection (2) states the general standard the cabinet is to use in determining whether a substance should be controlled, i.e., “if it finds the substance has a potential for abuse.” Subsection (1) lists eight factors which aid the cabinet in making the determination, and although subsection (1) states that the cabinet may consider the factors, subsection (2) states that a substance may be controlled only after the previous listed factors are considered. Additionally, the eight factors listed are basic questions regarding abuse and merge into any determination regarding the “potential for abuse” of a substance.

Although this statute addressed the general issue of a substance with a potential for abuse, it does not set forth the specific standards to be used for a particular classification. This language is contained in the statutes that follow KRS 218A.020 which list the factors to be considered in placing a drug in one of the five different schedules. The drug involved in the present case, pen-tazocine, was classified under Schedule III, KRS 218A.080, which reads:

The cabinet for human resources shall place a substance in Schedule III if it finds that:
(1) The substance has a potential for abuse less than the substances listed in Schedules I and II;
(2) The substance has currently accepted medical use in treatment in the United States; and
(3) Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence.

Far from stating that the cabinet may reschedule at its pleasure, the statute states that the cabinet “shall” place a substance in this schedule if the three criteria are met.

The individual statutes listing the criteria for a particular classification read in combination with KRS 218A.020 set out specific mandatory standards to be used by the cabinet in classifying substances. The legislature has delegated only the administration of the law, and therefore, KRS 218A.020 and the statutes that follow are constitutional.

The appellee argues that even if the statutes are constitutional delegation of power, pentazocine in pill form cannot be classified as a Schedule III drug because the legislature specifically exempted it in KRS 218A.090(3). The substance was classified Schedule III by administrative regulation, and the appellee alleges that this action by the cabinet would be usurping the will of the legislature.

KRS 218A.090 reads:

Unless otherwise rescheduled by regulation of the cabinet for human resources the controlled substances listed in this section are included in Schedule III:
(3) Pentazocine (parenteral or injectable form only).

The appellee’s position is without merit since the statute specifically states that the cabinet is empowered to reschedule the substances. Additionally, KRS 218A.020(1) states that the cabinet may “by regulation add substances to or delete or reschedule all substances enumerated in the schedules set forth in this chapter.”

Lastly, the appellee alleges that the pertinent regulation is constitutionally defective because it does not state that the cabinet has considered the eight items listed in KRS 218A.020 in addition to the standards stated in KRS 218A.080 when it determined pentazocine in pill form should be controlled. As stated previously the eight factors in question merge into any consideration of the “potential for abuse.” Accordingly, KRS 218A.080 itself sets forth adequate standards for the cabinet to use in classifying a substance under 902 KAR 55:025.

The legislature has established adequate standards for the cabinet of human resources’ administration of the scheduling of controlled substances, and the cabinet has followed those standards in classifying pentazocine in pill form as a Schedule III substance. Therefore, KRS 218A.020 and those statutes which follow are not an unconstitutional delegation of legislative power.

The law is so certified.

STEPHENS, C.J., and AKER, GANT, LEIBSON, STEPHENSON and WINTER-SHEIMER, JJ., concur.

VANCE, J., dissents.


author: GANT, Justice.

text:
    Ramon L. HOWARD, Appellant, v. Paulie MILLER, in his official capacity as Chief Clerk of Jefferson Circuit Court; Don Cetrulo, in his official capacity as Director of the Administrative Office of the Courts, et al., Appellees.
    Supreme Court of Kentucky.
    Feb. 28, 1985.
    Ellen G. Friedman, Everett C.-Hoffman, Legal Aid Society, Inc., Louisville, for appellant.
    Jean Collier, Administrative Office of the Courts, Martin Glazer, William L. Davis, Asst. Attys. Gen., Frankfort, Michael Greene, Louisville, for appellees.
   GANT, Justice.

The United States District Court for the Western District of Kentucky, Hon. Charles M. Allen, Chief Judge, has certified the following question of law to this court, pursuant to CR 76.37(1):

When a judgment debtor wishes to assert an exemption to execution and levy, may he file a motion under CR 60.02, or must he file a completely separate and distinct new action, or is there any other legal process or statute by which he may obtain a prompt hearing?

