text:
    STATE of Tennessee, Appellee, v. Gregg A. HAMRICK, Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Jan. 29, 1985.
    Permission to Appeal Denied by Supreme Court April 1, 1985.

      William M. Leech, Jr., Atty. Gen. & Reporter, Wayne E. Uhl, Asst. Atty. Gen., Nashville, Charles Hawk, Dist. Atty. Gen., Edward Bailey, Roger Delp, Asst. Dist. At-tys. Gen., Kingston, for appellee.
    Alfred Lee Hathcock, Jr., Lenior City, for appellant.
   OPINION

O’BRIEN, Judge.

The defendant, Hamrick, was jointly indicted by the Loudon County Grand Jury with Joe Dyer and Harold Dean Johnson on a charge of assault with intent to commit first degree murder. At a joint trial, which lasted some five days, Dyer and Johnson were acquitted. Defendant was found guilty of aggravated assault. At a sentencing hearing he was found to be a Range I standard offender and sentenced to serve four (4) years in the penitentiary.

Defendant presents a number of issues by several of which he contests the weight and legal sufficiency of the evidence. In order to address this issue a review is essential of the evidence presented during this five day trial. John Randall Underwood was severely burned on the evening of August 19, 1982, according to his testimony, about 10:30 to 10:35 p.m. He testified the three defendants attacked him from behind, in an alley near his mother’s house, pushed him to the ground, poured gasoline on his back and set him afire. It is not contested that Underwood’s injury was primarily caused by the ignition of some flammable substance, identified as gasoline. The record seems to indicate that the intensity of the flame was enhanced by the burning of a polyester shirt he was wearing at the time. The injuries sustained by him were about the upper part of his body.

The evidence leading up to, and surrounding, the incident in which Underwood was injured is hotly contested and contradictory. The defendants presented an alibi defense, supplemented by the testimony of nearly twenty witnesses. The difficulty in pinpointing the verity of this defense is compounded by the fact that the majority of these witnesses approximated the time at which they placed each of the three defendants at a place other than where the offense occurred. Dyer, Johnson and Underwood appear to be in accord that they were together on August 19, 1982, and on either the 17th or the 18th of August also. Johnson had possession of Hamrick’s black, Pontiac automobile. From this point onward, their stories differ. Dyer and Johnson say that Underwood was traveling with them for the purpose of trying to sell some automobile hubcaps. They both testified, and there was some corroboration, that Underwood was given the use of the automobile on one or two occasions during this interval, and went off by himself endeavoring to dispose of the hubcaps which, it is implied, he had stolen. It is not refuted that on the 19th of August, he bought $5 worth of gasoline for the automobile on credit, leaving his driver’s license and Ham-rick’s automobile registration number as security until the purchase price was paid. Underwood says Johnson persuaded him to purchase the gasoline so they could go to Madisonville, an adjacent community, to work at a roofing job he was engaged in there. Dyer and Johnson say he purchased the gasoline in order to have the use of the car in his endeavor to sell the stolen hubcaps. Hamrick, who had been out of town on a trip with his employer, returned on the 19th and learned from Dyer and Johnson about the connection between his automobile and the gasoline, and the stolen hubcaps. At about 6:00 o’clock he confronted Underwood about payment for the gasoline. Underwood testified he agreed he would pay for it. This meeting seems to have concluded with a reasonable degree of amenity. Subsequently Hamrick confirmed through a telephone call with a county police officer that his car was connected with the gasoline purchase, as well as a stolen hubcap investigation. It is from this point on that the time element becomes highly crucial, as well as almost hopelessly confused.

Underwood testified that about 9:00 p.m. he had met with his estranged wife on a neighborhood street corner. As they were engaged in conversation Hamrick, approached on foot, as he put it, “cussing and hollering about the gas bill that I owed him. He said that the cops were after his car, or something, and I’d better take care of it.” An altercation arose between Ham-rick and Underwood’s wife, with him standing in the background. Hamrick left about 9:15 p.m. Underwood then went home, borrowed $5, and went to the service station to pay the gas bill. The next pertinent time in his testimony was about 9:45 when he saw all three defendants standing in front of Hamrick’s house while he was walking from his home to that of his brother-in-law. He returned to his mother’s house, and at ten minutes pass ten by the clock, which he says was accurate, he left again. After lingering about outside the residence for ten or fifteen minutes he then decided to walk back to his brother-in-law’s house to make another attempt to see his wife. As he was walking through an alley, two or three blocks from his house, he was attacked from the rear and knocked to the ground. He was stunned by a blow to his head but recognized Hamrick who was pouring gasoline on him. He says while Johnson held him Dyer took a match out of a matchbook, lighted it, and then the rest of the book, and threw the matches on him. He estimated the time of the attack to be between 10:30 and 10:35 p.m.

Mrs. Doris Underwood, the victim’s mother, fixed the time when he returned to his home in a burned condition to be around 10:30 p.m. The family administered first aid and due to her hysteria it was some fifteen minutes before she went to a neighbor’s to place a telephone call for an ambulance. It took another fifteen minutes for help to arrive. The ambulance came at 11:01 p.m.

Officer Tom Jessen of the Loudon County Sheriff’s Department testified that Ham-rick called him at 8:50 p.m. on August 19, 1982. He returned the call at 9:10 and advised Hamrick about the gas purchase and the stolen hubcaps, and that his automobile was involved. Hamrick called again about 9:30 and told him that Underwood was going to pay the gas bill and informed him where the hubcaps were hidden.

Hamrick testified and confirmed he had placed the first call to Jessen at 8:50 p.m. He said that between 9:30 and 9:35 he left his house to go to his employer’s residence, a short distance away, to get his employer’s automobile which he intended to use to take Johnson to visit his mother at the hospital. The police confirmed that he was in a neighborhood convenience store at 9:45 p.m.. He says he then went up Interstate Highway 75 toward Knoxville to Cedar Bluff Road and arrived at the Park West Hospital at 10:10 p.m. according to the clock in the automobile. He let Dyer and Johnson out of the automobile and watched as a security guard admitted them to the hospital. He then drove back home, where he says he arrived at 10:31, by the clock. He then showered and was standing in the living room combing his hair when he heard a siren which sounded to him like a fire truck. The sound came from behind the house.

Mrs. Ruby Hamrick, mother of Gregg Hamrick, testified the three defendants left her home a little before 10:00 o’clock to go to the Park West Hospital. She said that Hamrick returned from the hospital about quarter to eleven. She explained that an earlier statement to the police that it might have been about eleven o’clock when he came in was in error because he was there before the 11:00 o’clock television news came on. She testified that he was lying on the bed when they heard the ambulance go by and he commented that it sounded as if it were right at the back alley.

Joe Dyer testified it was between 9:30 and 10:00 o’clock when Hamrick took them to the hospital. They were going to sit up that night at the hospital with Johnson’s mother because she was in critical condition. When they arrived at the hospital a little past ten the security guard let them in. He was aware of the time because of a television program which was on when they entered the waiting room in the hospital. They remained at the hospital until about 1:00 a.m., after Mrs. Johnson had expired. They returned to the Hamrick home about 1:30 a.m. This was confirmed by the police. In a prior statement to the police he said they arrived at the hospital about 9:30 p.m. The distance from Lenoir City to the hospital was about eleven miles.

Dyer presented nearly twenty witnesses, all of whom were relatives or family friends of Dean Johnson. All of these witnesses placed Dyer and Johnson in the hospital prior to or in the vicinity of 10:00 o’clock. One of these, Barbara Gossage, testified she had taken an elderly friend home from the hospital and delivered her to her apartment in the neighborhood where the attack on Underwood allegedly took place. She was parked in the alley in the vicinity of where it was supposed to have occurred for ten or fifteen minutes about 10:30 to 10:35 p.m. on the night of August 19th. Nothing unusual occurred while she was there.

Johnson did not testify. In an earlier statement to the police he says they left the Hamrick home about 9:10 or 9:15 p.m. Hamrick had some errands to run for his employer and they arrived at the hospital about 10:25 p.m. or a little later. He told the officers they went by the old road to the hospital, as opposed to the interstate highway. His statement to the police confirmed Dyer’s testimony that when they arrived back at the Hamrick house from the hospital about 1:00 a.m. they were met by the police who questioned them about the assault on Underwood.

Michael Ray Davis, security guard at the hospital, testified that Johnson and Dyer arrived at the hospital between 10:35 to 10:40 p.m. in a gold colored Ford. The hospital doors were secured at 8:30 p.m. and he was stationed at the south entrance between 10:30 and 11:30 to observe incoming and outgoing personnel at the shift change. He had just begun this procedure when defendants arrived at the hospital. He remembered the time because there was a lull in the pedestrian traffic through the doors at this particular hour. On cross-examination he agreed that another such lull occurred between 11:15 and 11:30 and it was just as likely defendants could have arrived at that hour.

