source: Caselaw Access Project

author: TOM G. DAVIS, Judge.

license: Public Domain

text:
    Johnny Frank GARRETT, Appellant, v. The STATE of Texas, Appellee.
    No. 69088.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1984.
    Rehearing Denied Nov. 7, 1984.

      Bruce Sadler, Amarillo, for appellant.
    Danny E. Hill, Dist. Atty. and Vicki Howard, Asst. Dist. Atty., Amarillo, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

TOM G. DAVIS, Judge.

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

Appellant was convicted of murdering T- B_, an elderly nun at the St. Francis Convent in Amarillo, “in the course of committing or attempting to commit the offense of aggravated rape” of the said victim.

In his first ground of error, appellant challenges the sufficiency of the evidence to sustain the conviction. Specifically, appellant contends that the circumstantial evidence relied upon for conviction does not “exclude every other reasonable hypothesis except that of the guilt of the accused.”

At approximately 7:00 o’clock a.m. on October 31, 1981, the nude body of the victim was found on the floor of her room in the St. Francis Convent by a nun who had noticed the deceased missing at chapel earlier that morning. Another nun testified that she passed by the deceased’s open bedroom door at midnight the night before and heard her breathing. She further testified that although there was blood on the deceased’s face when the body was found that morning, the nuns did not suspect foul play and had the body removed by a funeral home. The police were summoned after the nuns discovered a broken window in the ground level recreation room. The screen to the window had been cut, and was on the pavement outside.

The police found a bent “serrated edge” table knife under the deceased’s bed, along with a set of lower dentures. What appeared to be blood was found on the wall next to the bed, the bed sheet, the deceased’s nightgown, and pillowcase. A different knife, a “Forgecraft” steak knife, was found outside of the convent in the driveway.

Dr. Ralph Erdmann, a pathologist, performed the autopsy on the body. He testified that the deceased “had sustained multiple blunt force trauma about the face, chest, and arms,” as well as stabbing wounds to the chest. He further stated that the body had injuries to the front and back of the neck, and that death was caused by manual strangulation which resulted in “cardiac arrest due to cerebral anoxia.” Injuries to the front of the neck appeared to be caused by a hard and thin object, “consistent with” the shape of the knife found under the bed.

Dr. Erdmann took vaginal washings of the deceased and found the presence of sperm and male prostate secretions. Hemorrhaging indicated that the hymen had been recently torn.

Latent fingerprints identified as appellant’s were found on the headboard of the deceased’s bed, and on the knife found under the bed. Officer Stephens testified that one print taken from the knife matched appellant's left middle fingerprint, and that another print on the knife matched appellant’s left palm print. A print taken from the upper part of the back of the headboard matched appellant’s left ring finger. Although no blood was found on the knife found under the bed, the bedsheet had a striated blood smear on it which, according to Agent Goldsberry of the FBI, was either made by that knife “or by another knife having the same type of striations.”

Agent Burwitz of the FBI testified that several pubic hairs found on the floor in the deceased’s room matched samples taken from appellant, and that the hairs either came from appellant “or another individual who had precisely the same characteristics, racial characteristics.”

Agent Goldsberry testified that the impressions on the screen to the broken window were made by a knife similar to the steak knife found in the driveway of the convent, but he could not positively state that the same knife made the marks. Goldsberry further testified that the steak knife found in the driveway of the convent was the same brand as a steak knife recovered from the kitchen in appellant’s residence, and that both knives had “the same degree of use and abuse and very possibly could have originated from the same source.”

Lonnie Watley, an inmate and trusty in the Potter County jail during appellant’s incarceration there, testified he talked to appellant in jail about the murder. He stated that although appellant was at first reluctant to discuss the matter, appellant eventually admitted breaking into the convent and killing the deceased.'

Appellant testified at the guilt stage of the trial, and admitted entering the convent and being in the deceased’s room with the knife later found under the bed. However, appellant testified he was in the convent shortly after noon, two days before the murder took place. He stated he entered the convent through the front door, took a knife from the convent cafeteria, and went upstairs to the rooms where the nuns resided searching for a chain with a cross on it, to steal. In one room, a drawer in a chest of drawers would not open and appellant bent the knife trying to open it. He stated that he grabbed the headboard on a bed in one of the rooms so that he could lean over and reach a cross hanging on the wall. At one point appellant heard footsteps approaching and got rid of the knife and fled from the convent.

Appellant now contends that his testimony at trial raises a reasonable alternative hypothesis on appeal, and therefore, the evidence is insufficient to sustain the conviction.

The standard for reviewing the sufficiency of the evidence on appeal is the same for direct and circumstantial evidence cases; and that is to view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983); Freeman v. State, 654 S.W.2d 450 (Tex.Cr.App.1983); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983); Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983); see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In applying the above standard of review, the “exclusion of reasonable hypotheses” test may be used as one means of analyzing the sufficiency of circumstantial evidence cases. As the opinion on rehearing in Denby, supra, noted, “if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding.” 654 S.W.2d at 456.

Appellant’s trial testimony explaining why his fingerprints were found in the deceased’s room does not constitute an outstanding reasonable hypothesis on appeal. The jury, as the trier of fact, was authorized to accept or reject any or all of this testimony. See Ables v. State, 519 S.W.2d 464 (Tex.Cr.App.1975). Furthermore, the State presented rebuttal testimony which challenged the reasonableness of appellant’s testimony. One of the nuns testified that the front door was normally locked, or if not, a nun would have been in the office by the front door. In addition, the nuns ate lunch in the cafeteria between noon and 1:00 p.m., and would in all likelihood have seen appellant enter the dining room during the lunch hour to remove a knife. Finally, none of the chests of drawers in the convent had a lock, and there had been no report of a stuck drawer.

Appellant’s contention is overruled. The evidence summarized above is sufficient to sustain the conviction.

In three grounds of error, appellant complains of the State’s use of an oral confession for impeachment purposes. Appellant confessed to detectives Walter Yerger and A.L. Morris while in custody. After his confession had been reduced to writing, appellant refused to sign it. When appellant testified at trial denying his guilt in the murder, his oral confession was used for impeachment by the State.

Appellant’s first complaint is that the trial court erred in failing to enter an order stating its conclusion that the statement used for impeachment was voluntarily made, as required by Art. 38.22, Sec. 6, V.A.C.C.P., in all cases where a question is raised as to the voluntariness of a statement of the accused. At appellant’s trial, outside the presence of the jury, a hearing was held concerning the voluntariness of the oral statement given to Yerger and Morris and the court ruled that the statement was voluntarily given. Although not initially in the record on appeal, the trial court’s written order that the statement was voluntarily made, along with the court’s findings of fact, has been supplemented to the record before us, and therefore, any error has been cured. See Bass v. State, 626 S.W.2d 769 (Tex.Cr.App.1982).

In his next ground of error, appellant contends the court erred in allowing the State to impeach appellant with his oral statement because prior to making the statement, appellant was given an incorrect warning of his constitutional rights as required by Art. 38.22, V.A.C.C.P., and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant points to the following excerpt from the warnings given to him:

“I have the right to remain silent and not make any statement at all and that any statement I make can and will be used in evidence against me at my trial.” (emphasis added)

Appellant contends the warning given is insufficient because Art. 38.22, Sec. 2(a)(1) provides that an accused must be warned that “any statement he makes may be used against him at his trial” (emphasis added).

Appellant’s contention is overruled. First, we fail to see how substituting “can and will” for “may” in any way lessens the effectiveness of the Miranda warnings. Furthermore, Art. 38.22, Sec. 2(a)(1) regulates what must appear on written confessions and is thus inapplicable in determining whether oral statements may be used for impeachment. Since the amendments to Art. 38.22, Sec. 3, effective September 1, 1981, the use of oral statements for impeachment is governed by Art. 38.22, Sec. 5, which provides that oral statements stemming from custodial interrogation are admissible for impeachment purposes if voluntarily made. Statements are not per se involuntary for impeachment purposes merely because incomplete Miranda warnings were given. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Finally, we hold that the warnings given appellant in the instant case constituted a “fully effective equivalent” of the warnings mandated in Miranda, supra. See California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 68 L.Ed.2d 696 (1981).

Appellant also contends that his oral statement was inadmissible for impeachment purposes because the officers failed to comply with appellant’s request for an attorney. Appellant asserts that after he requested an attorney, the officers nevertheless continued their interrogation of appellant, and thereafter, the statement was made. Appellant asserts that the use of the statement for impeachment violates “appellant’s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Section 10, of the Texas Constitution, and Articles 38.21, 38.22, and 38.23 of the Texas Code of Criminal Procedure.”