Kentucky has not faced this issue since the demise of our former Civil Code of Practice on July 1, 1953, and its replacement by the Kentucky Rules of Civil Procedure. We are cognizant of our cases prior to that date which held that a party desiring to contest the execution and levy on specific property was compelled to bring an original action and was precluded from proceeding by motion in the action frcSm which the execution and levy originated. See Park Hill Realty Company v. Lykins, 290 Ky. 498, 500, 161 S.W.2d 602 (1942); Columbia Building Loan & Savings Ass’n’s Assignee v. Gregory, 129 Ky. 489, 492, 112 S.W. 608 (1908); Hauns v. Central Kentucky Lunatic Asylum, 103 Ky. 562, 45 S.W. 890 (1898), and Hope v. Hollis, 5 Ky.L.Rep. 321 (1883).

The rationale behind these cases was succinctly stated in Hauns, supra, when the court stated:

We have examined with care the different provisions of the Code of Practice in regard to motions and summary proceedings, and the relief authorized to be obtained on motion, and fail to find any provision authorizing the action taken by the court in the case at bar. Ibid. 103 Ky. 567, 45 S.W. 891.

Thus, the requirement of the previous cases for an original action was based, quite simply, on the fact that the former Civil Code of Practice contained no provision for motion practice in this situation. Under our Rules of Civil Procedure, there remains no such vacuum. Judgment debtors are provided with adequate and prompt remedies under our rules for post judgment relief, such as allegations of improper execution and seizure. CR 7.02, CR 59.05, CR 60.02, CR 62.01.

CR 62.01, in part, states as follows:

A motion ... to alter, amend or vacate a judgment made pursuant to Rule 59, ... shall operate to stay the execution of or any proceedings to enforce a judgment pending the disposition of any such motion .... In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for relief from a judgment or order made pursuant to Rule 60 ...

In answer to the request for certification, the law in Kentucky is that a judgment debtor may file a motion under CR 60.02 in the action in which he acquired such status if he desires to assert an exemption to execution and levy.

The law is so certified.

All sitting except LEIBSON,. J.

STEPHENS, C.J., and AKER, GANT, STEPHENSON and WINTERSHEIMER, JJ., concur.


author: WINTERSHEIMER, Justice. LEIBSON, Justice, AKER Justice,

text:
    Fred PENDLETON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 28, 1985.

      Michael A. Wright, Asst. Public Advocate, Frankfort, for appellant.
    David L. Armstrong, Atty. Gen., Paul E. Reilender, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict convicting Pendleton of first-degree rape and first-degree sodomy. He was sentenced to life in prison on each charge.

Although there are six claims of error, the most important issue involves the excluded testimony from a psychologist who had administered tests and offered expert opinion that Pendleton’s psychological profile was not indicative of or consistent with that of a sex offender. The testimony was taken on avowal.

The other questions are whether it was proper to allow the child victim to testify, whether a continuance should have been granted for an absent defense witness, whether the testimony about instances of past sexual abuse from the victim’s sister should have been admitted, whether references to collateral criminal activity should have been admitted, and whether the prosecution’s closing argument was proper.

The principal witness was the 6-year-old victim. The child was staying with Pendle-ton at the time of the alleged incidents. Pendleton and his wife were separated. She described the assaults on her with the use of anatomically correct dolls. On cross-examination she denied ever telling anyone including two defense witnesses that the father had done anything to her. Towards the end of her cross-examination, she refused to listen to the questions and placed her fingers in her ears. The defense objected to her competency to testify because they believed she had no conception of the oath. '

The victim’s 14-year-old sister testified, over objection, that she had been sexually abused by her father over a period of 6 or 7 years, although there was no sexual intercourse. The older sister also testified to a nonsexual assault. The jury was admonished to disregard that testimony.

The defense attempted to introduce the testimony of a psychologist regarding tests conducted on Pendleton. The trial court refused to allow the psychologist to testify but permitted his testimony as an avowal. Pendleton testified in his own defense and denied all allegations charged.