The evidence clearly establishes that the assault on Underwood took place somewhere between 10:30 and 11:00 p.m. on the night in question. The majority of the witnesses put Dyer and Johnson in the hospital sometime before 10:00 o’clock and there is no evidence whatsoever in the record that they left from there prior to 1:00 a.m. the next morning. On the other hand Hamrick claims they arrived at the hospital at ten after ten. Dyer testified they arrived a little past ten o’clock which contradicted his statement to the police that they arrived at 9:30. Johnson’s statement to the police placed them at the hospital at 10:25, or a little later. The only completely unbiased, impartial witness to testify was the security guard who placed the three of them at the hospital entrance between 10:35 to 10:40. Under the evidence the other time settings by all the witnesses were vague, or impossible if defendants are to be believed, to the point that the jury could properly have concluded all of the defendants could have participated in the assault. For whatever reason they chose to acquit Dyer and Johnson, but convicted Hamrick. On the issue of the sufficiency of the evidence the United States Supreme Court has said:

“... The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be.... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ (Citation deleted). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Citation deleted). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The court went on to say:

“the question whether the evidence is constitutionally sufficient is of course wholly unrelated to the question of how rationally the verdict was actually reached. Just as the standard announced today does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfinder (sic) — if known.” Jackson v. Virginia, supra, 99 S.Ct. p. 2789, note 13.

It is an equally sound principle that verdicts as between two or more defendants tried together in a criminal case need not demonstrate rational consistency. Pulley v. State, 506 S.W.2d 164 (Tenn.Cr.App.1973). The evidence in this case meets the requirements of Jackson, supra, and T.R.A.P. Rule 13(e).

Defendant contends he was denied effective assistance of counsel at trial because of his attorney’s acute illness during the trial. The trial judge stated as part of his ruling at the hearing on the motion for new trial that he was aware that Hamrick’s counsel was having difficulty during the trial, and that at one time he had been taken to Loudon County Memorial Hospital. As the result of these happenings the trial judge consulted with counsel personally to observe his condition, and informed him at the time that the court would declare a mistrial if he was unable to continue. Counsel informed the trial judge that he was having some difficulty, but after he had rested, had been administered some insulin, and had something to eat, he was feeling good enough to continue. The judge continued to observe him during the course of the trial and when there was any appearance of his having further difficulty recesses were called. During the recesses the judge discussed the trial with counsel and observed that he was totally lucid about every portion of the trial. The trial judge was satisfied with the quality of counsel’s judgment and was convinced from his discussions with him and his observations at the time that he was competent to continue. Counsel relies on our Supreme Court case of Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975) in which the court chose to measure the range of competence demanded of attorneys in criminal cases by the criteria set forth in United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973); and the Sixth Circuit case of Beasley v. United States, 491 F.2d 687 (6th Cir.1974), and declined to establish any precise nomenclature or lay down any specific standards or guidelines for that purpose.

Quite recently, in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court discussed DeCoster, supra, among various other federal decisions, in analyzing the proper standard for attorney performance in defense cases. In doing so they held that a convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First the defendant must show that counsel’s performance was deficient. Second, the defendant must show that the deficient performance prejudiced the defense.

We are in accord with the judgment of the trial court in this case that trial counsel was neither incompetent nor ineffective. While the record shows defendant’s counsel was beset with physical ailments at the time of trial the court below was aware of his infirmity and took careful note to see that he • was able to perform as defense counsel. We find nothing in the record to suggest Hamrick’s counsel did not function effectively. Moreover, both Dyer and Johnson were represented by competent and capable counsel. There was nothing incompatible in the defense raised by the three defendants. They joined in a mutual trial strategy. There is nothing in this record to show that the defendant was not adequately represented.

Defendant says the. sentence imposed upon him evidenced the failure by the trial judge to consider mitigating factors in the case. Defendant does not set out in his brief any of the mitigating factors which he considers to be in his favor, nor do we, after an examination of T.C.A. § 40-35-110 find enumerated there any factors which would militate in defendant’s favor. The sentence was properly imposed in accordance with the provisions of T.C.A. § 40-35-109(a) and T.C.A. § 40-35-501(c). Defendant received a Range I sentence with a release eligibility classification of thirty percent (30%). The punishment for aggravated assault is a penitentiary sentence of not less than two (2) nor more than ten (10) years. T.C.A. § 39-2-101(c). The sentence of four (4) years was well within the statutory limits prescribed for the conviction offense and thus is not to be considered excessive. Tillery v. State, 565 S.W.2d 509 (Tenn.Cr.App.1978).

The judgment of the trial court is affirmed.

WALKER, P.J., and DWYER, J., concur.


source: Caselaw Access Project

author: ODOM, Judge. CAMPBELL, Judge,

license: Public Domain

text:
    Ex parte Ronald Curtis CHAMBERS.
    No. 69,260.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 5, 1984.
    Rehearing Denied March 27, 1985.
    Vincent W. Perini, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Ruth Lown and Gregg Long, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a post-conviction habeas corpus application filed pursuant to Art. 11.07, V.A.C.C.P. The application was ordered filed and set for submission “on the allegations that the admission of Dr. Grigson’s testimony violated the applicant’s rights under the Fifth and Sixth Amendments to the United States Constitution.”

Petitioner was convicted of capital murder and the death penalty was assessed. On appeal the conviction was affirmed. Chambers v. State, 568 S.W.2d 313. It is now contended that the psychiatric testimony used during the punishment phase of the trial was improperly obtained through an interview of appellant by Dr. Grigson without appellant having been advised of his Fifth Amendment privilege. Reliance is placed on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359, which was decided after appellant’s trial and appeal. In Smith the Court held:

“The considerations calling for the accused to be warned prior to custodial interrogation apply with no less force to the pretrial psychiatric examination at issue here. Respondent was in custody at the Dallas County Jail when the examination was ordered and when it was conducted. That respondent was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government informant, or prosecuting attorney, is immaterial. When Dr. Grigson went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent’s future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a post-arrest custodial setting. During the psychiatric evaluation, respondent assuredly was ‘faced with a phase of the adversary system’ and was ‘not in the presence of [a] person [ ] acting solely in his interest.’ [Miranda v. Arizona, 384 U.S. 436] at 469, 16 L.Ed.2d 694, 86 S.Ct. 2602, [at 1625] 10 Ohio Misc. 9, 36 Ohio Ops.2d 237,10 A.L.R.3d 974. Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.
“The Fifth Amendment privilege is ‘as broad as the mischief against which it seeks to guard,’ Counselman v. Hitchcock, 142 U.S. 547, 562, 35 L.Ed. 1110, 12 S.Ct. 195 [197] (1892), and the privilege is fulfilled only when a criminal defendant is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.’ Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489 [1493,] 12 L.Ed.2d 653 (1964). We agree with the Court of Appeals that respondent’s Fifth Amendment rights were violated by the admission of Dr. Grigson’s testimony at the penalty phase.”

When the district court originally ruled on the application for habeas corpus, it found appellant had not made a trial objection on the matter, and alternatively found that Estelle v. Smith should not be given retroactive application. On the basis of these findings the district court recommended that relief be denied.

This Court in other post-Smith cases involving trials occurring before the Smith decision has found the failure to object did not constitute a waiver, and has given retroactive application to the Smith decision. Mays v. State, 653 S.W.2d 30; Ex parte Demouchette, 633 S.W.2d 879. We therefore rejected the findings upon which the district court recommended that relief be denied. The record before us, however, did not clearly reflect whether or not the requirements of Estelle v. Smith were violated in this case. We therefore directed the district court to conduct a hearing to develop the facts on the matter, and then to enter findings of fact. A hearing has been held and the record and new findings by the trial court have been received by this Court.

In again recommending that relief be denied, the trial court relies on the fact that during consultation with petitioner, at some indefinite date before he was interviewed by Dr. Grigson, his trial attorneys advised him to speak to no one except counsel, and specifically instructed him not to talk to any psychiatrists because such evidence could be used against him. We do not agree that such consultation with counsel at some indefinite date prior to the interview with Dr. Grigson satisfies the requirements of Estelle v. Smith, supra. Advising a client not to talk is not the same as informing him at the beginning of interrogation that he has “a constitutional right not to answer the questions put to him.” Estelle v. Smith, supra. The testimony of Dr. Grigson at the hearing in the trial court is uncontradicted: petitioner was not advised that he had a constitutional right not to answer the questions put to him by Dr. Grigson. See Mays, supra.

Relief is granted. The conviction is set aside and petitioner is ordered remanded to custody of the Sheriff of Dallas County to answer the indictment pending against him in Cause No. F75-4282-K.

It is so ordered.

CAMPBELL, Judge,

concurring.