It is undisputed that appellant was given Miranda warnings prior to interrogation. Detective Morris and Lieutenant Boydston initially interrogated appellant for two hours after his arrest, and then turned over the interrogation to Detective Yerger. Appellant asked Yerger if appellant could talk to a District Attorney, and his request was refused. Approximately 10 minutes later, appellant admitted going to the convent, breaking the window, and going inside. Appellant then requested an attorney, and the questioning stopped. Yerger left the room, told Morris about appellant’s admission and request, and stated that he had stopped the interview and was going to book appellant into jail. Yerger reentered the room and began filling out an “arrest ticket.” Morris entered the room five to ten minutes later and asked appellant, “how is it going?” Yerger told Morris in appellant’s presence about appellant’s admission to entering the convent, and appellant “got upset with the fact” that Morris had been told. Morris told appellant that he was Yerger’s supervisor, and appellant demanded to see Morris’ identification, since Morris was in plain clothes. After seeing the identification, appellant stated, “Well, I suppose I should tell you everything,” and without further questioning from the officers, gave the confession which was reduced to writing. When the statement was typed up, appellant requested to talk to an attorney before signing. After talking to an attorney, appellant refused to sign the statement.

The State contends that appellant’s statement, “Well, I suppose I should tell you everything,” evidences appellant’s intent to waive his right to counsel and initiate further conversation with the police. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court stated: “We further hold that an accused, such as Edwards, having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” 451 U.S. at 484,101 S.Ct. at 1884. The State points to the opinion of the United States Supreme Court in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), in which it was held that an accused’s statement, “Well, what is going to happen to me now?”, made after invoking the right to counsel, was a sufficient “initiation” of conversation within the meaning of Edwards, supra. The State maintains that appellant’s statement bears “more directly on his intent to voluntarily tell the detectives what had happened” than did the statement found sufficient in Bradshaw.

We need not decide whether appellant “initiated” further communication with the police under Edwards and Bradshaw. Since the confession in the instant case was a voluntary statement used for impeach- merit, it is admissible under Art. 38.22, Sec. 5, supra. The statement is also admissible for impeachment purposes as a matter of federal constitutional law under Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), and Harris v. New York, supra.

In Hass, a suspect in police custody who had been given Miranda warnings invoked his right to counsel, but was told by the officer who was at the time transporting him to the station that he could not contact an attorney until reaching the station. Thereafter the defendant made several statements, including pointing out where the property he was charged with having stolen was located. The State did not use the statements in its case in chief, but rather used them as impeachment after the defendant had taken the stand and denied complicity in the crime. The Supreme Court relied on Harris v. New York, supra, which held evidence obtained from a defendant after incomplete Miranda warnings admissible for impeachment purposes, and held that the otherwise voluntary statements by the accused were admissible for impeachment purposes, even though the officer continued his interrogation after the suspect asked for an attorney. The Court also noted:

“If, in a given case, the officer’s conduct amounts to an abuse, that case, like those involving coercion or duress, may be taken care of when it arises measured by the traditional standards for evaluating voluntariness and trustworthiness.” 95 S.Ct. at 1221.

Appellant does not contend that his statement was involuntary because of an overbearing of will, coercion, or duress. See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). There is nothing before us to indicate that appellant’s statement was involuntary under “traditional standards for evaluating voluntariness and trustworthiness.” Since appellant’s only claim of voluntariness rested on the issue of invoking the right to counsel, appellant’s contention is overruled. See Oregon v. Hass, supra; Harris v. New York, supra.

In five grounds of error, appellant contends the court’s charge is fundamentally defective. Appellant made no objections to the charge when submitted, nor did he offer requested instructions. Under these circumstances, our review is limited to fundamental error.

The indictment alleges in pertinent part that appellant did:

“knowingly and intentionally while in the course of committing and attempting to commit the offense of Aggravated Rape against T_B_intentionally cause the death of T_B_, an individual, by choking and strangling T_B_ by manner and means unknown to the Grand Jurors ...”

The pertinent portion of the court’s charge provides as follows:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 31st day of October, 1981 in Potter County, Texas the defendant, Johnny Frank Garrett, did intentionally kill T_ B_ by choking or strangling her, and that said defendant, then and there, was in the course of committing or attempting to commit the offense of aggravated rape, then you will find the defendant guilty of capital murder.”

Appellant’s first contention is that the charge is fundamentally defective because it “failed to require the jury to find an essential element as alleged in the indictment, i.e. ‘that T_ B_ was an individual.’ ”

Appellant relies on Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979), which states that the “omission from the court’s charge of an allegation in the indictment which is required to be proved” constitutes fundamental error. Id. at 733.

In Sattiewhite v. State, 600 S.W.2d 277 (Tex.Cr.App.1980), we noted that the above statement in Cumbie “is not to be understood to mean that in applying the law to the facts the charge of the court must in every case set out in haec verba the factual allegations of an indictment that are supported by evidence.” 600 S.W.2d 284, n. 11. We stated that a charging instrument is not fundamentally defective if it requires the jury to find each essential element of the offense, and if it comports with the legal theory presented by the State in the indictment. Id. at 286.

In Boles v. State, 598 S.W.2d 274 (Tex.Cr.App.1980), we held that an indictment for murder under V.T.C.A. Penal Code, Sec. 19.02 was not fundamentally defective for failing to allege that the victim was an “individual.” It follows from Boles that a murder victim’s status as an “individual” is not an essential element of murder (and capital murder), and therefore, failure to include such allegation in the court’s charge, although recited in the indictment, does not constitute fundamental error. Sattiewhite v. State, supra. Appellant’s contention is overruled.

Appellant’s next assertion is that the charge is fundamentally defective because although it required the jury to find that appellant caused the death of the victim “by choking or strangling her,” it failed to require the jury to find that such choking or strangling was “by manner and means unknown to the Grand Jurors” as alleged in the indictment.

Max Motley, a member of the grand jury which heard evidence and subsequently indicted appellant, testified at trial that the grand jury was unable to determine the manner and means by which the deceased was choked or strangled. Although Dr. Erdmann, the pathologist who performed the autopsy on the deceased, testified that death was caused by manual strangulation, he did not know the exact means through which the strangulation was effected.

It is well settled that an indictment for murder should set forth the means, instrument, or weapon used; or if not known, that fact must be stated. See generally 18 Tex.Jur.3rd, Criminal Law, Sec. 205 (1982). It has been stated that “[t]he averment of an indictment that the means causing death was unknown to the grand jury is a material allegation, the substance of which must be proven as pleaded.” Mitchell v. State, 111 Tex.Cr.R. 101, 10 S.W.2d 87, 89 (1928); see also Corbett v. State, 493 S.W.2d 940, 952 (Tex.Cr.App.1973).

In the instant case the State offered proof in support of the allegation in the indictment that the manner and means were unknown to the grand jury. Thus, no variance between the pleading and proof exists. The question remains whether the failure to instruct the jury to find that the manner and means were unknown to the grand jury constitutes fundamental error.

We hold that it does not. The grand jury’s failure to determine the manner and means must be pled in the indictment in order to give notice to the defendant. An unknown manner and means, however cannot be considered to be an essential element of the offense of capital murder. Therefore, in the absence of a variance between the proof and the allegations, and in the absence of an objection, failing to instruct the jury to find that the manner and means were unknown to the grand jury does not mandate reversal. See Sattiewhite v. State, supra.

Appellant also contends the charge is fundamentally defective for failing “to require the jury to find a culpable mental state concerning the committing or attempting to commit the offense of aggravated rape.” The charge, quoted above, merely required the jury to find that appellant intentionally killed the deceased while “in the course of committing or attempting to commit aggravated rape.”

This contention is without merit. We have held that a capital murder indictment alleging murder “in the course of committing or attempting to commit aggravated rape” need not set out the elements of the aggravated rape. Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976). It follows therefore that such elements need not be set out in that portion of the charge applying the law to the facts of the case. This contention is overruled.

Appellant’s next contention is that the charge is fundamentally defective because it “permitted a conviction on proof less than required to prove the allegations in the indictment.” Appellant asserts that the charge is defective for authorizing a conviction upon proof that appellant caused the death of the deceased “by choking or strangling her,” when the indictment alleged appellant killed the deceased “by choking and strangling her.”