The jury returned a verdict of guilty on both charges and gave Pendleton two life sentences. This appeal followed.

This Court affirms the judgment of the circuit court.

The trial judge correctly ruled that the 6-year-old victim was competent to testify. Whether a witness is competent is a question for the sound discretion of the trial court. Unless that discretion is abused, it will not be disturbed on appeal. See Moore v. Commonwealth, Ky., 384 S.W.2d 498 (1964); Capps v. Commonwealth, Ky., 560 S.W.2d 559 (1977). There was no abuse of discretion.

The trial judge did not commit reversible error when he denied the motion of Pendleton for a continuance. Pendleton maintains that the trial judge committed reversible error when he denied the defendant’s motion for a continuance because of the absence of a potential witness. The affidavit submitted in this case does not meet the requirements of the rule which require the affidavit show the materiality of the evidence expected to be obtained and that due diligence has been used to obtain the evidence. The facts which Pendleton would have used the missing witness to prove were presented to the jury through the victim’s testimony. The defense theory was not hampered by the witness’s absence. Under all the circumstances the denial of the continuance was nonprejudicial and the trial judge acted within his authority and did not abuse his discretion. RCr 9.24. A reviewing court will not disturb such a decision unless it is clearly demonstrated to be an abuse. Davidson v. Commonwealth, Ky., 555 S.W.2d 269 (1977).

The issue regarding evidence of past sexual misconduct by the accused with his daughter Janet who was a witness at the trial is not reversible error.

Evidence of independent sexual acts between the accused and persons other than the victim are admissible if such acts are similar to that charged and not too remote in time provided the acts are relevant to prove intent, motive or a common plan or pattern of activity. The acts performed on Janet were of a similar nature as those performed on April. Janet’s testimony was admissible as showing a method of operation of sexual activity with his young daughters and to indicate a common and continuing pattern of conduct on the part of the accused.

Contrary to the language in Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972), no evidence is admissible to show “lustful inclination.” This Court is uncertain as to what is meant by the broad and subjective phrase “lustful inclination.” The better standard requires evidence to be the type that shows a common plan or pattern of activity as stated above.

Kentucky, like many other jurisdictions, has consistently followed the general rule that evidence of other criminal acts of the accused is inadmissible unless it comes within certain well-defined exceptions which must be strictly construed. Jones v. Commonwealth, Ky., 198 S.W.2d 969 (1947).

Evidence of other crime is admissible when the crime has a special relationship to the offense charged. Such evidence would show motive, identity, absence of mistake or accident, intent, or knowledge, or common scheme or plan. See Lindsay v. Commonwealth, Ky., 500 S.W.2d 786 (1973); Leigh v. Commonwealth, Ky., 481 S.W.2d 75 (1972); Rake v. Commonwealth, 450 S.W.2d 527 (1970), Spencer v. Commonwealth, Ky., 554 S.W.2d 355 (1977); Wonn v. Commonwealth, Ky.App., 606 S.W.2d 169 (1980).

Evidence of other crimes of sexual misconduct is also admissible for the purpose of showing motive, a common pattern, scheme or plan. See Keeton v. Commonwealth, Ky., 459 S.W.2d 612 (1970), Spencer v. Commonwealth, supra; Jones v. Commonwealth, supra.

So much of Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972), is overruled to the extent that it relates to the admission of evidence used to prove lustful inclination in the accused and that case is limited to the same standards that are provided for other crimes, that is, a pattern of activity, common plan or motive and scheme. Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973), is overruled to the same extent.

The testimony of the witness was admissible, not to show lustful inclination, but to show motive, common pattern scheme or plan, or common modus operandi. Young v. Commonwealth, Ky., 335 S.W.2d 949 (1960).

Pendleton was not denied due process of law or his right to a fair trial by the evidence of prior acts of assault. The unsolicited testimony of prosecution witnesses regarding prior conduct did not constitute grounds for reversal. The jury was promptly and properly admonished not to consider the testimony.