Applicant was convicted in 1976 of capital murder. In this writ of habeas corpus he challenges the conviction on the basis that he was deprived not only of his Fifth Amendment right as elucidated in the majority opinion, but also of his Sixth Amendment right to counsel. While I concur with the judgment of the Court reversing applicant’s conviction, I am also of the opinion that his Sixth Amendment rights were clearly violated.

The evidence adduced at the evidentiary hearing was uncontradicted that applicant had both appointed and retained counsel at the time that Dr. Grigson was appointed to evaluate applicant. The record is also undisputed that Dr. Grigson evaluated the applicant on the very same day that the trial judge ordered him appointed and that applicant’s lawyers were not given advance notice that Dr. Grigson would evaluate their client; nor were counsel given the opportunity to consult and advise applicant regarding Dr. Grigson’s appointment and evaluation. Finally, applicant carried his burden in showing that counsel was unaware that Dr. Grigson’s appointment and evaluation would encompass the issue of petitioner’s “future dangerousness”.

The United States Supreme Court in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) unanimously held that a person under indictment for capital murder, who has counsel representing him, is entitled under the Sixth Amendment to consult with his attorneys prior to any psychiatric evaluation. Under the Supreme Court’s holding in Smith, counsel representing a capital defendant is entitled to be made aware of a pending psychiatric evaluation and to advise and prepare his client prior to any evaluation occurring. Estelle v. Smith, supra, at 476, 101 S.Ct. at 1879. (concurrence, Rehnquist, J.). The facts in this case are indistinguishable from Smith insofar as petitioner’s Sixth Amendment claim is concerned.

This Court in capital murder cases has uniformly followed the teachings of Smith. Ex Parte Demouchette, 633 S.W.2d 879 (Tex.Cr.App.1982); Fields v. State 627 S.W.2d 714 (Tex.Cr.App.1982); Mays v. State, 653 S.W.2d 30 (Tex.Cr.App.1983). There is no question but that Smith is to be applied retroactively. Battie v. Estelle, 655 F.2d 692 (5th Cir.1981); Cf. Fields. supra, (McCormick, J. dissenting.)

The issue that requires further development in the majority opinion is whether the applicant has in fact waived any constitutional error by failing to timely and properly object at trial to the admission of the evidence in question. This Court has, in the past, not applied a contemporaneous objection rule to this type of error. See Demouchette, supra, Fields, supra, and Mays, supra. Recently, however, this Court has applied a contemporaneous objection rule in a non-capital direct appeal. Parker v. State, 649 S.W.2d 46 (Tex.Cr.App.1983).

In Parker, supra, Presiding Judge Onion applied what he perceived to be a “waiver of constitutional error” rule enunciated by the United States Supreme Court in Engle v. Isaacs, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), and held that the fact that an objection may have been futile at the time of Parker’s trial, such futility did not necessarily constitute cause for Parker’s failure to object.

In Engle v. Isaacs, supra, the Supreme Court held that before a federal court exercises it’s habeas corpus jurisdiction pursuant to 28 U.S.C.A. 2254, interests of comity demand that a petitioner demonstrate “cause and prejudice” if he has failed to follow State procedural rules, such as failing to timely object. If a federal court finds that there has been a “state procedural default” then a petitioner must demonstrate ‘cause and prejudice” for the default. In Engle the petitioner argued that any objection on his part would have been futile; the Supreme Court rejected the futility of an objection as “cause”. However the Court specifically left open the question of whether the novelty of a constitutional claim would ever establish “cause”. Engle, supra, at 130, 102 S.Ct. at 1573.

The question left open in Engle was answered just last term in Reed v. Ross, — U.S. —, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). In Reed, supra, the United States Supreme Court established that, as far as exercise of federal habeas jurisdiction by a federal court reviewing a state criminal conviction, “cause" is established when the novelty of a constitutional right could not reasonably have been known by competent counsel at the time of trial. (emphasis added). That Court specifically held “that where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” Id., 104 S.Ct. at 2910.

I submit that under the Supreme Court’s analysis, applicant in the case sub judice would have a forum in federal court. The constitutional violation here challenged could not reasonably have been known to counsel at the time of trial since it was not a known right until six years after the trial.

Of equal significance to this writer is this State’s own procedural default rule. While the teachings of Engle and Reed may be instructive, they are in no way binding on this Court. The rules enunciated in Engle v. Isaacs and Reed v. Ross concern the exercise of federal habeas jurisdiction once a State procedural default has been shown. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). I do not interpret these cases as attempting to impose a federal procedural waiver standard to be used by State courts.

This Court has for at least twelve years held that a defendant has not waived his right to assert a constitutional violation by failing to object at trial if at the time of his trial the right had not been recognized. Ex Parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.1972); Ex Parte Sanders, 588 S.W.2d 383 (Tex.Cr.App.1979); Ex Parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.1974); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976); Cuevas v. State, 641 S.W.2d 558 (Tex.Cr.App.1982). In view of these cases decided by this Court and in view of the extension by the Supreme Court of the doctrine in Engle v. Isaacs to its current posture in Reed v. Ross, I would reaffirm the holding in Cuevas, supra, that “where a defect of constitutional magnitude has not been established at the time of trial, the failure of counsel to object does not constitute waiver”, and I would overrule Parker, supra, to the extent that it is in conflict.

With the foregoing in mind, I concur with the judgment of the Court.

W.C. DAVIS, CLINTON, McCORMICK, TEAGUE and MILLER, JJ., join this opinion as well as the majority opinion.


author: CAMPBELL, Judge. CLINTON, Judge,

text:
    Donald Eugene WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 192-83.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 6, 1985.

      John G. Tatum, Dallas, for appellant.
    Henry Wade, Dist. Atty., Anne B. Weth-erholt, Luther C. Laman and Renie McClellan, Asst. Dist. Attys., Dallas, Robert Hut-tash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of forgery pursuant to V.T.C.A. Penal Code, Section 32.21 and punishment was assessed by a jury at life imprisonment. See V.T.C.A. Penal Code, Section 12.42(d). Appellant appealed his conviction to the Dallas Court of Appeals, wherein the conviction was reversed and a judgment of acquittal was ordered. Williams v. State, 646 S.W.2d 630 (Tex.App.—Dallas 1983). We granted the State’s petition for discretionary review in order to determine whether the Court of Appeals erred in finding that the evidence was insufficient to support the conviction and whether the Court of Appeals erred in finding the trial court should have granted the appellant’s motion for mistrial based upon improper jury argument. Finding merit in the State’s petition, we reverse the Court of Appeals and affirm the judgment of the trial court.

Omitting the formal parts, the indictment in the instant case charged that appellant:

“did then and there intentionally and knowingly with the intent to defraud and harm another, passed to Faye Norwood a forged writing knowing such a writing to be forged, such writing had been so made that it purported to be the act of Janice Chaffe, who did not authorize the act, and said writing was a Republic Money Order of the tenor following....”

In order to prove that the appellant committed the offense of forgery by passing, the State must show that the appellant (1) with intent to defraud or harm another (2) passed (3) a writing (4) that purported to be the act of another and (5) that other persons did not authorize the act. See Section 32.21(a)(1)(A), supra; Nolan v. State, 645 S.W.2d 443 (Tex.Cr.App.1983) and Landry v. State, 583 S.W.2d 620 (Tex.Cr.App.1979.) The intent to defraud or harm another may be established by circumstantial evidence, and the burden is on the prosecution to prove each and every element of the offense charged. See Stuebgen v. State, 547 S.W.2d 29 (Tex.Cr.App.1977). In the case of forgery, the culpable mental state requires proof of knowledge that the instrument is forged. See Stuebgen, supra, at p. 32.

A majority of the Court of Appeals found that it was not possible for any rational trier of fact to have concluded beyond a reasonable doubt the appellant knew that the money order was forged, relying on the holding in Stuebgen, supra. The Court of Appeals additionally concluded that the trial court erred in denying appellant’s motion for mistrial when the prosecutor, during the guilt-innocence phase, made the following argument to the jury:

“Maybe I do or don’t know whether the defendant did any work for them, where are those people? Where are those people? Or the neighbors from her house where he was supposed to have done this work at. How about the person living next door to Janice Chaffe coming in here and saying, ‘Yeah, she existed. Maybe she had another name. She existed, she lives there, I saw him over there.’ Not one witness did the defendant bring to substantiate the lie that he told Faye Norwood when he passed this check. A provable false statement.”

The majority of that court cited Garrett v. State, 632 S.W.2d 350 (Tex.Cr.App.1982) and McKenzie v. State, 617 S.W.2d 211 (Tex.Cr.App.1981) for the proposition that the trial court committed reversible error by denying appellant’s motion for mistrial.