This contention is overruled. First, the terms “choke” and “strangle” are virtually synonymous in this context. Furthermore, it is proper for an indictment to allege the ways an offense may have been committed in the conjunctive, and for those different ways to be charged to the jury in the disjunctive. See e.g., Zanghetti v. State, 618 S.W.2d 383 (Tex.Cr.App.1981); Vaughn v. State, 607 S.W.2d 914 (Tex.Cr.App.1980); Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975).

Appellant’s final challenge to the charge asserts that the charge is fundamentally defective for using the word “kill” when the indictment used the phrase “cause the death of.”

This contention is without merit and is overruled. Since “kill” has the same meaning as “cause the death of,” we perceive no error in the charge. Cf. White v. State, 632 S.W.2d 752 (Tex.App.1981), (charge substituting “appropriate” for “exercise control over” not fundamentally defective).

In his tenth ground of error, appellant contends his conviction should be reversed “since vital evidence to appellant’s defense was destroyed by the State.” Dr. Erd-mann, the pathologist who performed the autopsy on the deceased, testified that he took vaginal washings of the deceased and found the presence of sperm and male prostate secretions. He did not conduct any tests to determine the blood type of the individual who had produced the sperm and prostate secretions.

Appellant contends that by failing to conduct a test for blood type and by disposing of the vaginal washings, “the State denied Appellant the opportunity to demonstrate his innocence by showing that the blood type of the prostate secretions in question were of a different blood type from his own.”

Although appellant cites no authority, he apparently relies upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which holds that it is a violation of due process for the State to withhold evidence favorable to an accused.

While Dr. Erdmann admitted that there would have been at least a 70 percent chance of identifying the blood type of the individual, had a blood type test been made, he testified that no such test had been conducted. Furthermore, he stated he had used up all of the sample taken and was not able to conduct further tests as to blood type. Therefore, there is no factual basis to support appellant’s contention that the State withheld any information favorable to him. Appellant’s contention is overruled. See Wilson v. State, 581 S.W.2d 661 (Tex.Cr.App.1979) (Opinion on State’s Motion for Rehearing).

In a supplemental brief, appellant contends that the trial court erred in excluding four prospective jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Appellant points to no specific statements of the veniremen, merely asserting that “[although the veniremen in question each stated a general objection to the imposition of the death penalty, they failed to make unmistakably clear their unbending opposition to capital punishment or that such opposition would affect their deliberation on issues of fact.”

Venireman Mildred Walker stated on direct that she “did not believe in the death penalty,” and that no matter what the evidence showed, she would answer one of the punishment issues “no” in order to ensure that the death penalty would not be imposed. Walker did not equivocate at first on examination by defense counsel, but after repeatedly stating she would not vote “yes” under any circumstances, the following exchange took place between Walker and defense counsel:

“Q. ... Let’s just say that maybe there had been certain kinds of evidence that you were satisfied that a person did do it deliberately and that you were also satisfied because of maybe his past conduct, or maybe because of other things that had been admitted into evidence, that he would probably do something like this in the future; maybe he had done it a dozen times in the past—
“A. Well, that would be a different story, I suppose.
“Q. ... would you answer the questions ‘yes’ if you were convinced of that?
“A. If I was convinced of it, yes.
“Q. Depends on what the evidence was?
“A. Yes.”

Thereafter the court questioned Walker and the following dialogue occurred:

“THE COURT; All right. Mrs. Walker, just so there is no misunderstanding, ma’am, I want to be sure that I understand.
“Are you telling me that you would automatically vote against the imposition of the death penalty in any case, no matter what the facts might reveal?
“JUROR: Yes, sir.
“THE COURT: All right. And to carry it one step further, are you telling me that you would automatically answer those questions ... in such a way that the death penalty would not be imposed, regardless of what the facts might reveal?”
“JUROR: Yes, that’s the way I feel.”

At this point Walker was excused over objection that she had been excused in violation of Witherspoon.

In Witherspoon v. Illinois, supra, the United States Supreme Court held that a prospective juror may not be excluded by the trial court because of opposition to capital punishment unless the venireman makes it clear either that he would automatically vote against the imposition of capital punishment no matter what evidence was presented, or that his views would prevent him from making an impartial decision as to the defendant’s guilt.

Walker’s final statements to the judge make clear that she would automatically vote against the imposition of death under any circumstances. Appellant’s counsel chose not to request to question Walker further. Under these circumstances, no error is shown. See Meanes v. State, 668 S.W.2d 866 (Tex.Cr.App.1983).

Venireman Patsy Wood stated that although she could determine a defendant’s guilt or innocence in a capital case, she would have to vote “no” on one of the punishment issues regardless of the evidence because of her “strong” feelings about capital punishment. On examination by defense counsel, Wood did not equivocate:

“Q. Mrs. Wood, are you telling the Court that after having taken an oath to make true answers to those questions and to return a true verdict based upon the law and the evidence ... that you would disregard that oath, and even though you believed that those issues, or one of those issues, or both of those issues, should be answered ‘yes’ that you would deliberately answer one of them ‘no,’ because by answering one of the ‘no,’ you would know in your own mind that the death penalty could not be imposed.
“A. Yes, sir.
“Q. Would you automatically, Mrs. Wood, prior to hearing any of the evidence, automatically vote ‘no,’ knowing that the death penalty could not be imposed if you did that?
“A. Yes, sir.”

Thereafter the court questioned Wood and she again stated that she would automatically vote against the death penalty, no matter what the facts might reveal. Under these circumstances, the exclusion of Wood was not improper under Wither-spoon, supra.

Venireman Bernice Brown stated that she believed in punishment, but not the death penalty. She stated that she could not answer both punishment questions “yes,” under any circumstances, no matter what the evidence was. Brown also did not waiver in response to questioning by defense counsel:

“Q. Now, let me just ask you this question: Would you automatically, Mrs. Brown, without regard to the evidence, without regard to the evidence at all, would you automatically vote ‘no’ to those issues just in order to see that the death penalty was not imposed?
“A. Yes, I still would ...”

Therefore, we find that the trial court did not err in excluding venireman Brown under Witherspoon, supra.

The last venireman allegedly improperly excluded was Leslie Link. Link also expressed opposition to the death penalty, and stated that no matter what evidence was presented, he would have to violate his oath and answer “no” to one of the punishment issues so that death would not be imposed. In questioning by defense counsel, Link remained firm in his convictions:

“Q. Okay. Now, what the District Attorney is asking and what we need to know, are you telling the Court right now under oath that you would deliberately answer one of those questions ‘no’ even though you thought it ought to be answered ‘yes,’ you see, just so that you would be sure that the accused got a life sentence rather than death?
“A. Yes.”

The trial court did not err in sustaining the State’s challenge to this juror. Appellant’s final contention is overruled.

The judgment is affirmed.

      . Art. 38.22, Sec. 5, V.A.C.C.P. provides in pertinent part:
      "Nothing in this article precludes the admission of ... a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness ..."

      . In its charge, the trial court instructed the jury "that the statement made by the defendant, if it was made, to Walt Yerger and A.L. Morris was admitted for the purpose of impeaching the defendant, if you find that it does impeach him, and you cannot consider such impeachment testimony as any evidence whatsoever of the guilt of the defendant."

      . "Strangle” is defined as “to choke to death by compressing the throat ...” See Webster’s New Collegiate Dictionary (1979).

      . "Kill" is defined as "to deprive of life ...” See Webster’s New Collegiate Dictionary (1979).


author: ONION, Presiding Judge.

text:
    Ex parte James Anthony JONES.
    No. 69322.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 24, 1984.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a post-conviction writ of habeas corpus proceedings brought under the provisions of Article 11.07, V.A.C.C.P.

Applicant alleges, inter alia, that his conviction for a third-degree felony theft in Cause No. F-83-83780-HKT in the 283rd District Court of Dallas County is void in that the indictment did not allege a felony and that the district court did not have jurisdiction.

In accordance with Article 11.07, supra, the habeas corpus application was first presented to the trial court. Without an evidentiary hearing the convicting district court entered its findings of facts and conclusions of law. While rejecting applicant’s contentions concerning two other prior convictions, the court did find that the misdemeanor theft charged in Cause No. F-83-83780-HKT was not properly enhanced to the level of a third-degree felony as only one prior conviction was alleged, not two as required by V.T.C.A., Penal Code, § 31.-03(d)(4)(C), and that the 10 years’ imprisonment in the Department of Corrections that was assessed was contrary to law. The trial court concluded that it did not have jurisdiction to accept the guilty plea entered in said cause, and that the conviction was invalid.