The statement made by Janet concerning a bomb threat was not directly related to the appellant. In any event, the trial judge properly admonished the jury not to consider it. No prejudice to Pendle-ton resulted from the statements and, if there was any problem, it was cured by the trial judge’s admonition to the jury. See Ware v. Commonwealth, Ky., 537 S.W.2d 174 (1976); Seay v. Commonwealth, Ky., 609 S.W.2d 128 (1980).

The isolated remarks made by the prosecutor in closing argument were not reversible error. When the entire closing argument is considered in context, the remarks complained of do not amount to reversible error. Elswick v. Commonwealth, Ky.App., 574 S.W.2d 916 (1978). When considering the case as a whole, there is no error so prejudicial that there is any substantial possibility that the result could have been any different. Blake v. Commonwealth, Ky., 646 S.W.2d 718 (1983).

The trial court correctly refused Pendleton’s attempt to introduce the testimony of psychologist Kroger. Kroger’s testimony, as given on avowal, should not have been admitted because it went to the ultimate issue of innocence or guilt. The testimony was to the effect that Pendle-ton’s psychological profile was not consistent with that of a sex offender. In addition there was a desire to present Kroger’s testimony as to the probability that Pendle-ton had committed the act.

An opinion as to whether the accused had the ability or propensity to commit such an act is improper because it is an opinion on the ultimate fact, that is, innocence or guilt. Consequently it invades the proper province of the jury. Such an opinion is not evidence of mental condition but is a factual conclusion of the witness on the ultimate issue before the jury which can be reached only by consideration of all the facts. Koester v. Commonwealth, Ky., 449 S.W.2d 213 (1969). Also see, Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984), as dispositive of this question because the testimony as proffered went to the ultimate question of innocence or guilt rather than being limited to the professional opinion regarding mental condition.

The psychologist’s testimony was not limited to a professional opinion or mental condition. Robinson v. Commonwealth, Ky.App., 569 S.W.2d 183 (1978), is distinguishable because it specifically notes that the clinical psychologist did not attempt to say that appellant’s mentality was such that she could not perceive a danger. The Court goes on to point out that such testimony would probably be improper. Id. at p. 185.

Buckler v. Commonwealth, Ky., 541 S.W.2d 935 (1976), is in no way relevant to the case at bar because it is a case where the defense of insanity is specifically pled. Although the issue is not before us, the case would have been an entirely different animal had the defense of insanity been relied on and the proper statutory notices been given in regard to the psychologist’s testimony.

The admissibility of expert or opinion testimony has been treated in various ways by other states. We are persuaded that recent decisions by Ohio and Texas reflect our view.

In a case remarkably similar to ours, the Texas Court of Appeals in Williams v. State, Tex.App., 649 S.W.2d 693 (1983), refused to allow the testimony of a clinical psychologist where the appellant characterized the witness’s testimony as evidence of appellant’s character traits, where in fact, the evidence also purported to tell the jury that appellant probably did not have the state of mind required to commit the crimes with which he was charged. Id. at 696. The Texas court determined that a trial court can refuse to admit testimony of a clinical psychologist who was of the opinion that the accused did not possess character disorders and traits usually found in child molesters. Williams v. State, supra.

The Ohio Supreme Court has determined that in a prosecution for aggravated murder and aggravated burglary, it was not error to refuse psychiatric testimony, unrelated to an insanity defense, to show that the defendant lacked the mental capacity to form a specific mental state required for crime where the state did not recognize the partial defense of diminished capacity. State v. Wilcox, 70 Oh.St.2d, 24 Oh.Ops.3d 284, 436 N.E.2d 523 (1982).

The accused did not rely on insanity as a defense. It must be noted that the defendant did not file notice of insanity defense before trial. KRS 504.070 requires that if expert opinion evidence on mental condition is to be admitted, such a notice must be filed.

If the psychological testimony was to be used as a rebuttal to the testimony of Janet as to previous sexual conduct, the trial judge was within his sound discretion in denying its use. Janet’s testimony related to conduct and factual situations. The testimony of the psychologist was purely opinion based on tests, examinations and evaluations.

Here the basis for attempting to introduce the expert opinion as to mental condition and capacity was to show its relationship to the probability of the accused having committed the charged offenses.