The facts are undisputed. On February 18, 1981, the appellant entered a Kroger store in Dallas and attempted to cash a money order. He presented to Faye Nor-wood, the cashier, a money order payable to “Donald Williams.” Ms. Norwood asked for appellant’s driver’s license. Appellant presented his driver’s license. Norwood asked appellant where he had gotten the money order. Appellant replied that he had done some work for a lady in Mesquite and that she had paid him with it. Nor-wood became suspicious when she noticed that the money order was not embossed. Norwood presented the money order to the store manager, who in turn called the police. Appellant was arrested in the Kroger store. The money order listed a Janice Chaffe as the maker, with a purported address of 50005 Columbia, Apt. 12. The money order was dated February 14, 1981.

A supervisor for the Southland Corporation testified from his records that the number on the money order showed that it had been assigned to a store located on Military Parkway in Mesquite. Testimony elicited from the supervisor further showed that the particular money order passed by appellant was missing from the store on February 14, 1981; it was not present in the store, but had never been sold nor recorded as sold and engraved at the store. The supervisor further testified that all money orders sold through 7-11 Stores were engraved with the store name and number, and that the money order in the instant case contained neither. He also testified that he knew no one by the name of Janice Chaffe, that she was not an employee of the Southland Corporation, and that no one by that name was authorized to pass the money order on February 18, 1981.

An investigator with the Dallas police department testified he could find no person by the name of Janice Chaffe in the Dallas metroplex area and could find no address of 50005 Columbia within the confines of Dallas County, including Mesquite. He testified that he did find an address of 5005 Columbia in Dallas County, but that it was a tire store.

Relying primarily on Stuebgen, supra, the Court of Appeals found the evidence to support the conviction to be insufficient and stated:

“In this case it cannot be inferred from appellant’s explanation that he knew that Janice Chaffe was a non-existent person. Neither does the evidence show that appellant, rather than the ‘lady in Mesquite’ signed the name of Janice Chaffe on the money order.
“Had the appellant stated that Janice Chaffe had given him the money order and that Janice Chaffe was someone that he knew, the evidence would have been sufficient to sustain the conviction for forgery [citations omitted.] However, appellant’s statement that he ‘had received the check as payment for work he had done in Mesquite’ does not show beyond a reasonable doubt that he knew that the person listed as the sender on the money order was in fact a fictitious person [citations omitted.] To find him guilty the jury would have to speculate that appellant was referring to the person named on the money order as the person who had given the instrument for payment for work. We conclude that it is not possible for any rational trier of fact to have found beyond a reasonable doubt that the appellant knew that the money order was forged.” Williams, supra, at 631.

Dissenting to the majority opinion, Justice Sparling distinguishes Stuebgen, supra, from the facts in the instant case and opines that the instant case is controlled by this Court’s holdings in Colburn v. State, 501 S.W.2d 680 (Tex.Cr.App.1973) and Golden v. State, 475 S.W.2d 273 (Tex.Cr.App.1972). We find the reasoning of Justice Sparling to be sound.

The facts in Colburn, supra, are almost a mirror image of the facts in the instant case. In Colburn, the defendant presented Barbara Lockwood, manager of the United Dollar Store in Gladewater, a check which he used to pay for merchandise he received. The check, payable to the order of R.P. Colburn in the amount of $55.70 was purportedly made and signed by one Howard W. Hopkins. Barbara Lockwood testified she saw the defendant endorse and place his address on the check and saw the cashier place on the check the number of the defendant’s license to operate a motor vehicle. The defendant said he had received the check for hauling pulpwood and gave specific assurance that it was a good check. Barbara Lockwood further testified that the check was returned from the First National Bank of Gilmer, marked “No Account.” She testified she made efforts to locate a Howard W. Hopkins but was unable to find such a person. A special investigator for the District Attorney’s office testified that he had tried to find a person by the name of Howard W. Hopkins by making a “survey” of the gas company, water company, telephone company, and the bank on which the check was written. He also testified that he had checked with law enforcement authorities in Gregg and Upshur Counties and made investigations in all of the banks in Upshur County to determine whether there was a person by the name of Howard W. Hopkins. Although he located people by the name of Hopkins he was unable to find anyone by the name of Howard W. Hopkins. This Court found that there was sufficient circumstantial evidence for the trial court to find the check was forged; that the defendant knew that it was forged, and that he presented it to Barbara Lockwood with the intent to defraud. (See also Golden, supra, where the evidence was found sufficient to prove knowledge the instrument was forged where the defendant stated that the maker of the check was an insurance man and the evidence showed that no such person existed.)

In Stuebgen, supra, the facts are clearly distinguishable from the instant case. In Stuebgen the defendant passed a check payable to himself and purportedly signed by his employer, Chitwood. Chitwood not only existed, but testified that he did not give the defendant permission to sign his name or use his personal check. Chitwood further testified, however, that he kept his checkbook in his pickup, and that three to five employees rode in his pickup daily during that period, including the defendant. This Court held that since the defendant made no statement from which it could be inferred that he knew the instrument was forged, the evidence was insufficient to discharge the State’s burden of showing that the defendant acted with the intent to defraud or harm another. This Court further found there was no evidence introduced to show that anything appearing on the check was in defendant’s handwriting.

In the instant case, one of the appellant’s own witnesses identified appellant’s signature on the back of the money order. Further, the appellant made an affirmative statement that he received the money order from a lady in Mesquite in exchange for work performed. This statement was controverted by the State’s evidence that the money order in question was stolen some four days prior to it being passed by the appellant at the Kroger store. Thus we find that the instant case is governed by the holdings in Colburn, supra, and Golden, supra, and that the intent to harm or defraud was proved circumstantially by the testimony of the State’s witnesses. See also Baker v. State, 552 S.W.2d 818 (Tex.Cr.App.1977); Phillips v. State, 488 S.W.2d 97 (Tex.Cr.App.1972); and Castañuela v. State, 435 S.W.2d 146 (Tex.Cr.App.1968). A rational trier of fact could have found appellant guilty of forgery beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The State’s first ground for review is sustained.

In its second ground for review the State contends that the Court of Appeals erred in finding that the trial court erred in denying appellant’s motion for mistrial when the prosecutor made the argument to the jury set out at page 488, ante. A majority of the Court of Appeals cited Garrett, supra, and McKenzie, supra, as authorities for the proposition that the trial court committed reversible error by denying the appellant’s motion for mistrial. In Garrett, supra, the prosecuting attorney, during his closing jury argument, argued to the jury:

“This is a man that if his friends and family could bring you an alibi defense they would have.”

The defendant had presented no evidence or testimony of any kind. This Court, in an opinion by Judge Teague, held:

“The above argument of the prosecuting attorney also constituted an indirect comment upon the appellant’s failure to produce testimony other than his own. It was outside the record because there was nothing whatsoever to reflect that the appellant had any witness who could have testified to the defense of alibi.” at pg. 351.

In McKenzie, supra, Judge Clinton, writing for the Court, responded to a similar jury argument by opining:

“Who the assistant district attorney thought appellant might call to testify and what each expected to say were, for the most part, simply personages and products of his own imagination ... The prosecutor may not relate his version of testimony to a witness not called might give.” [citation omitted.] at pg. 220.

The prosecutor’s argument in McKenzie and Garrett presume the existence of a witness, whose existence was not established by evidence. In the instant case it is the State’s theory that Janice Chaffe does not exist, ergo, Janice Chaffe’s neighbor does not exist. Thus, the prosecutor is not inventing a witness as was the prosecutor in McKenzie, supra, but rather commenting on the fact that witnesses favorable to the appellant were non-existent.

Counsel in argument may draw from the facts in evidence all inferences that are reasonable, fair, and legitimate. Carter v. State, 614 S.W.2d 821 (Tex.Cr.App.1981). The prosecutor’s comment was a reasonable deduction from the evidence presented by Faye Norwood, i.e., that the appellant told her that he had received the money order from a lady in Mesquite for work performed, and that the purported maker of the money order was Janice Chaffe. This evidence, coupled with the evidence that the money order was taken four days earlier from the 7-11 store, creates a reasonable inference that Janice Chaffe did not exist and therefore Janice Chaffe’s neighbors did not exist. McKenzie, supra, and Garrett, supra, are inappo-site to the facts in the instant case. The argument complained of was proper. The State’s second ground for review is sustained.

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

CLINTON, Judge,

dissenting.

I agree entirely with Judge Vance’s observation that “[h]ad the appellant stated that Janice Chaffe had given him the money order and that Janice Chaffe was someone that he knew, the evidence would have been sufficient to sustain the conviction for forgery. See Golden v. State, 475 S.W.2d 273, 274 (Tex.Cr.App.1971).” Williams v. State, 646 S.W.2d 630, 631 (Tex.App.—Dallas 1983). (Emphasis supplied.) This is so because the State’s evidence that “Janice Chaffe” does not exist would then have shown such an assertion to have been false, thus establishing a conscious deception on appellant’s part, which in turn constitutes circumstantial evidence that he knew the money order was forged. The statement appellant did make — that he had done some work for an unnamed lady in Mesquite and that she had paid him with the money order — is not necessarily proved to be a conscious deception by the State’s evidence that “Janice Chaffe” does not exist. Thus, appellant’s statement together with the proof of “Janice Chaffe’s” nonexistence fails to amount to circumstantial evidence that he knew he was passing a forgery.