The record was then transmitted to this Court. After examination we ordered the proceedings filed and submitted to consider whether applicant is entitled to relief from the conviction in Cause No. F-83-83780HKT. His other contentions concerning his other convictions were denied.

The indictment in Cause No. F-83-83780-HKT, returned on June 1, 1983, alleged in the first count the primary offense of misdemeanor theft of one moustache kit and one curl activator of the value of at least $5.00 but less than $20.00 on or about May 1, 1983.

The second paragraph thereof alleged a prior felony conviction of theft by receiving and concealing. No other prior convictions were alleged.

On September 9, 1983, the appellant entered a plea of guilty before the court to the indictment. The court assessed punishment at 10 years’ imprisonment.

V.T.C.A., Penal Code, § 31.03(d)(4)(C), provides:

“(d) An offense under this section (theft) is:
“(4) a felony of the third degree if:
“(C) the value of the property stolen is less than $200 and the defendant has been previously convicted two or more times of any grade of theft;-”
V.T.C.A., Penal Code, § 12.34, provides:
“(a) An individual adjudged guilty of a felony of the third degree shall be punished by confinement in the Texas Department of Corrections for any term of not more than 10 years or less than 2 years.
“(b) In addition to imprisonment an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $5,000.”

The primary count of the indictment alleged a Class B misdemeanor. Y.T.C.A., Penal Code, § 31.03(d)(2)(A). The allegation of one prior felony theft did not convert the charge into a third-degree felony, nor properly enhance the offense under V.T.C.A., Penal Code, § 12.43, so that the district court would have jurisdiction.

The 283rd Judicial District Court of Dallas County did not have jurisdiction over the offense alleged. Article V, § 8, Texas Constitution; Article 199a, § 283, Y.A.C.S.

We agree with the findings of facts and conclusions of law of the trial court. The conviction in Cause No. F-83-83780-HKT is set aside and the cause is remanded to the district court for transfer to a county court in Dallas County with misdemeanor jurisdiction over the offense alleged in the first paragraph of the indictment.

IT IS SO ORDERED.

      . V.T.C.A., Penal Code, § 31.03(d)(4)(C), was amended in 1983 to change the "$200” to "$750.” Acts 1983, 68th Leg., p. 2918, ch. 497, § 3, eff. Sept. 1, 1983. This amendment was not in effect at the time of the commission of the offense here involved on May 1, 1983.
      Section 6 of Acts 1983, 68th Leg., p. 2918, ch. 497 at p. 2920 provides:
      "(a) * * *
      "(b) An offense committed before the effective date of this act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose."


author: CAMPBELL, Judge.

text:
    Leonel Torres HERRERA, Appellant, v. The STATE of Texas, Appellee.
    No. 69002.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 31, 1984.
    Rehearing Denied Jan. 16, 1985.

      Will Gray (on appeal only), Houston, for appellant.
    Reynaldo S. Cantu, Jr., Dist. Atty., Brownsville, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CAMPBELL, Judge.

This is an appeal from a conviction of capital murder. The jury answered in the affirmative the special issues submitted at the punishment stage of the trial pursuant to Art. 37.071, V.A.C.C.P., and the trial court assessed punishment at death.

The appellant presents eight grounds of error. Appellant complains in four grounds of error that the pre-trial and in-court identification of him as the perpetrator of this offense violated appellant’s constitutional rights; he objects to the admission of a dying declaration; he further objects to the admission, during the punishment phase of the trial, of certain threatening statements made by appellant which he alleges were “fruits” of an interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966); he objects to testimony at the punishment phase of the trial regarding an assault on a news correspondent during appellant’s arraignment on a non-related charge for which he was subsequently acquitted. Having reviewed the record and arguments of counsel and finding no reversible error, we affirm.

While appellant does not challenge the sufficiency of the evidence to support his conviction, we nonetheless will provide a detailed description of the pertinent facts in order to illuminate the legal issues appellant does raise.

Appellant was charged with the capital murder ,of a Los Fresnos city police officer. See V.T.C.A. Penal Code, Sec. 19.03(a)(1). The testimony at trial established that on the evening of September 29, 1981 a DPS officer (Rucker) and a Los Fresnos city police officer were shot and killed, within ten to twenty minutes of each other, along a desolate 6.2 mile stretch of highway. Enrique Hernandez was riding with Officer Carrisalez, the Los Fresnos officer, and witnessed the offense which forms the basis of appellant’s conviction. The testimony at trial showed that the witness Hernandez positively identified appellant as the perpetrator of the offense. Immediately after Carrisalez’ shooting, Hernandez radioed in a description of appellant and his vehicle. Carrisalez had previously radioed in the license plate number “WBZ 143”; this was subsequently corrected to “XBZ 143” (it is unclear from the record whether Carrisalez radioed in the wrong number or the dispatcher incorrectly noted the number.) Local law enforcement officers familiar with appellant determined that the description of the offender and the vehicle matched appellant and a vehicle he was known to drive and immediately obtained an arrest warrant. Upon executing the warrant the officers found the vehicle but not the appellant. The vehicle, described by Hernandez, bore license plate number “XBZ 143” and was registered to appellant’s “live-in” girlfriend. She gave the officers permission to search the car. Upon inspection, the left side of the vehicle had what appeared to be blood stains; blood was also found on the driver’s side of the seat and floorboard. Also found in the vehicle were personal papers of the appellant and some spent shotgun shells. Forensic tests subsequently showed that the blood stains were type A; the same blood type as DPS officer Rucker.

Further testimony at trial established that Officer Rucker had been shot and killed within ten minutes of the time appellant was stopped by officer Carrisalez; a vehicle matching the description of appellant’s vehicle was observed during the pertinent time period by several witnesses driving along the highway between where Rucker’s body was found and where Carri-salez was shot.

Appellant was arrested on October 4, 1981. When an officer attempted to interrogate appellant, appellant demurred that “it was all in the letter” and suggested to police that they read a letter if they wanted to know what happened. He then invoked his Sixth Amendment right to counsel. Police then inventoried appellant’s belongings and located six envelopes upon which appellant had written a letter essentially admitting and offering an explanation for both police killings.

Appellant by way of three grounds of error challenges the pre-trial identification procedures used and claims that Hernandez’ in-court identification should have been struck and a mistrial granted, as same was based upon impermissibly suggestive pre-trial procedures which led to a substantial likelihood of irreparable mis-identification.

On direct examination by the State, Hernandez testified, without objection, that he was specially trained in the army to identify certain missile systems with the naked eye, thereby establishing special training in observation and identification techniques. Hernandez testified that he had an opportunity to observe the appellant for at least 14 seconds with the aid of a police spotlight and car headlights illuminating the appellant and his vehicle. Immediately after the offense Hernandez provided police with an accurate description of both appellant and his vehicle.

The offense occurred at approximately 11:00 p.m. on the evening of September 29, 1981. On September 30 Hernandez selected three possible suspects, including the appellant, from a photographic display. The record further reflects that two officers from the Los Fresnos police department, fearing that Carrisalez had suffered a heart attack and was not going to survive, obtained a positive identification of the appellant from Carrisalez, showing him one picture in his hospital room. Subsequently, on October 1, these same officers showed this photograph to Hernandez, who then made a positive identification of appellant. The record is devoid of any indication that the showing of one picture of appellant to Hernandez was accompanied by any overt suggestiveness by police authorities. Hernandez further positively identified the appellant on October 6, 1981 from a photographic display and on October 24, 1981 in a live lineup attended by appellant’s attorney. Hernandez was unwavering in his in-court identification and repeatedly testified that his identification of appellant was based upon his observations at the time of the offense. Finally, we note that all the testimony regarding the out of court pretrial identification procedures came in by virtue of appellant’s cross-examination. The State in no way attempted to bolster Hernandez’ in-court identification.