The trial court has discretion to control the presentation of evidence. In the absence of any abusé, the reviewing court will not reverse the decision of the trial judge. Estes v. Estes, Ky., 464 S.W.2d 813 (1971). There is no abuse of discretion here.

The judgment of the circuit court is affirmed.

STEPHENS, C.J., and STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur.

LEIBSON and AKER, JJ., dissent by separate opinions.

GANT, J., joins in AKER’s dissent.

LEIBSON, Justice,

dissenting.

Respectfully, I dissent. There are a number of points in the opinion as written where I disagree.

Appellant moved to prohibit evidence from Janet Pendleton, another daughter, charging her father with having committed prior acts of sexual abuse against Janet, offenses not charged in the indictment. The testimony was admitted. The testimony was of prior instances, years earlier, involving different sexual contact, “messing” around but not intercourse or sodomy.

Warner v. Commonwealth, Ky., 621 S.W.2d 22 (1981) was reversed because the trial court erroneously admitted evidence similar in character. In Warner, a deputy jailer was convicted of three counts of rape and one count of sodomy committed against inmates under his supervision. The trial court had permitted cross-examination of the defendant regarding “sexual advances” to other inmates, which, after denial, was followed by rebuttal evidence offered to prove such conduct. The court held that such evidence is not admissible except in “special cases” where there is proof of “prior acts of a similar or identical nature, not too remote in time.” (Emphasis original) 621 S.W.2d at 25. The evidence in the present case does not qualify for the exception to the rule. This case should be reversed.

The majority opinion holds that this testimony from daughter Janet charging prior instances of sexual misconduct was not admissible to prove “lustful inclination” in the accused, overruling Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972) to the extent that Russell approved use of such evidence to prove “lustful inclination.” But the majority opinion in the present case then holds that such evidence could be admitted “to prove intent, motive or a common plan or pattern of activity.” There is no distinction between these two phrases as they apply in the present situation. The only issue in this case was did the appellant commit the criminal acts against daughter April charged in the indictment? The only reason the past sexual misconduct daughter Janet testified to would have any relevance to the issue in the case would be if it served to show the accused’s “lustful inclination” to commit such acts. Lustful inclination, propensity to commit the crime charged, and “intent, motive or a common plan or pattern of activity” (which is the current phraseology of the majority opinion), are all of one meaning here. We should not create a formula to do what we say cannot be done.

Appellant was denied the right to present testimony from a qualified psychologist, which was offered as “expert testimony of mental condition ... as affecting the probability of the [appellant] having committed the charged offenses.” The psychologist’s testimony was offered to prove that the appellant “does not have a psychological profile that [is] indicative of or consistent with a sex offender.” This testimony refutes the testimony from daughter Janet, which, if it had any relevancy, served only to indicate a propensity to commit the acts against daughter April with which the appellant is charged. Appellant had a constitutional right to refute this testimony against him. U.S. Const., Amend. VI; Ky. Const., § 11.

The majority opinion erroneously mis-cites Koester v. Commonwealth, Ky., 449 S.W.2d 213 (1969) and Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984) as support for denying the admissibility of the psychologist’s expert testimony. The rule underlying the holding in these two cases is exactly the opposite. In Koester, a psychiatrist was asked for his subjective “opinion concerning the guilt or innocence of the accused,” the “very issue it was within the province of the jury to resolve.” Koester, supra at 215. We excluded such evidence on the basis of “the difference between an objective opinion and a subjective conclusion,” stating “it is the difference between the mental abnormality and the specific ‘product’ produced thereby.” Id.

In the present case counsel for appellant offered testimony directed at the accused’s mental condition, not the psychologist’s subjective conclusion as to guilt of the particular offense.

In Hampton v. Commonwealth, supra 666 S.W.2d at 742, we excluded an offer of testimony from a witness designated a “clinical social worker,” that in his opinion the appellant “would not have become involved with a twelve year old victim.” We avoided coming to grips with the underlying question as to whether relevant evidence of psychological propensity should be admitted, citing two reasons: (1) the absence of any “offer of proof by avowal that the witness was an expert”; and (2) “[t]he testimony as proffered went to the ultimate question of the guilt or innocence of the appellant, rather than being limited to a professional opinion regarding mental condition.” Id.