The majority reasons that appellant’s statement was “controverted” by evidence that the money order he passed had been stolen from the 7-11 store four days previously. At p. 490. However, the evidence does not show who took the money order. That the money order was taken by some unidentified person does not rule out the possibility that it could have been given to appellant sometime during the previous four days by a lady in Mesquite in exchange for work he did for her. This lady could have held herself out to be “Janice Chaffe.” The State’s proof does not show that appellant should have known or did know that she was not.

The statement appellant made to the store clerk was “controverted” by neither the proof that the maker was fictitious nor by the fact that the money order was stolen four days earlier. No conscious deception is shown. The court of appeals was correct in refusing to affirm this conviction on the basis of Golden v. State, supra, and its judgment should be upheld.

The majority observes the facts of Colburn v. State, 501 S.W.2d 680 (Tex.Cr.App.1973) to be “almost a mirror image of the facts in the instant case.” At 489. However, the critical difference, as noted in the majority’s opinion, is that the defendant in Colburn, as he passed the instrument, “gave specific assurance that it was a good check.” Id. Judge Sparling, in his dissenting opinion in the court of appeals felt this difference “to be insignificant because reason dictates that any person who passes a forged document vouches, by implication, that the instrument is genuine.” Williams, supra, at 632. If Judge Sparling’s analysis is correct, then proof of a fictitious maker standing alone should be sufficient, as a matter of strict liability, to prove guilty knowledge. But as I have endeavored to make clear, the function that proof of a fictitious maker serves in the cases relied on by the majority is only to demonstrate that a particular statement the accused has made must necessarily be a conscious deception. It is from the deception that guilty knowledge may be inferred.

The specific assurance of the authenticity of the check in Colburn is significant in that an accused would presumably have no reason to make such an emphatic statement absent some motive to deceive. Contrary to Judge Sparling’s belief, it is the very express assurance of what would otherwise be implicitly understood that, in combination with the fact that the maker proved to be fictitious, constitutes circumstantial evidence from which guilty knowledge may be inferred.

In the instant case the State proved only that “Janice Chaffe” was fictitious. No statement or other circumstance was elicited which, in combination with this fact, will support the inference that appellant knew she was fictitious and therefore knew he was passing a forged instrument. Still extant is the reasonable alternative hypothesis that the money order was passed to appellant by a lady in Mesquite who stole it herself and then held herself out to appellant as “Janice Chaffe.” For this reason appellant’s conviction ought to be reversed and a judgment of acquittal entered, just as the court of appeals ordered. See Stuebgen v. State, 547 S.W.2d 29 (Tex.Cr.App.1977); Crittenden v. State, 671 S.W.2d 527 (Tex.Cr.App.1984).

Because the majority fails to affirm the judgment of the court of appeals, I dissent.

TEAGUE and MILLER, JJ„ join.


author: CLINTON, Judge.

text:
    Andrew Lee SAMUEL, Appellant, v. The STATE of Texas, Appellee.
    No. 1064-83.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 20, 1985.

      Bill Roberts, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Tom Street-er, David Lewis and Steve Miller, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was found guilty by a jury of the offense of forgery. Having also been found to be an habitual offender, appellant was assessed a life sentence. The Dallas Court of Appeals in an unpublished opinion reversed the conviction and remanded the case for a new trial.

The court of appeals ruled that evidence of appellant’s silence during a vigilante arrest was admitted in violation of State law, and found this error not to be harmless beyond a reasonable doubt. We granted the State’s petition for discretionary review in order to examine the State’s contention that the objections voiced by appellant at trial were not sufficient to preserve error on the basis of State law.

Late in the afternoon of December 29, 1981 appellant entered the Star Liquor Store at 905 San Jacinto, in downtown Dal-

las. Appellant “cut in front of” the half a dozen or so customers in the store to present a check to Erick Dickerson, the store owner, to be cashed. The check was made out to appellant, drawn against the account of one “Scottie Adams.” When asked if the check was his, and told it would have to be verified, appellant asserted, “it’s a good check.” On request he presented a temporary driver’s license as identification. Dickerson proceeded to call Scottie Adams, and was informed the check was unauthorized. Meanwhile appellant attempted to retrieve the check and license and, failing that, he abandoned them and left the store. Dickerson then cleared his store of customers and pursued appellant with a shotgun.

On direct examination Dickerson testified as to what happened next:

“Q: The next time I saw him was down on the railroad tracks when I caught him.
Q: All right. Now, by ‘caught him,’ would you tell us what happened in that respect.
A: Well, I ran down the railroad track and he was just about to turn the corner and I pointed the shotgun at him and I told him to stop.
Q: Well, what was his response when you pointed the shotgun at him?
A: He said, ‘Don’t shoot! It’s only a check.’
Q: It’s only a check?
A: Yeah.
Q: Okay. Didn’t say anything about, you know, why are you doing this, what’s going on, anything like that?
A: Well, when I took him back to the front of the store, he asked me, he said, ‘Well, why you doing this to me?’ And I said, ‘Well, you tried to pass a cheek on me.’
Q: At anytime — did you then hold him for the police there?
A: Yeah, I held him for about twenty minutes until the police arrived.
Q: All right. During the time that you waited for the police, were you continuously guarding him with your — armed and guarding him?
A: Yes, I did.
Q: During that twenty minute time, did he ever protest any innocence or lack of knowledge as to the check?
[APPELLANT’S ATTORNEY]:
Judge, I’m going to object to the leading question.
THE COURT: Overruled.
[APPELLANT’S ATTORNEY]: I’ll object to statements made after he was under arrest.
THE COURT: Overruled. [PROSECUTOR]:
Q: You aren’t any kind of law enforcement officer, are you?
A: Pardon?
Q: You aren’t any kind of law enforcement officer, are you, Mr. Dickerson?
A: No, I’m not.
Q: Again I’ll ask you, did the defendant, Andrew Lee Samuel, protest or make any claim of innocence regarding passing you that cheek?
A: No, he didn’t.
Q: To the best of your memory, what statements did he make?
A: I remember asking him, I said, ‘Well, who passed that check on me yesterday?’ And he said, T don’t know what you’re talking about.’
Q: I don’t know what you’re talking about? What was his response to — did he tell you where he got this check?
A: No, he didn’t.
Q: Okay. Didn’t tell you how he came by it, by working or anything like that?
A: No, he didn’t.
Q: Simply his first statement was, ‘It’s only a check?’
A: Uh-huh.”

In the course of arguing to the jury on the element of appellant’s intent to defraud or harm another, the prosecutor alluded to the foregoing testimony as follows:

“But we know that Erick Dickerson chases him down and holds him for the police. What is the defendant’s statement when he’s caught? ‘It’s only a check.’ His words. Not my words, not Erick Dickerson’s, Andrew Lee Samuel’s words, ‘It’s only a check.’ And Erick Dickerson told you for the twenty minutes he held this defendant until the police arrived that this defendant did not utter one syllable protesting his innocence. What he did was acting like a guilty man caught out there. That shows you his intent, no question about it. In fact, his silence there at that scene is one of the most damaging bits of evidence you have before you. But don’t you know that if he hadn’t done it, he would have told Erick Dickerson that, you know, hey, I didn’t do it.
[APPELLANT’S ATTORNEY]: Excuse me, your Honor. I’d like to object to his comment on the defendant’s right to remain silent and his comment on his failure to make a statement at the scene, and it is a comment on his failure to remain silent.
THE COURT: Overruled.
[PROSECUTOR]: So there will be no question about what I said, I said his silence at the scene is his biggest indictment of all as to his guilt because don’t you know that an innocent man would have been screaming his head off about, you know: why are you doing this to me? I didn’t do anything. I earned that check. I worked hard for this.”

The court of appeals reversed the conviction on the ground that the trial court erroneously allowed the State to introduce evidence of appellant’s post arrest silence. Citing Hill v. State, 643 S.W.2d 417 (Tex.App.—Houston [14th] 1982), the court of appeals first held that appellant’s detention by shotgun point prior to the arrival of police officers constituted an arrest in that appellant had “been actually placed under restraint ... by [a] ... person arresting without a warrant.” Article 15.22, V.A.C. C.P. See Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973). The court then held that as a matter of State law, evidence of appellant’s silence while so restrained was inadmissible as evidence of his guilt. The court concluded that the trial court’s error in admitting this evidence and allowing the prosecutor to argue it was not harmless beyond a reasonable doubt.