In 1967 the United States Supreme Court, in a trilogy of cases, laid down the federal constitutional standard as regards the identification of an accused. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In these cases the Supreme Court held that a criminally accused citizen was deprived of due process if he was not offered the opportunity to have his counsel present during a pre-trial show up. However, in Wade, supra, the Court determined that the in-court identification of an accused would be inadmissible unless it could be shown by clear and convincing evidence that the in-court identification was based upon observations at the time of the offense. Factors the Supreme Court considered relevant include: (1) the witness’ prior opportunity to observe the criminal act; (2) any discrepancy between the pre-lineup description and defendant’s actual appearance; (3) whether the witness has identified another individual prior to the alleged illegal lineup; (4) prior identification by the witness of the accused; (5) failure to identify the accused prior to the suggestive lineup; (6) amount of time elapsed between the crime and the alleged illegal lineup. Wade, supra. Whereas the Supreme Court has found that testimony regarding the out of court illegal lineup is per se inadmissible, Gilbert, supra, testimony regarding the in-court identification may be admissible depending upon the totality of the circumstances. Stovall v. Denno, supra.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, (1968) the Supreme Court first applied the standards enunciated in the Wade trilogy the term before to photographic displays prior to arrest and determined that the Stovall totality of the circumstances review would be applicable to testimony regarding pretrial photo lineups. Y/hile recognizing the inherent dangers of misidentification in such procedures the Court refused to adopt a blanket rule prohibiting such testimony; instead each case must be judged individually. The Court specifically held that “a conviction based on eyewitness identification at trial following a pre-trial identification by photo will be set aside ... only if the photo identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”; Simmons, supra, at 384 and 971. The Supreme Court also noted that while showing one photograph was somewhat suggestive and to be frowned upon, that Court nonetheless recognized the sometimes inherent necessity of such a procedure. The severity of the crime and the need to quickly apprehend the assailants may make such a procedure necessary and not impermissible per se. See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Writt v. State, 541 S.W.2d 424 (Tex.Cr.App.1976).

This Court has routinely followed the Supreme Court in this area of criminal law. In Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969) this Court followed the holdings of the Supreme Court and found that the in-court identification will only be inadmissible if the State fails to show by clear and convincing evidence that the identification is not tainted. The initial determination of taint is for the trial court to make. However, a defendant who claims on appeal that a trial court erred in allowing in-court identification has a difficult and heavy burden. Unless it is shown by clear and convincing evidence that the complaining witness’ identification was irreparably tainted, this Court will not reverse a conviction on these grounds. Jackson v. State, 628 S.W.2d 446 (Tex.Cr.App.1982).

As in Simmons, supra, we find that exigent circumstances required the showing of a single photograph to Hernandez. As in Simmons, supra, a very serious offense had been committed and the perpetrator was at large; the clues available to the police were inconclusive, although clearly implicating appellant. In the case sub judice the police had reason to believe that the appellant was responsible for one, possibly two capital murders. Two police officers had been shot, one killed instantly and one whose survival was doubtful. Car-risalez had identified appellant and the officers were confirming his identification with Hernandez. There is no indication that the police did or said anything suggestive in the actual showing of the picture to Hernandez. While the procedure used in this case is not to be encouraged, under the circumstances we do not find them to be unduly suggestive.

Assuming arguendo, that the procedure used in showing Hernandez a single photograph was in fact impermissibly suggestive, we find that the evidence clearly shows that Hernandez' in-court identification is of independent origin and is not based upon impermissible pre-trial procedures. We find that Hernandez’ special training in the army permitted him to make a very accurate identification of appellant. The lighting was very good; there is no indication from the record that Hernandez’ description of appellant was anything but accurate. There were no distractions and Hernandez, who had been riding with police officers for several years, could be expected to observe the suspect with more precision than would a layperson.

Appellant’s contention that these pre-trial procedures were unduly suggestive is without merit. While the better practice may be to get as many individuals as possible who fit the defendant’s description, it is not essential that all the individuals be identical; “neither due process nor common sense” requires such exactitude. Dickson v. State, 492 S.W.2d 267 (Tex.Cr.App.1973). Grounds of error numbers one through three are overruled.

In ground of error number four appellant alleges that the trial court committed reversible error in admitting over appellant’s objection testimony that Carrisalez identified appellant through an allegedly suggestive procedure. The same single photograph objected to above is at issue here.

Carrisalez had been severely wounded. He was not expected to survive, (as in fact, he didn’t.) We find the facts in Sto-vall, supra, to be controlling. As in Sto-vall, supra, the victim here was hospitalized in critical condition. Likewise, the perpetrator of a very serious offense had not yet been arrested. There is no indication in the record that the police exerted any pressure on Carrisalez nor recommended to him that the suspect in the picture was in custody. On the contrary, a nurse who witnessed the identification testified that Carrisalez became extremely agitated and excited immediately upon seeing appellant’s photograph. The nurse also indicated that after the identification was made, Carrisalez remained agitated and had to be repeatedly sedated. Under these circumstances we find that the pre-trial identification procedure utilized in this case was not unduly suggestive and the identification was based upon independent recollection by Carrisalez. See also Garza v. State 633 S.W.2d 508 (Tex.Cr.App.1982); Demouchette v. State 591 S.W.2d 488 (Tex.Cr.App.1979). Ground of error number four is overruled.

Appellant next alleges that the State failed to lay the proper predicate for admission of a “dying declaration” insofar as there was insufficient proof that Carrisalez was conscious of impending death and held no hope for recovery. He further alleges that the police officers were impermissibly suggestive in their manner of exhibiting appellant’s photograph. We disagree.

The statement by Carrisalez is per se hearsay and inadmissible unless it fits an exception to the hearsay rule. The predicate to admission of a so-called dying declaration is that the speaker be conscious of approaching death and have no hope for recovery; that the declaration was voluntarily made and not the product of persuasion; and the declaration must not be made in answer to interrogatories calculated to lead the deceased to make any particular statement. Art. 38.20, V.A.C.C.P. Martinez v. State, 533 S.W.2d 20 (Tex.Cr.App.1976).

Appellant claims that the State failed to show that the identification was made when Carrisalez was conscious of impending death and held no hope for recovery and that the statement was made in response to leading questions designed to elicit a certain response.

The testimony at trial established that Carrisalez was critically shot. The treating physician described the wound as a “sucking chest wound”; the bullet entered the lower part of deceased’s left chest, traversed through the upper part of the stomach, the left part of the liver, the gall bladder, the right part of the liver and then exited in the flank of the right side. The doctor further testified that it was a large wound that left lots of blood in the abdomen and shattered the right lobe of the liver and divided the left lobe in two. The doctor testified that Carrisalez was unable to talk as he was on a respirator, however he did know that he was in “serious condition”. The paramedics further testified that from the time they arrived at the scene of the shooting through the arrival at the hospital Carrisalez several times stated that he believed he was going to die and that he was “not going to make it”.

This Court has long held that the declarant’s state of mind may be inferred from circumstances surrounding the statement, such as the nature of the injury and the doctor’s testimony. Fambro v. State, 139 Tex.Cr.R. 480, 141 S.W.2d 354 (Tex.Cr.App.1940). Moreover it is not necessary that the declarant state in specific terms that he is conscious of impending death. Moore v. State, 127 Tex.Cr.R. 637, 78 S.W.2d 189 (Tex.Cr.App.1934); Whitson v. State, 495 S.W.2d 944 (Tex.Cr.App.1973). Finally the length of time Carrisalez lived after making the alleged dying declaration is immaterial. Whitson, supra. We find the evidence sufficient to show that Carri-salez was conscious of impending death and held no hope for recovery.

The testimony also does not support the contention that Carrisalez identified appellant as a result of questions designed to elicit a certain response. As previously detailed in our rendition of the facts, supra, Carrisalez, upon first viewing appellant’s photograph, became very agitated and subsequently had to be sedated. The procedure used was not suggestive given the circumstances. See Simmons, supra. The question asked by the officer, “Is this the man who shot you?”, is not a leading question. The fact that the statement was the result of a question asked does not invalidate the response. Lewis v. State, 128 S.W.2d 798 (Tex.Cr.App.1939); see also R. Ray, Law of Evidence, Vol. 1A, sec. 977 (Texas Practice 3rd ed. 1980). We find that the trial court did not err in admitting Carrisalez’ dying declaration and overrule ground of error number five.

Assuming arguendo, that the trial court erred in admitting both the identification of appellant and dying declaration by Carrisalez, we find all the other evidence of appellant’s identification as the perpetrator of this offense to be overwhelming. Error, if any, was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In ground of error number six appellant alleges that the trial court erred in admitting, during the sentencing hearing, statements made by appellant when he was hospitalized. He claims the statements were the result of an interrogation in violation of Miranda, supra. We find appellant’s argument to be tenuous at best; we cannot agree that the statement made by appellant was the result of an interrogation.