In the present case we are faced squarely with testimony from a qualified expert that is limited to a professional opinion regarding mental condition. We have heretofore recognized evidence similar in nature as admissible in Buckler v. Commonwealth, Ky., 541 S.W.2d 935 (1976), and the Court of Appeals has also done so in Robinson v. Commonwealth, Ky.App., 569 S.W.2d 183 (1978). The majority opinion is in conflict with precedent, is outside the mainstream of American law, and, most importantly, in the context of this case where it refuted the opposite inferrence resulting from the testimony of sister Janet Pendleton, refusing such testimony denied appellant’s constitutional right to confront the evidence against him.

By approving both the use of the testimony from sister Janet and exclusion of the psychologist’s testimony which tends to refute it, we provide the prosecutor a license to introduce testimony which cannot be rebutted.

There are two other errors which, standing alone, would not necessarily require reversal. But these errors, when considered cumulative of the errors previously discussed, are of an overwhelming nature. First, the jury heard testimony of a highly inflammatory, prejudicial and irrelevant nature, of unrelated collateral criminal activity supposedly committed by the appellant. This involved acts of a violent and reprehensible nature supposedly committed by the appellant. In the circumstances of this case the trial court’s admonitions to disregard such testimony were not sufficient to cure the error.

Likewise, with regard to closing argument, the prosecutor was permitted to argue, improperly and over objection, that “the jury punish Fred Pendleton for what he’s done to the lives of his daughters.” The argument urging the jury to punish for offenses not charged in the indictment was highly improper. Beason v. Commonwealth, Ky., 548 S.W.2d 835 (1977); Brown v. Commonwealth, Ky., 357 S.W.2d 681 (1962). The appellant received two life sentences. It cannot be said beyond a reasonable doubt that the improper argument did not contribute to the verdict obtained.

This case should be reversed, and a new trial ordered.

AKER Justice,

dissenting.

I concur in the dissent filed by Leibson, J., herein, insofar as it would reverse on the Warner issue concerning testimony of sexual activities by Appellant toward Janet. Otherwise I would affirm.

I am authorized to state that GANT, J., joins me in this concurrence to the dissent.

      . The Commonwealth’s Brief "submits that Janet’s testimony regarding uncharged prior sexual offense (sic.) committed upon her by appellant were properly allowed into evidence as proof of a lustful sexual disposition toward children and a continuing pattern of conduct.” (Emphasis added)


text:
    COMMONWEALTH of Kentucky, Movant/Appellee, v. Leonard LIUZZI, Respondent/Appellant.
    Supreme Court of Kentucky.
    Feb. 28, 1985.

      David L. Armstrong, Atty. Gen., Sarah M. Jackson, Asst. Atty. Gen., Frankfort, for movant, appellee.
    Sanford L. Berman, Appellate Public Advocate, Louisville, for respondent, appellant.
   GANT, Justice.

The Court of Appeals reversed the conviction of Leonard Liuzzi as a persistent felony offender in the first degree in reviewing this case on an appeal from an RCr 11.42 motion alleging ineffective assistance of counsel. The basis for determination of ineffectiveness by retained, private counsel was failure to move for a directed verdict of acquittal when there was “no direct evidence” of the age of Liuzzi at the time of commission of the former crimes, utilized at the PFO hearing, as mandated by our opinion in Hon v. Commonwealth, Ky., 670 S.W.2d 851 (1984).

An examination of the record discloses that the evidence of the age at time of commission of each prior offense was faultlessly developed. Through a Deputy Circuit Court Clerk, the Commonwealth proved each former crime by presentation of the indictment number, the nature of the offense charged, the date of commission of each crime, the date of conviction and the sentence received. Through the arresting officer, the Commonwealth proved that Liuzzi had given his birth date as July 23, 1932. Since the seven prior convictions were committed between 1969 and 1974, the jury could obviously subtract the dates and conclude that the defendant was between 36 and 42 when these crimes were committed. This was precisely the direct evidence envisioned by this court in Hon, supra, and failure to ask any witness of the ultimate conclusion is not error.