The State now contends that the appellant’s objection at trial was not sufficiently specific to preserve error as a matter of State law; that nothing but Federal constitutional grounds can be considered, and that as a matter of Federal constitutional law, post arrest but pre Miranda silence may be considered, not only for purposes of impeachment, see Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), but also for purposes of establishing guilt. For the proposition that a State law issue was not preserved, the State relies on the very case cited by the court of appeals in the first step of its analysis, see ante, viz: Hill v. State, supra.

The Hill case is inapposite to the State’s contention. In Hill, the defendant filed two motions to suppress evidence obtained as a result of his warrantless vigilante arrest. One of the motions expressly relied on the exclusionary rule of the Fourth Amendment, which ground was reiterated in the defendant’s trial objection. The other was characterized by the court of appeals as a “general catchall motion,” specifying no particular legal ground. The court of appeals overruled the defendant’s complaint on appeal, finding the Federal exclusionary rule inapplicable to vigilante arrests, which do not constitute a governmental action. The court further noted that, though Art. 38.23, Y.A.C.C.P. would apply to an illegal vigilante arrest, neither of the defendant’s motions invoked this provision as a ground for exclusion. Therefore error was not preserved for appellate rule on this basis, see Nelson v. State, 607 S.W.2d 554 (Tex.Cr.App.1980).

Initially we note that this Court expressly overturned this finding of the court of appeals on defendant Hill’s petition for discretionary review, handed down by the Court one full year prior to the filing of the State’s petition for discretionary review in the instant cause. Hill v. State, 641 S.W.2d 543 (Tex.Cr.App.1982). There we reiterated the observation in Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977) that:

“A number of exceptions to the general rule that a party cannot complain on appeal to the overruling of a general objection or an imprecise specific objection have been created... Thus, where the correct gro'und of exclusion was obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection." [Emphasis in original.]

We held that the motion the court of appeals considered a “catchall,” while it “may have left something to be desired from the standpoint of clarity,” 641 S.W.2d at 544, was nevertheless sufficient to apprise the court of the nature and basis of the defendant’s objection.

The appellant’s objection to Dickerson’s testimony may have been terse and almost in the nature of an afterthought. Following his objection on the basis of a leading question, appellant’s counsel simply stated, “I’ll object to statements made after [appellant] was under arrest.” Under similar facts we have observed that:

“[t]he proper objection ... would be that at the time the question was asked, that the appellant was under arrest and that such a question is in violation of the appellant’s rights against self-incrimination and of the confession statute. Art. 38.21, Art. 38.22, V.A.C.C.P.”

Hicks v. State, 493 S.W.2d 833, 837 (Tex.Cr.App.1973). Still, while appellant’s objection did not rise to the model of precision set out in Hicks, we think that, coming as it did immediately on the heels of the prosecutor’s question which attempted to elicit testimony as to appellant’s failure to protest his innocence, it was sufficient to inform the judge of the import of his corn-plaint. Zillender v. State, supra,

Because we find appellant’s objection was sufficient to raise a question of State law, we do not reach the State’s contention that as a matter of Federal constitutional law post arrest but pre Miranda silence on the part of an accused may be admitted as evidence establishing his guilt, It seems clear to us that as a matter of State law such evidence is inadmissible; in fact, the State does not contend otherwise.

Nor does the State argue that, contrary to the conclusion of the court of appeals, the trial court’s error in admitting Dickerson’s testimony regarding appellant’s silence was harmless.

Therefore the judgment of the court of appeals is affirmed.

ONION, P.J., and CAMPBELL, J., concur in result.

W.C. DAVIS and McCORMICK, JJ., dissent.

      . Adams testified that the check was one of a group of checks which he had last seen in his truck on December 18, presumably of 1981. On that day he had seen appellant in the pool hall outside which his truck was parked. Adams testified the signature on the check was not his. A signature exemplar was submitted to the jury for its comparison with the signature on the check.

      . The State does not contest, nor do we here decide the propriety of the court of appeals’ holding on this initial point.

      . It occurs to the writer, however, that such an objection made during trial under State law in a State court presumptively invokes State law rather than Federal, so that it is the latter that must be specified.

      . The Court nevertheless concurred in the court of appeals’ judgment that admission of the complained of evidence was harmless beyond a reasonable doubt, and affirmed. Id.

      . An objection which, incidentally, appears to us to have been eminently sustainable.

      . In Hicks, supra, the objection which the trial court ruled upon was that the prosecutor’s question called for hearsay. The defendant’s counsel then inquired, ”[i]s the court going to permit this prosecutor to ask him about statements made under arrest?” A bench conference was immediately held off the record, after which the prosecutor withdrew his question.
      In the instant case the trial court expressly overruled appellant’s objection regarding appellant’s post arrest silence.

      . Since a very early day it has been held as a kind of corollary to our State confession statute that post arrest silence may not be admitted regardless of whether it occurred before or after the accused received the requisite warnings as to the effect of his speaking out.
      In Gardner v. State, 34 S.W. 945, 946 (1896) the Court, through Judge Hurt, stated:
      "To give silence the effect of an admission, the party charged with it must have been in a position to explain. If the party is under arrest, his silence cannot be used as sustaining the hypothesis of acquiescence thereto. See Whart.Cr.Ev. 680; U.S. v. Brown, 4 Cranch, C.C. 508, Fed.Cas. No. 14,660; Bob v. State, 32 Ala. 560; Noonan v. State, 1 Smedes & M. 562. We deem these authorities sufficient to support the rule that, if the party is under arrest, silence cannot be used to support the hypothesis of consent to statements made in his presence by others. From the bill of exceptions, we infer that the learned judge who tried this case admitted this evidence because appellant had been cautioned. Our Code of Criminal Procedure (article 750) provides that ‘the confession shall not be used if at the time it was made the defendant was in jail, or other place of confinement, nor while he is in custody of an officer, unless such confession be made in the voluntary statement of the accused, taken before an examining court in accordance with law, or be made voluntarily after having been first cautioned that it may be used against him,’ etc. As above stated, the learned trial judge admitted in evidence the silence of appellant upon the ground that the appellant had been cautioned. We are of opinion that the fact that

        appellant had been cautioned was an additional reason, to being under arrest, for excluding his silence as evidence. He had been warned that if he said anything it might be used against him. He obeyed the caution, and because he did obey his silence was admitted in evidence against him, and was used as a confession of the truth of the statements made by others. We are of opinion that, whether cautioned or not, being under arrest, his silence should not have been received in evidence against him." [Emphasis supplied.]
      See also Simmons v. State, 50 Tex.Cr.R. 527, 97 S.W. 1052 (1906). Thus, it appears that originally the issue before the Court was whether silence could be used when it occurred after the warning — a question which necessarily assumes that post arrest but prewarning silence is patently inadmissible.
      Though the confession statute has undergone numerous metamorphoses and recodifications since the Gardner case, the corollary has been carried forth into our current Article 38.22, V.A. C.C.P. See Taylor v. State, 118 Tex.Cr.R. 340, 42 S.W.2d 426 (1931), wherein the Court observed on motion for rehearing:
      "... acts of the accused, and even his silence while under arrest, might be in the nature of confessions, and hence same would be inadmissible, unless coming under some exception to the statutory rule laid down in what is now article 727, C.C.P. [1925]...
      ******
      ... We think it clearly a violation of the rights of the accused to compel him to admit that, after he was arrested and while under arrest and unwarned, he made no explanation of the presence on his premises of certain matters deemed incriminating, and whose presence was explained by him while on the witness stand.” [Emphasis supplied.]
      See also Sharp v. State, 217 S.W.2d 1017 (Tex.Cr.App.1949); Harrison v. State, 491 S.W.2d 920 (Tex.Cr.App.1973); Hicks v. State, supra.
      Whether or not an accused has been cautioned in accordance with Article 38.22, supra, once he has been arrested his right to silence inheres. It would make no sense to hold that, just because he has not been told of that right as required by statute and the Federal Constitution, his choice to remain silent, especially in the face of accusation, may be used against him as proof of his guilt in the first instance, Fletcher v. Wier, supra, notwithstanding.


author: CAMPBELL, Judge. CLINTON, Judge, TEAGUE, Judge,

text:
    Richard Lee HARRISON aka Richard Lee Vaughn, Appellant, v. The STATE of Texas, Appellee.
    No. 110-84.
    Court of Criminal Appeals of Texas.
    Feb. 20, 1985.

      David R. Sivertsen, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty. and Eleanor Montague McCarthy, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty. and Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was charged by indictment with having committed three aggravated robberies. Appellant, a juvenile at the time of the alleged offenses, was properly certified as an adult. After some plea negotiations, appellant pled guilty to count three of the indictment; the State, in turn, dismissed counts one and two and made no recommendation as to punishment. The trial court assessed punishment at ten years and one day confinement in the Texas Department of Corrections. The Court of Appeals held that the trial court had failed to properly admonish appellant insofar as appellant’s eligibility for probation was concerned. See Art. 42.12, sec. 3f(a)(l)(D), V.A.C.C.P. Harrison v. State, 663 S.W.2d 120, (Tex.App.Houston 1st 1983). The State’s (Harris County District Attorney) Petition for Discretionary Review was granted to determine the propriety of the Court of Appeal’s holding. We reverse the Court of Appeals and affirm the trial court.