The testimony at trial established that after appellant was arrested he was interrogated by police officers in Edinburg. After telling police officers to look for a certain letter, he then invoked his right to counsel and as such Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

In Edwards, supra, the Supreme Court held that, once a criminally accused person invokes his right to counsel, said right must be scrupulously honored. Subsequent to appellant’s invocation of his right to counsel, assistant district attorney Hend-ley attempted to interrogate appellant. Hendley, upon entering the interrogation room where appellant was situated, asked appellant why he had shot Officer Rucker. In response to Hendley appellant immediately decked him and continued to beat him until restrained by several police officers. The following morning while hospitalized, appellant in the presence of two officers, made several threats to the effect that he would kill all the police when released. These statements were admitted against appellant during the sentencing hearing on the issue of future dangerousness.

Appellant alleges that since Hendley’s interrogation of appellant was in violation of his rights under Miranda, supra, and Edwards, supra, that he would not, but for this illicit interrogation, have been hospitalized, and therefore have made these admittedly damaging statements. Appellant’s argument fails for several reasons. First, we cannot agree that, but for Hendley’s interrogation, appellant would not have been hospitalized. Rather we believe that, but for appellant’s violent reaction to Hendley’s interrogation he would not have been hospitalized. An illicit interrogation does not authorize the appellant to assault the interrogator. Article 37.071 permits the trial judge great discretion in the punishment phase of a capital trial. Clearly this testimony was relevant as to appellant’s future dangerousness. Ground of error number six is overruled.

In ground of error number seven appellant objects to the admission of a news journalist’s testimony that appellant assaulted him. Appellant claims that the assault occurred while appellant was being transferred for arraignment on an unrelated charge for which he was subsequently acquitted. He claims that the testimony permitted the jury to speculate as to what appellant was in custody for and was therefore prejudicial. The trial judge, mindful of possible prejudice, refused to permit the showing of a videotape of the attack; he did permit the testimony, but limited such testimony to the actual attack and prohibited discussion as to the charge for which appellant was in custody at the time of the assault. Article 37.071 permits the trial judge great discretion in the punishment phase of a capital trial. Clearly this testimony was relevant as to appellant’s future dangerousness. We have repeatedly held that proof of unadjudicated extraneous offenses at the sentencing hearing of a capital case is admissible. Rumbaugh v. State, 629 S.W.2d 747 (Tex.Cr.App.1982); Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981). What is important in a capital sentencing hearing is that the jury have all the relevant evidence available upon which to make this most important judgment. Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979), see also Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Ground of error number seven is overruled.

Finally, appellant challenges the admission of testimony regarding an illicit sawed-off shotgun found in the trunk of the vehicle appellant used during the commission of the offense. Appellant claims that this is testimony of an extraneous offense and the State has failed to prove he committed the offense and therefore the testimony is inadmissible. See Phillips v. State, 659 S.W.2d 415 (Tex.Cr.App.1983).

Appellant claims that since he did not own the vehicle, the State had failed to show that he had knowledge that the prohibited weapon was in the vehicle. While we agree that the testimony proved that appellant was not the registered owner of the vehicle, we find that the evidence clearly showed that appellant was the only driver of the vehicle. When police located the vehicle in question, they asked appellant’s girlfriend if she owned the vehicle. The police officer testified, without objection, that she said that the vehicle was registered in her name, but that she did not own a set of keys for the car. She further stated that the appellant drove the car and that she had not seen the car since early the previous morning when appellant drove her daughters to school and took the car. In the car were found several personal belongings of the appellant. Finally, when appellant was arrested, the keys to the vehicle were found in his pants. We find that this testimony more than adequately connects appellant to the extraneous offense.

Assuming arguendo, that the complained of testimony was in fact inadmissible, we find that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Given the facts of the instant offense, the capital murders of two police officers for no apparent reason, we cannot say that testimony regarding a sawed-off shotgun could have at all contributed to the jury’s returning an affirmative answer to special issue number two. Ground of error number eight is overruled.

The judgment of the trial court is affirmed.

CLINTON, J., dissents,

TEAGUE, J., dissents on No. 5, 6, and 7.

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.


author: STEPHENS, Justice.

text:
    Luther Boyd HAMILTON, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-00340-CR.
    Court of Appeals of Texas, Dallas.
    March 16, 1984.
    Rehearing Denied April 12, 1984.
    Discretionary Review Refused Oct. 31, 1984.
    Tom S. McCorkle, Dallas, for appellant.
    Henry Wade, Dist. Atty., Kathi A. Drew, Asst. Dist. Atty., Dallas, for appellee.
    Before STEPHENS, WHITHAM and STEWART, JJ.
   STEPHENS, Justice.

Appellant, Luther Boyd Hamilton, was convicted in a trial before the court, of unlawfully carrying a prohibited weapon in violation of TEX.PENAL CODE ANN. § 46.02 (Vernon Supp.1984); he was sentenced to serve three days in jail and fined $100.00. On appeal, he asserts that 1) the trial court committed reversible error by denying his motion for acquittal because the only evidence offered by the State that tended to show appellant’s guilt was an inadmissible hearsay statement; 2) the trial court committed reversible error by finding appellant guilty because the evidence was insufficient to prove that appellant was not on his own premises or premises under his control. We agree with appellant’s first contention. Accordingly, we reverse the judgment of the trial court and render a judgment of acquittal.

Two police officers went to a residence at 3235 Idaho, in Dallas, in response to a robbery call. When the officers arrived, they saw the appellant approximately two to three feet from a tree; Charles Hum-phreys was standing beside the appellant. As the officers got out of their cars both the appellant and Humphreys approached them. The officer testified that Hum-phreys told them that the appellant had just dropped a pistol into the bushes at the base of the tree. The officers found a handgun at that location and arrested the appellant for carrying an illegal weapon.

Over a timely hearsay objection, the trial court allowed the policeman to testify as to his conversation with Hum-phreys. As a general rule, testimony concerning a statement made in the presence of the accused while he is not under arrest is admissible as an exception to the hearsay rule. Crestfield v. State, 471 S.W.2d 50 (Tex.Crim.App.1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1764, 32 L.Ed.2d 115 (1972). In this case, we cannot apply this general rule because there is no evidence in the record that appellant was in such close proximity that he heard or could have heard Humphrey’s statement. Consequently, we cannot hold that the statement was made in the appellant's presence. This hearsay testimony was the only evidence showing appellant to be in possession of the weapon just prior to the arrival of the police. It was an extrajudicial statement offered to prove the truth of the matter asserted, and the hearsay objection to its admission should have been sustained. That evidence failing, the evidence was insufficient to sustain the conviction. See Salas v. State, 403 S.W.2d 440 (Tex.Crim.App.1966). We therefore agree with appellant that the trial court committed reversible error by denying appellant’s motion for acquittal. In light of our disposition of the case on appellant’s first ground of error, we hold that it is unnecessary to consider his second ground of error.

The judgment of the trial court is reversed and a judgment of acquittal is hereby rendered.


author: WARREN, Justice.

text:
    Mitchell Lee CUMMINS, Appellant, v. PAISAN CONSTRUCTION COMPANY, Appellee.
    No. 01-83-0429-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 29, 1984.
    Rehearing Denied April 26, 1984.

      Richard Morrison, Krist, Gunn, Weller, Neumann & Morrison, Houston, Jim Coate, Pearland, for appellant.
    Marc A. Sheiness, Hicks, Hirsch, Glover & Robinson, Houston, for appellee.
    Before WARREN, BASS and COHEN, JJ.
   OPINION

WARREN, Justice.

The appellant asks this court to reinstate a default judgment previously entered by the trial court, but subsequently set aside.

The appellant filed suit against the appel-lee on October 5, 1981, to recover actual and punitive damages for injuries he sustained while working for the appellee as an independent contractor. Service of citation was prepared by the Brazoria County District Clerk’s office and returned to the appellant’s attorney, who transmitted it to the office of a constable in Houston for service.

On October 28,1981, the papers prepared by the District Clerk’s officer were served on J.H. Meyer, a registered agent of the appellee. Return of service was filed in the District Clerk’s office showing that service was made on J.H. Meyer by leaving a true copy of the writ, together with a certified copy of plaintiff’s original petition.

On December 30th, approximately 45 days after the citation had been returned to the District Clerk’s office, the trial court granted the appellant a default judgment as to liability and ordered a writ of injury as to damages and punitive damages.

On January 7, 1982, the appellee filed a motion to set aside the default judgment. On January 25th, the trial court heard this motion, as amended, granted a new trial, and ordered the appellee to pay the appellant’s attorney $400 for his expenses in arguing against the motion.