The other issue raised before the Court of Appeals was not considered by that court but, in the interest of appellate economy, will be considered by this court. Liuzzi contends that failure to move for directed verdict by reason of failure of proof of parole status, pursuant to KRS 532.080(3)(c), constituted ineffective assistance of counsel. This case was previously argued before this court on direct appeal and this evidence, or lack thereof, was not argued as error. Under the facts of this . case, in its present posture, we cannot say that failure to make such motion constituted ineffective assistance of counsel under the standards of Henderson v. Commonwealth, Ky., 636 S.W.2d 648 (1982).

The Court of Appeals is reversed, and the judgment of the Jefferson Circuit Court is affirmed.

All concur except WINTERSHEIMER, J., who concurs in result only.


author: STEPHENSON, Justice.

text:
    COMMONWEALTH of Kentucky, Movant, v. Mark Anthony SANDERS, Respondent.
    Supreme Court of Kentucky.
    Feb. 28, 1985.

      David L. Armstrong, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, for movant.
    Julie Namkin, Asst. Public Advocate, Dept, of Public Advocacy, Frankfort, for respondent.
   STEPHENSON, Justice.

Mark Anthony Sanders was convicted of second-degree burglary (KRS 511.030) and sentenced to five years’ imprisonment. The Court of Appeals reversed for a new trial based on the refusal of the trial court to instruct on criminal trespass, KRS 511.-060. We granted discretionary review and reverse the decision of the Court of Appeals.

We discern a conflict between panels of the Court of Appeals in this Court of Appeals opinion and Polk v. Commonwealth, Ky.App., 574 S.W.2d 335 (1978), rendered by a different panel.

The facts adduced at trial are as follows:

Three witnesses testified for the Commonwealth that Sanders, who was known in the neighborhood, was the man seen fleeing from the Thomas Green residence. Two of the witnesses saw Sanders, with a towel around his hand, break out the glass of a back window and jump out of the house. The third witness heard the glass break and saw Sanders jump a fence and run down an alley.

Green, the owner of the home, testified that a rifle, army jacket, and $200 to $300 worth of jewelry were missing. None of the items were recovered.

Sanders presented an alibi defense. The jury found him guilty of second-degree burglary. The Court of Appeals reversed the conviction on the ground that a “criminal trespass” instruction should have been given by the trial court.

First-degree criminal trespass, KRS 511.060, differs from second-degree burglary, KRS 511.030, only to the extent that the burglary statute requires “with intent to commit a crime.” This phrase is not included in the criminal trespass statute.

In Martin v. Commonwealth, Ky., 571 S.W.2d 613 (1978), involving conviction for a burglary, we reversed for the failure of the trial court to give a criminal trespass instruction. There the defendants admitted entering the dwelling but denied committing a crime in the house or intending to do so. They testified to entering the house to investigate an apparent break-in, also that they were too drunk to form culpable intent. The Court of Appeals equated this case with Martin in requiring a criminal trespass instruction.

A different Court of Appeals panel considered this question in Polk. There the defendant denied the charge of burglary and presented an alibi defense. The house had been ransacked, and there was testimony that the defendant was seen entering and leaving the house. This panel of the Court of Appeals held that in the circumstances of the case it was not error to refuse to give a criminal trespass instruction. Polk distinguished Martin on the basis of the alibi defense.

The factual situations here are markedly similar, and we are of the opinion Polk correctly construed our holding in Martin. In Martin we held in effect that the trial court is required to instruct on the defendant’s theory of the case. This is another way of saying the trial court must instruct the jury according to the evidence. Here, Sanders’ defense was alibi. We do not have testimony or circumstances that the jury could infer that there was presence in the house with no intent to commit a crime. There was testimony that articles of value were taken. Ordinarily, the Commonwealth need only show that the defendant entered or remained in the dwelling unlawfully. This showing permits the jury to infer intent to commit a crime in the absence of other facts which would justify the lesser degree instruction. Cf. Patterson v. Commonwealth, 251 Ky. 395, 65 S.W.2d 75 (1933), which illustrates the longstanding rule in burglary cases that proof of the act of entering creates the inference of criminal intent. We are not saying that in some circumstances a criminal trespass instruction would not be required even when the defense is alibi.