The trial court at the time of the guilty plea inquired into the existence of a plea bargain and admonished appellant in accordance with Art. 26.13., V.A.C.C.P. While we agree that the trial court erred in admonishing the appellant as regards probation, we find that appellant has failed to show he was misled to his detriment as required by Art. 26.13(c), supra. Error, if any, was harmless.

Although no motion for probation had been filed by appellant , the trial court proceeded to admonish on probation as follows:

“THE COURT: All right, now, I advise you that if I accept your plea of guilty, I will honor your request and the request of your counsel and the counsel for the State and order a pre-sentence investigation be conducted in the matter before the punishment will be assessed or any sentencing be imposed.
“If that procedure is followed you understand it will rest solely in the discretion of the judge as to what your punishment will be. It can be anything allowed by law.
“THE DEFENDANT: Yes, sir.
(THE COURT): You may or may not be accorded probation. That would rest solely in the discretion of the court.
“THE DEFENDANT: Yes, sir.
“THE COURT: You understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Being advised now as to the results of your plea of guilty do you still desire the Court to accept your plea of guilty?
“THE DEFENDANT: Yes, sir.”

The trial court then accepted appellant’s plea; a properly executed stipulation of evidence was entered into the minutes of the court and the court entered a finding of guilt. Sentencing was delayed pending a pre-sentence investigation (PSI) report.

At sentencing on November 5, 1982, the trial court noted he had reviewed the PSI and asked the appellant and the State if either had any corrections or additions to make to the report; both parties stood mute. No arguments were made and the court sentenced appellant to ten years and a day. No motion for new trial was filed and this appeal followed. Finally, we note that other than the court’s statement ante, the only mention of probation, prior to the contention on appeal, appears in the PSI where a hearsay statement by appellant indicates what he would do if granted probation. The PSI was not offered into evidence, although it appears in the record.

Firstly, we reject the State’s analysis that the trial court did not improperly admonish appellant as to probation since at the time of the admonishment no finding of guilt had been entered and the court could have granted deferred adjudication. See Art. 42.12, 3d(a) V.A.C.C.P. Such an argument requires pure speculation, for the record is devoid of any reference, any indication that any party, much less the trial court, was considering deferred adjudication.

Secondly, the State argues, along the same vein, that the trial court could have found appellant guilty of the lesser included offense of robbery, in which case appellant would have been eligible for probation. This argument also calls for pure speculation for which there is no support in the record. In fact, the clear inference of the trial court’s comments is that he was admonishing appellant on the consequences of accepting his plea of guilty to aggravated robbery.

As a general proposition, of course, a trial court has no duty to admonish as to the availability of probation. Shields v. State, 608 S.W.2d 924 (Tex.Cr.App.1980); Wilson v. State, 436 S.W.2d 542 (Tex.Cr.App.1969).

However, this Court has previously found error where a trial court improperly admonishes as to probation when a defendant is ineligible and it is apparent from the record that the defendant is seeking probation. See Jones v. State, 596 S.W.2d 910 (Tex.Cr.App.1980); Lewis v. State, 630 S.W.2d 809 (Tex.Cr.App.1982); West v. State, 661 S.W.2d 305 (Tex.Cr.App.1983).

The Court of Appeals relied upon Ramirez v. State, 655 S.W.2d 319 (Tex.App.—Corpus Christi 1983, no P.D.R.) which held that it was error to advise a defendant that probation was discretionary when in fact the offense for which he was pleading guilty was statutorily excluded and probation could not be granted.

The reliance of the court of appeals on Ramirez, supra, is misplaced. While the holding in Ramirez may be correct, insofar as it is error to advise a defendant that he may receive probation when he is statutorily ineligible, the Ramirez court noted that such is error only when it is apparent that a defendant is affirmatively seeking probation and, as in Ramirez, the record is clear that the defendant is pleading guilty in anticipation that he may receive probation. The record in this case does not support a finding that appellant was affirmatively seeking probation and Ramirez is therefore inapplicable.

We believe this holding to be consistent with Art. 26.13(c), supra, which provides that “substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”

This is also consistent with this Court’s prior holding that an admonishment, even though incomplete, is a prima facie showing of a knowing, voluntary plea of guilty and that the burden then shifts to the defendant to show that he entered the plea without understanding the consequences of his action and thus was harmed. Ex parte McAtee, 599 S.W.2d 335 (Tex.Cr.App.1980, en banc.)

We find that the appellant utterly failed to show any reliance on the trial court’s misstatement of the availability of probation. As noted ante, the only reference to probation, other than the court’s admonishment, occurs in a hearsay statement in the PSI which was not offered into evidence. Thus, there is no support in the record for appellant’s assertion in his brief that he was expecting probation or was misled by the court’s erroneous admonishment. See Beck v. State, 573 S.W.2d 786 (Tex.Cr.App.1978, reh. en banc, denied 1978.)

No motion for probation was filed prior to trial that would have put the court on notice that appellant believed he was eligible for probation. Finally, no protest was made by the appellant, either at sentencing or by the filing of a motion for new trial alleging an involuntary plea. In the state of this record we cannot find that the appellant has met his burden in showing he was harmed or misled by the incorrect admonishment of the trial court.

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

CLINTON, Judge,

concurring.

It seems to me that what the trial court and parties did in this cause hews so closely to contemplations of the Adult Probation, Parole and Mandatory Supervision Law, Article 42.12 Y.A.C.C.P. and other procedural statutes, that criticisms leveled at one or the other are wide the mark.

At the outset, however, it should be noted that the court of appeals seems to have construed the ground of error to be “that the trial court erred in telling him, after he had been adjudged guilty, that probation of his sentence was a matter for the court’s discretion.” Harrison v. State, 663 S.W.2d 120, 121 Tex.App.—Houston (1st) 1983. If that were the case, chances are it would not be in this Court.

Pursuant to Article 26.13, V.A.C.C.P., that “[pjrior to accepting a plea of guilty ... the court shall admonish the defendant” of the matters therein prescribed, the trial judge did just that, albeit not in the precise order of the statute. The judge inquired of appellant if he were prepared to enter a plea to the charge of aggravated robbery as contained in the third count of the indictment; appellant responded affirmatively, and when asked how he pleaded, answered “guilty.” Consistent with ascertaining that the plea was “free and voluntary,” the judge engaged a colloquy with appellant that included the following:

“THE COURT: Have you been promised anything in order to cause you to enter a plea of guilty to such charge?
DEFENDANT: No, sir.
THE COURT: Anyone promised you that you would get an early parole or pardon or probation or anything else?
DEFENDANT: No, sir.”

The judge examined “the plea papers” and in line with Article 26.13(a)(2) had appellant confirm that the parties proposed to request the court to order a presentence investigation report; the judge learned from the prosecutor that there would not be an “agreed recommendation” as to punishment. The court then admonished appellant of the range of punishment attached to the offense to which he was pleading guilty, and during the course of explaining the consequences or lack of any bargain with respect to punishment cautioned appellant in words that have been perceived as presenting a problem, viz:

“You may or may not be accorded probation. That would rest solely in the discretion of the Court.”

That done, the judge asked, “Being advised now as to the results of your plea of guilty, do you still desire the Court to accept your plea of guilty?” Appellant replied, “Yes, sir.” The proceeding then continued as indicated in the opinion of the Court to a finding of guilt.

Thus, there being no plea bargain agreement with respect to punishment, as that matter stood during the admonitional part of the plea hearing, every proper punishment alternative was available to the trial court. The majority emphasizes, however, “no motion for probation had been filed by appellant.” But if trial is before the court on a guilty plea, the statute does not require an application for probation be filed as a requisite for a trial court to consider and grant probation. See §§ 3, 3c and 3d(a) and Special Commentary to Article 42.12; see also generally Flournoy v. State, 589 S.W.2d 705, 707 (Tex.Cr.App.1979). Only when a recommendation for probation is sought from a jury does the statute require “a written sworn motion made therefor by the defendant, filed before the trial begins,” § 3a.

Accordingly, there is no legal significance whatsoever to the fact that a written application for probation had not been filed. The situation was as the trial judge had stated to appellant: “[I]f I accept your plea of guilty, I will honor the request ... and order a pre-sentence investigation to be conducted ... before the punishment will be assessed or any sentence be imposed [and] [i]f that procedure is followed you understand it will rest solely in the discretion of the judge as to what your punishment will be. It can be anything allowed by law."