The appellee’s amended motion for trial alleged that service was effected by handling J.H. Meyer a copy of plaintiff’s original petition, which contained no court or cause number and that the petition was not accompanied by a citation. A copy of the petition was attached as an exhibit to the motion. The motion further alleged that it had a meritorious defense to the cause of action, supported by an affidavit of Billy Schuler, its construction superintendent, stating that the conditions on the day of the appellant’s accident were not hazardous, that the appellant told Schuler before beginning work that he had missed the previous few days of work because of a back problem, but that he was able to work on that day. The motion finally alleged that the appellee’s failure to answer was not intentional, or the result of conscious indifference on its part, and it offered to pay reasonable expenses incurred by the appellant.

At the hearing on the motion the appellee presented only the testimony of John Meyer, its president. Meyer testified that on the occasion when he was served he received two sheets of paper, which was a petition, that there was no court or document number on it, and that there was no information as to the process of receiving it. He also testified that he received a copy of a letter from plaintiff’s attorney to the constable, but that he gave the letter back to the process server. Meyer further testified that he forwarded the petition to his insurance agent.

The question for our determination is not whether the appellee satisfied the requirements entitling it to have the default judgment set aside, under the requirements of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), but whether there was evidence sufficient to allow the trial court to hold that service was legally deficient, thus relieving the appellee of the duty to file an answer.

The appellee failed to prove that the failure to answer was not intentional or the result of conscious indifference, as required by the rule established in Craddock. Although the appellee presented evidence that its president exercised due diligence by immediately forwarding the petition to the insurance agent, there is no evidence as to what diligence, if any, was exercised thereafter. A party seeking to set aside a default judgment must show that both he and any agent or representative entrusted with the duty of filing an answer did not fail to answer by reason of negligence or conscious indifference. Harris v. Lebow, 363 S.W.2d 184 (Tex.Civ.App.—Dallas 1962, writ ref d n.r.e.); Grammar v. Hobby, 276 S.W.2d 311 (Tex.Civ.App.—San Antonio 1955, writ ref’d n.r.e.). We reject the ap-pellee’s contention that the testimony regarding the defective service was sufficient to prove that the appellee’s failure to answer was not intentional, or the result of conscious indifference.

We must next consider whether the proof was sufficient in law to enable the trial court to find that service was defective. Although Meyer testified that the papers served on him contained no citation, this is insufficient at law to prove defective service, because the law provides that an officer’s return of citation regular on its face establishes a presumption of proper service, which presumption may not be overcome by the testimony of the defendant alone; such testimony must be corroborated. Ward v. Nava, 488 S.W.2d 736 (Tex.1972). In that case, the court held that a mysterious phone call urging the defendant to search for citation in his home and the defendant’s searching for the papers and promptly taking them to his insurance agent was sufficient to corroborate the defendant’s testimony that he was never personally served with citation.

In Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950), the court held that the appellants’ evidence that the property in question was their homestead, peacefully occupied by them as such for approximately eight years before suit, and upon which improvements were made after suit was filed, was sufficient to corroborate their testimony that they were never served with citation in a suit affecting title to their homestead.

We hold that the appellee’s filing with the court of a copy of the petition he allegedly received, which contained no certification by the clerk’s office, no court number, and no cause number was sufficient to corroborate Meyer’s testimony that no citation was attached to the petition. We consider the corroboration testimony in our case much stronger than that held sufficient in Ward, supra, or in Sanders, supra, and sufficient to create a fact issue for the trial’s determination. Since there was a fact issue regarding proper service of citation, it was the duty of the trial judge to resolve this issue, and it was within the discretion of the trial judge to grant a new trial, which act should not be disturbed on appeal except for a manifest abuse of that discretion. Farley v. Clark Equipment Co., 484 S.W.2d 142 (Tex.Civ.App.—Amarillo 1972, writ ref’d n.r.e.). We find no manifest abuse of discretion by the trial court in granting a new trial.

Affirmed.


author: ALLEN, Justice.

text:
    Ex parte Wanda M. MAY, Petitioner.
    No. 05-84-00694-CR.
    Court of Appeals of Texas, Dallas.
    Sept. 11, 1984.
    Rehearing Denied Dec. 12, 1984.
    Discretionary Review Granted Feb. 6, 1985.

      Kim R. Thorne, Grand Prairie, for petitioner.
    Henry Wade, Dist. Atty., Anne B. Weth-erholt, Asst. Dist. Atty., Dallas, for State.
    Before GUITTARD, C.J., and ALLEN and ROWE, JJ.
   ALLEN, Justice.

Wanda M. May appeals from the denial of habeas corpus relief. Petitioner contends that because she was found guilty of involuntary manslaughter pursuant to TEX.PENAL CODE ANN. art. 19.05(a)(2) (Vernon 1977), an information charging her with driving while intoxicated should be dismissed because both offenses arose out of the same automobile accident. For the reasons set forth below, we affirm.

We note at the outset that Texas has abandoned the carving doctrine. Ex parte McWilliams, 634 S.W.2d 815 (Tex.Crim.App.1982) (en banc), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982). In McWilliams, 634 S.W.2d at 824, the Court of Criminal Appeals set forth the applicable test to determine whether jeopardy has attached. We quote from McWil-liams:

We will now decide double jeopardy questions under the strict construction of the Constitutions of the United States and of this State. The prohibitions against being twice put in jeopardy for the same offense requires a test for defining the ‘same offense.’ The Supreme Court of the United States has provided such a test:
[T]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ... The Blockburger test is satisfied if each statutory offense requires the proof of a fact that the other does not. At trial there may be substantial overlap in the proof of each offense; however, it is the separate statutory elements of each offense which must be examined under this test. Brown v. Alabama, 619 F.2d 376 (5th Cir.1980). [Emphasis added.]

We now look to determine whether involuntary manslaughter and driving while intoxicated each require proof of a fact which the other does not. The elements necessary to establish the offense of involuntary manslaughter under TEX.PENAL CODE ANN. § 19.05(a)(2) are that: (1) the defendant; (2) operated a motor vehicle; (3) while intoxicated; (4) by accident or mistake; (5) causing the death of an individual; and (6) the defendant’s intoxication caused the death. Daniel v. State, 577 S.W.2d 231 (Tex.Crim.App.1979). The elements necessary to establish the offense of driving while intoxicated are that: (1) the defendant; (2) operated a motor vehicle; (3) while intoxicated; (4) upon a public road, highway, street, or alley. Johnson v. State, 517 S.W.2d 536 (Tex.Crim.App.1975).

Thus, involuntary manslaughter requires proof of facts which driving while intoxicated does not, namely, that the defendant caused the death of an individual and that the defendant’s intoxication caused the death. Further, driving while intoxicated requires proof of a fact which involuntary manslaughter does not, namely, that the vehicle was driven on a public road, highway, street, or alley. Therefore, since eacü offense requires proof of a fact which the other does not, petitioner’s assertion of double jeopardy must fail.

Affirmed.


author: DOYLE, Justice.

text:
    Peter Elliff CLAUSEN, Appellant, v. The STATE of Texas, Appellee.
    No. 01-83-0606-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 18, 1984.
    Rehearing Denied Dec. 6, 1984.

      John B. Holmes, Jr., Harris County Dist. Atty., Rory C. Flynn, Elaine Bratton, Harris County Asst. Dist. Attys., Houston, for appellee.
    Michael B. Charlton, Keith Hampton, Houston, for appellant.
    Before BASS, BULLOCK and DOYLE, JJ.
   OPINION

DOYLE, Justice.

This is an appeal from a conviction for the felony offense of failure to stop and render aid. The jury assessed punishment at five years, probated, and a $5000 fine.

Two persons were riding in a car on the night of October 29, 1982 when a Jeep motor vehicle (Jeep) approached their car from the rear. Moments earlier, the couple had noticed a young man walking along the sidewalk. The couple saw the Jeep swerve to avoid a collision with their car, and veer in the general direction of where they had seen the young man. Immediately afterward, the couple heard a loud boom and saw the Jeep swerve back in front of them and drive away at a much faster rate of speed. The couple chased the Jeep until the wife was able to write down its license plate number. They then returned to the scene of the accident and found a young man lying unconscious in a ditch. An ambulance was called, which rushed him to the hospital.

Officers of the Houston Police Department found that the Jeep was registered to appellant’s wife. She told the officers that her husband had been driving the Jeep the night of the accident. Police lab tests showed that paint samples taken from the Jeep matched samples of paint taken from the young man’s clothes at the hospital.