We are of the opinion the trial court properly refused to give a criminal trespass instruction.

The other assertions of error are not preserved for appellate review.

The decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.

All concur.


author: CLAYTON, Judge.

text:
    ASHLAND ARMCO EMPLOYEES CREDIT UNION William R. Mapother, Appellants, v. William T. CANTRELL, Jr., Appellee.
    Court of Appeals of Kentucky.
    Sept. 28, 1984.
    Discretionary Review Dismissed March 15, 1985.

      William R. Mapother, Mapother & Ma-pother, Louisville, John 0. Morgan, Lexington, for appellants.
    Stephen Krumm, Northeast Ky. Legal Services, Ashland, for appellee.
    Before CLAYTON, GUDGEL and MCDONALD, JJ.
   CLAYTON, Judge.

Armco Employees Credit Union (Armco) appeals from an order vacating an agreed judgment for payment of a delinquent debt as being obtained in violation of KRS 372.-140(1). William Mapother also appeals from a separate order of the same circuit court fining him $1,000 as the statutory penalty under KRS 372.990 for violation of KRS 372.140(2).

The agreed judgment which is the subject of this appeal was received by the appellee, William Cantrell, on August 8, 1983. Prior to that date, Cantrell had been contacted by appellant Mapother’s law firm regarding delinquent payment on a $5,300.00 promissory note Cantrell had executed with Armco in August of 1981. Following that initial contact, made by way of a letter requesting payment of the debt, a defendant’s affidavit was forwarded by Mapother’s firm to Cantrell on July 22, 1983. After having completed and returned the affidavit, Cantrell signed the agreed judgment and returned it to the law firm. By that agreed judgment Armco in part consented to relinquish its right to demand immediate payment of the full balance due, then $6,000.00, in exchange for Cantrell’s promise to make monthly payments of $40.00. At the time Cantrell executed this agreement and the earlier affidavit, no legal action had been instituted against him by Armco.

On September 8, 1983, Mapother, acting on behalf of Armco, filed a complaint against Cantrell in Boyd Circuit Court. The agreed judgment was subsequently submitted on September 12, 1983. Two days later, on the 15th of September, the trial court entered the agreed judgment. Cantrell then successfully filed a motion to vacate the agreed judgment as being in violation of KRS 372.140(1), providing that

Any power of attorney to confess judgment or to suffer judgment to pass by default or otherwise, any release of errors, given before an action is instituted, is void.

Cantrell further succeeded in moving the trial court to impose a statutory penalty against Mapother personally under KRS 372.990 which states that,

Any person who violates subsection (2) of KRS 372.140 shall forfeit one thousand dollars to the defendant, and shall be liable to damages at the suit of the party aggrieved.

In contrast to KRS 372.140(1), subsection two provides that “no person shall appear for a defendant under any such power [of attorney] in any court in this state.” KRS 372.140(2).

Mapother and Armco now argue that the agreed judgment described above is not a power of attorney void under KRS 372.140; but is instead a proper judgment as set forth in KRS 454.090. We agree. The agreed judgment entered into between Armco and Cantrell is in essence a consent judgment, a private contract entered into between parties and sanctioned by order of court. It does not and cannot confer upon Mapother or Armco a power of attorney to subsequently confess judgment against Cantrell. In this respect, the agreed judgment is itself a judgment and nothing more. KRS 372.140 is intended to prevent cognovit clauses in contracts giving creditors the authority to, at some later date, confess a judgment against a debtor without giving him or her the opportunity to defend. See Ward and Johnson v. Curcier, 11 Ky. (1 Litt.) 202, 205 (1822). Given its purpose, KRS 372.140 cannot be said to apply to agreed judgments voluntarily and knowingly entered between parties and indeed it has been so held. See All States Investors, Inc. v. Bankers Bond 60, 343 F.2d 618, 625 (6th Cir.1965).

The orders of the Boyd Circuit Court are reversed.

All concur.