One proper punishment alternative then available to the trial judge was indeed deferred adjudication with “any reasonable terms and conditions of probation” under § 3d(a). That “the record is devoid of any reference, any indication that any party much less the trial court, was considering deferred adjudication” is beside the point. What we are dealing with here is a question of “substantial compliance by the court” with requisites of Article 26.13 within the meaning of § (c). That it was an alternative “allowed by law” at the time cannot be dismissed simply as “pure speculation.”

It is on the bases stated herein that I join the judgment of the Court.

ONION, P.J., and McCORMICK, J., join.

TEAGUE, Judge,

dissenting.

First off, let me expressly point out that because of the offense for which he was convicted, aggravated robbery, Richard Lee Harrison, aka Richard Lee Vaughn, appellant, was, as a matter of law, prohibited from being placed on “regular” adult probation by the trial judge.

Notwithstanding the pitiful condition of the record on appeal in this cause, the Houston (First) Court of Appeals ordered the conviction of Richard Lee Harrison, aka Richard Lee Vaughn, appellant, reversed after it found that appellant’s plea of guilty was involuntary. See Harrison v. State, 663 S.W.2d 120 (Tex.App.—Houston [1st] 1984). Before reversing appellant’s conviction, I believe that that court should have remanded the cause to the trial court for a hearing on whether appellant’s plea of guilty was voluntary. The record on appeal simply will not support the decision of the court of appeals. But now a majority of this Court compounds the error of omission that was committed by the court of appeals by reversing the decision of the court of appeals on a record that has not improved since it reached the court of appeals.

Because I am unable to agree with the majority that the record on appeal sufficiently reflects that appellant was not misled to his detriment by the trial judge’s statements, namely: “You may or may not be accorded probation. That would rest solely in the discretion of the court.”, I am compelled to dissent.

Although I am not in agreement with the majority opinion, because of the condition of the record on appeal, I am also not in agreement with the opinion of the court of appeals for that very same reason. In the interest of judicial economy, I vote to remand this cause to the trial court for a hearing on the issues, whether appellant’s plea of guilty was knowingly, intelligently, and voluntarily entered, and whether he entered his plea of guilty on the erroneous premise that he might be considered by the trial judge as a candidate for “regular” adult probation.

Because the majority refuses to order a hearing to be held in the trial court, I must respectfully dissent.

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

      . We note in passing that a cautious trial judge would be wise to admonish a defendant who is not eligible for probation of that fact; however, absent a showing of harm, such failure is not reversible error. McNew v. State, 608 S.W.2d 166 (Tex.Cr.App.1980).

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

      . "Like old Article 781d, there is no requirement for a written motion for probation when the trial is before the judge alone; though it is generally the better practice to require one.” Under Article 27.02, V.A.C.C.P., listed among a defendant’s pleadings is "(6) An application for probation, if any." However, neither that listing nor any other provision of the code purports to condition exercise of judicial authority to grant probation upon an application being on file.

      . Article 37.07, § 3(d) had been amended effective September 1, 1981, to authorize a trial judge similarly situated to "order an investigative report as contemplated by Section 4 of Article 42.12 of this code” and "after considering the report" and hearing evidence, to assess punishment.

      .Of course, once the trial court proceeded to adjudicate guilt of appellant neither deferred adjudication nor probation was a viable alternate punishment, but that development would not retroactively undo "substantial compliance" with admonishment requirements of Article 26.-13.


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

text:
    Ronald Kent FRANKS, Appellant, v. The STATE of Texas, Appellee.
    No. 879-83.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 27, 1985.
    Larry D. Dowell, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr. and Jesse Rodriquez, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty. and Cathleen R. Riedel, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

A jury convicted appellant of burglary of a habitation, found that appellant had been previously convicted of a felony, and assessed punishment at fifty years’ confinement. The court of appeals affirmed the judgment. 661 S.W.2d 166. We granted appellant’s petition for discretionary review to address the court of appeals affirmance of the denial of appellant’s motion to quash the indictment, and to address the apparent conflict between our decision in Lane v. State, 621 S.W.2d 172 (Tex.Cr.App.1981) and those in Denison v. State, 651 S.W.2d 754 (Tex.Cr.App.1983) and Pinkerton v. State, 660 S.W.2d 58 (Tex.Cr.App.1983).

The indictment charged, in pertinent part, that “... in Harris County, Texas [appellant did] with intent to commit theft, enter a habitation owned by MISHIE MACK, ... without the effective consent of the Complainant, namely, without any consent of any kind.” Appellant’s motion to quash states that the indictment does not provide adequate notice from which he can prepare a defense because it fails to “allege what part of Harris County the habitation in question was located as required by Art. 21.09, V.A.C.C.P.” Art. 21.-09, V.A.C.C.P. provides:

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. If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be a sufficient description of the same.

This statute, by its terms, applies to descriptions of real property.

It was held in Lane, supra, that the failure to allege the general location of the real property within the county rendered the indictment insufficient in the face of a motion to quash. In Pinkerton, however, we held it sufficient to allege the county in which an offense is committed where it may be committed anywhere within the county, and further held that burglary is such an offense. In Denison, supra, a plurality opinion states the same conclusion without setting out the rationale.

At first glance, the cases do appear to conflict, but they are distinguishable. Lane was a prosecution for arson, in which the real property served not only as the situs of the offense, but as its object. The building itself was what the defendant was alleged to have sought to destroy.

In a burglary case, however, it is necessary that the situs of the offense be a building or residence, but the object of the offense is the felony or theft to be committed therein, and the building is necessary to the offense only qua situs.

We hold that Art. 21.09 applies to real estate alleged qua object of the offense, but not to real estate alleged only qua situs of the offense. To the extent any case holds to the contrary, it is overruled.

In light of the distinction drawn ante, we find no conflict in the cases cited. Appellant’s ground for review is overruled; the judgments of the trial court and the court of appeals are affirmed.

ONION, P.J., and CLINTON and MILLER, JJ., dissent.

TEAGUE, Judge,

dissenting.

In part, Art. 21.09, V.A.C.C.P., expressly provides that “If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be a sufficient description of the same.” I believe that to any intelligent person this statute is clearly written and its wording or meaning should not be subject to debate. Indeed, over 70 years ago, in Haworth v. State, 74 Tex.Cr.R. 488, 168 S.W. 859 (Tex.Cr.App.1914), this Court held that a motion to quash the indictment in that cause should have been sustained because the indictment, which attempted to allege the offense of entering upon land owned by the County of Commanche and removing therefrom earth and sand without lawful consent, failed to describe the alleged real estate by showing in what part of the county the property could be found. Also see Lane v. State, 621 S.W.2d 172 (Tex.Cr.App.1981).

Today, however, a majority of this Court not only rewrites the statute but redefines the legal term “real estate,” by stating, without any supporting lawful authority, or any meaningful legal discussion, that “Art. 21.09 applies to real estate alleged qua object of the offense, but not to real estate alleged only qua situs of the offense.”

When most, but, of course, not all, of us attended law school and studied the law of real estate or real property, we were taught that the term “real estate” is usually defined to mean the following: “Land and anything permanently affixed to the land, such as buildings, fences, and those things attached to the buildings, such as light fixtures, plumbing and heating fixtures, or other such items which would be personal property if not attached.” 1137 Black’s Law Dictionary (1979 Edition). Thus, that part of the statute, which states that “[i]f the property be real estate,” simply means that if the gist of the offense concerns some type of “real estate,” “its general locality in the county” should be stated in the indictment, and, if it is not stated therein, the indictment is subject to a motion to quash for failure to give the accused notice of the accusation.

I have spent several hours going through many legal works that discuss the law of real estate or real property, including legal works that go back to the Common Law, and have yet to find such phrases as “real estate qua object of the offense” or “real estate qua situs of the offense,” which the majority uses in its opinion. Nor does the majority cite any authority where one might find such phrases.

I do not believe that appellate court judges are entitled or empowered to disagree with what the Legislature has clearly mandated. But to write a legal opinion that does what only the Legislature is empowered to do is not acting judicially, but, in fact, is acting legislatively. In reaching what to many might appear to be an acceptable result, the majority usurps the function of the Legislature, and poaches upon territory that is Constitutionally reserved for another branch of our Government-the Legislature. This is not only impermissible, it is unlawful assumption of power that this Court does not have the right to assume.

Therefore, I respectfully dissent not only to the erroneous holding the majority makes in this cause, but to the wound that it inflicts upon the law of real estate or real property.

MILLER, Judge,

dissenting.

For the reasons given in the dissenting opinion in Santana v. State, 658 S.W.2d 612 (Tex.Cr.App.1983), I dissent to the majority opinion.

      . Unless, of course, the intended offense itself focuses upon the building, as in burglary with intent to commit arson.

      . Nor have I found such phrases described in any treatises on Criminal law.