The first of appellant’s six grounds of error alleges that the trial court erred in overruling appellant’s motion to quash the indictment. Appellant contends that the indictment was defective under art. 21.09, Tex.Code Crim.Pro.Ann. because it failed to adequately describe the motor vehicle.

The indictment alleged that the appellant:

While driving and operating a motor vehicle upon á public highway, injured Clay Davis, hereafter styled the Complainant, by causing his vehicle to collide with .the Complainant, a pedestrian, and the Defendant intentionally and knowingly failed to stop and render to the Complainant reasonable assistance, for which there was an apparent need, by failing to take, and make arrangements for taking, the Complainant to a physician and hospital for medical and surgical treatment.

Article 21.09 sets forth the circumstances by which personal property must be described:

If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice.

Appellant bases his first ground of error on the holding in Drumm v. State, 560 S.W.2d 944 (Tex.Crim.App.1977). There, the court reasoned that an accused is entitled to notice of the particular cause for suspension, because there are several grounds for suspension of a license. In the case at bar, there is no analogy to the situation in Drumm. Further, appellee cites a recent case exactly on this point. In Morales v. State, No. 84-27-047 (Tex.App.—Corpus Christi, July 4, 1984) (not yet reported), the court held that the same wording that appellant challenges here sufficiently notified appellant of the means of transportation at the time of the offense. The court stated that an indictment that tracks the language of the statute is legally sufficient.

If a description is essential, then it must be set forth in the indictment. Thomas v. State, 621 S.W.2d 158 (Tex.Crim.App.1981). In the present case, the description of the car was not essential to the charge, and the indictment tracks the language of the statute. Morales v. State, supra. Appellant’s ground of error one is overruled.

Ground of error two alleges trial court error for failure to quash the indictment due to duplicity. Appellant argues that the indictment is duplicitous because it alleges not only a failure to stop and render aid, but also a failure to exercise due care. A failure to stop and render aid violates art. 6701d, sec. 38, V.A.C.S. (1977), while the failure to exercise due care is a violation of art. 6701d, sec. 79, V.A.C.S. (1977).

Section 38 provides:

The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene until he has fulfilled the requirements of sec. 40.

Section 79 provides:

Notwithstanding other provisions of this Article every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any obviously confused or incapacitated person upon a roadway.

Although the language of the indictment does embody portions of both offenses, the allegation of the felony offense of failure to stop and render aid necessarily includes the misdemeanor offense of failure to exercise due care. Appellant’s contention of duplicity was rejected by the Texas Court of Criminal Appeals in Nichol v. State, 653 S.W.2d 768, 771 (Tex.Crim.App.1981): “When the allegation of one offense necessarily includes another offense, no violation of the rule against duplicitous pleading occurs.” Appellant’s second ground of error is overruled.

In the next ground, appellant contends that it was error for the trial court to overrule his first motion to suppress his confession on the ground that he had invoked his right to counsel.

Appellant testified in the hearing on the motion that he had told Officer Arraiza of the Houston Police Department that he was trying to contact an attorney. The issue thus becomes whether that statement was sufficient to invoke the right to counsel.

Officer Arraiza read appellant his Miranda rights; however, there is conflicting testimony as to exactly when this occurred. Appellant did agree that he was asked two or three times whether he understood his rights. He also testified that he voluntarily gave information after having been given the Miranda warning.

Appellant cites Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) to support his contention that his confession should have been suppressed because he had invoked his right to counsel. The rule, as stated in Edwards, is that “waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege ...” Id. at 482, 101 S.Ct. at 1883. The distinction between Edwards and our case lies in the fact that after voluntarily giving information, Edwards told the detectives that he wanted an attorney. Id. at 479, 101 S.Ct. at 1882. The next day Edwards was coerced into giving a statement after having stated that he did not want to talk to anyone. Id. Here, appellant was only questioned once and never indicated that he wanted an attorney present at the questioning. It is also clear from appellant’s testimony that the circumstances surrounding his alleged revocation of right to counsel comply with the “knowing and intelligent” part of the standard. Appellant knew his vehicle had been in an accident; he knew he was being asked to give a statement about the accident; he understood the warning, and yet he volunteered information after the warning.

Appellant argues that the constitutional standard requires that interrogation must cease if counsel is requested in any manner. Appellant cites several cases from other jurisdictions to support his argument. These cases all indicate that the state has the burden to establish waiver. In Maglio v. Jago, 580 F.2d 202 (6th Cir.1978), the court supported its conclusion that the state had not met its burden by examining the situation during the questioning: “... all the facts established below demonstrate that Maglio was confused about his rights, uncertain whether he could have a lawyer appointed for him during questioning, and unsure of the role of the prosecutor who took his recorded statement.” Id. at 206. No similar circumstances were present during Clausen’s questioning. It has been held that if the actions attempting to reach an attorney are equivocal, then the individual’s fifth amendment rights must be respected. Nash v. Estelle, 597 F.2d 513 (5th Cir.1979) (en banc). However, as stated in Gorel v. United States, 531 F.Supp. 368 (S.D.Tex.1981), what is certain and clear to all present at the time may be made to appear equivocal only because of the manner in which it is recounted. Id. at 372.

The court should not presume that any effort to contact an attorney represents the invocation of the right to counsel if the totality of the circumstances rebuts the presumption. Id. at 372.

In Curtis v. State, 640 S.W.2d 615, 618 (Tex.Crim.App.1982), the reference to an attorney was very similar to the one made in the case before us. The Court stated:

The inquiry was about how he would be provided a court appointed attorney, and came during the course of a conversation with an officer who ultimately took the written confession, but before the latter actually read the warning. However, the officer testified that appellant said he “wanted to go ahead and give ... the statement.” We find neither the incident nor the inquiry was tantamount to invocation of right to have counsel present during custodial interrogation.

All of the circumstances surrounding appellant’s questioning indicate that he was intelligent and fully understood the Miranda warnings, there was no suggestion of coercion, and that he did not want counsel at that time. Appellant’s third ground of error is overruled.

In appellant’s fourth ground of error, he urges that the trial court erred in overruling the second motion to suppress the confession for failure to take him before a magistrate for his warnings. Although this was not done, the court found that appellant had been warned in compliance with T.C.C.P., art. 38.22 (1981) and that his confession was given voluntarily. Under such circumstances, the law is well settled that failure to comply with the provisions of art. 15.17 of the T.C.C.P. (1981) does not invalidate the confession. Von Byrd v. State, 569 S.W.2d 883, 894 (Tex.Crim.App.1978). This ground of error is overruled.

In ground of error five, appellant alleges that the evidence does not identify him as the driver of the ear that injured Clay Davis.

The state correctly points out that Davis was identified at trial as the complainant and that appellant made no objection. While there is no direct evidence showing that appellant struck Davis with his vehicle, there is ample circumstantial evidence to this effect in the record. Appellant testified in the motion to suppress that his vehicle had been in an accident; police compared paint samples taken from appellant's vehicle with samples taken from Davis’ clothes that night and they matched; appellant testified he had no memory of what had happened before he woke up at 4 a.m. in his Jeep in a parking lot in the general area of the accident; and he could not offer an explanation of the cracked windshield or a large dent in the Jeep. Ground of error five is overruled.

In his final ground of error, appellant claims that the first paragraph in the charge to the jury amounted to a comment on the weight of the evidence. The charge read as follows:

Before you would be warranted in convicting the Defendant in this case, you must find from the evidence beyond a reasonable doubt that the defendant was the driver of a vehicle involved in an accident resulting in injury to another person, that the Defendant, at that time, knew that he had been involved in the accident, that he intentionally or knowingly refused or failed to remain at the scene of the accident and render reasonable assistance to an injured person involved in the accident, including the caring or the making of arrangements for the caring, of such injured person to a physician, surgeon, or hospital for medical or surgical treatment, and that it was apparent that such treatment was necessary. If you have a reasonable doubt as to the existence of any one or more elements, you would be bound to acquit the Defendant. (Emphasis added)

Specifically, appellant argues that the underlined phrases in the court’s charge to the jury unduly emphasized particular issues and that the charge as worded required the state to prove less than was charged in the indictment. We do not agree.

It appears that special care was taken to assure that the instruction tracked the language of the indictment. Viewing the charge as a whole, it did not single out any particular fact and emphasize it above others as was found in Beard v. State, 123 S.W. 147, 149 (Tex.Crim.App.1909). Further, we find no evidence that the charge isolates any elements of fact in such a way that the jury was directed to give them undue attention. Appellant’s sixth ground of error is overruled.

The judgment of the trial court is affirmed.