author: THOMAS G. DAVIS, Judge. McCORMICK, Judge, McCORMICK, Judge. CLINTON, Judge,

text:
    William TISDALE, Appellant, v. The STATE of Texas, Appellee.
    No. 743-83.
    Court of Criminal Appeals of Texas, En Banc.
    June 6, 1984.
    On Rehearing March 13, 1985.
    Barry L. Elliott, Odessa, for appellant.
    William Michael Holmes, Dist. Atty. and David R. Rosado, Asst. Dist. Atty., Odessa, Robert Huttash, State’s Atty., and Cathleen Riedel, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

After finding the appellant guilty of the offense of aggravated robbery, the jury assessed punishment at fifteen years. The conviction was affirmed in an unpublished opinion by the El Paso Court of Appeals, Eighth Supreme Judicial District. We granted appellant’s petition for discretionary review in order to examine the Court of Appeals’ holding that the evidence was sufficient to show that the knife employed during the robbery was a deadly weapon.

The indictment alleged, in pertinent part, that appellant:

“While in the course of committing theft of property owned by Janet Presley, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, using and exhibiting a deadly weapon, namely a knife, did threaten and place Janet Presley in fear of imminent bodily injury and death.”

V.T.C.A. Penal Code, Sec. 1.07(a)(ll) provides:

“(11) ‘Deadly weapon’ means:
“(A) a fire arm or anything manifestly designed, made, or adopted for the purpose of inflicting death or serious bodily injury; or
“(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

A knife is not a deadly weapon, per se. Blain v. State, 647 S.W.2d 293 (Tex.Cr.App.1983); Better v. State, 635 S.W.2d 739 (Tex.Cr.App.1982).

The appellant, after carrying items to the cash register in a convenience store, paid for same, and upon the cashier opening the register, appellant placed his left hand over the cash tray. The clerk grabbed his hand and said “no.” Appellant replied “yes,” and “in his right hand he had a knife.” The clerk backed up, appellant removed the money from the register and departed the store. The employee testified “I felt threatened then” and in response to a question as to whether she was in fear of death or serious bodily injury she replied “Yeah, I figured he could have — as a matter of fact, I thought he would have.” The knife utilized was introduced into evidence and was shown to have a blade length of two and one-fourth inches.

The State can, without expert testimony, prove a particular knife to be a deadly weapon by showing its size, shape and sharpness, the manner of its use, or intended use and its capacity to produce death or serious bodily injury. Davidson v. State, 602 S.W.2d 272 (Tex.Cr.App.1980); Blain v. State, supra. In determining the deadliness of a weapon the jury may consider all of the facts of the case, including words spoken by the accused. Williams v. State, 575 S.W.2d 30 (Tex.Cr.App.1979).

In Davidson v. State, supra, relied on by the dissent for the proposition that “a knife may be shown to be a deadly weapon if its use or intended use during the commission of an offense renders it capable of causing death or serious bodily injury,” reversal resulted for failure to prove the knife was a deadly weapon under a factual situation much stronger than the one in the instant case. In Davidson, the defendant was observed taking articles from a store without paying for them. When confronted by employees, the defendant turned on one of the employees with an open knife in his hand and said “if you come any closer I am going to cut you.” The employee pulled a “cardboard box cutter” out of his pocket and the defendant fled. While the knife was not introduced into evidence, testimony by one employee showed the blade to be “two-and-a-half to three inches long and half an inch wide.” Two other employees testified the knife blade was “about four or five inches long” and “about three or four inches long.” The confronted employee testified “that he was placed in fear of imminent bodily injury or death.” In reversing this Court said, “Even though there was proof of the knife’s size, we find as in Alvarez [v. State] [566 S.W.2d 612 (Tex.Cr.App.1978) ] that the evidence in the present case is insufficient to show that the defendant used or intended to use the knife so as to inflict serious bodily harm or death.”

No threat of serious bodily injury, express or implied, was made by appellant. Appellant made no gesture with the knife which would indicate that he was about to use same. The evidence merely reflects that appellant had a knife in his right hand. Cf. Hubbard v. State, 579 S.W.2d 930 (Tex.Cr.App.1979); Hart v. State, 581 S.W.2d 675 (Tex.Cr.App.1979). To hold that the evidence is sufficient to show deadly weapon is tantamount to elevating a knife to the status of a deadly weapon, per se.

The evidence is insufficient to show that appellant used or exhibited a deadly weapon, thereby committing aggravated robbery as alleged in the indictment.

The judgments of the Court of Appeals and the trial court are reversed, and the case is remanded to the trial court with instruction to enter a judgment of acquittal of aggravated robbery.

It is so ordered.

McCORMICK, Judge,

dissenting.

Because the record before us does not support the conclusion of the majority, I must vigorously dissent.

The Court of Appeals, in an unpublished, yet well-reasoned opinion, concluded that the evidence was sufficient to show that the knife used by appellant was a deadly weapon. I set forth that opinion:

“This is an appeal from a conviction for aggravated robbery. The jury assessed punishment at fifteen years imprisonment. We affirm.
“The sole ground of error challenges the sufficiency of the evidence on the issue of whether or not the knife employed during the robbery was a deadly weapon. A knife is not a deadly weapon per se, but may be found to be a deadly weapon if its use or manner of intended use during the commission of an offense renders it capable of causing death or serious bodily injury. Davidson v. State, 602 S.W.2d 272 (Tex.Cr.App.1980); Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977). It is not necessary that wounds be actually inflicted, or express verbal threats be made in conjunction with the display or use of the weapon. Dominique v. State, 598 S.W.2d 285 (Tex.Cr.App.1980); Denham v. State, 574 S.W.2d 129 (Tex.Cr.App.1978). Its characterization as a deadly weapon may flow from its physical characteristics, the proximity of the parties, and the physical manner of its use. Nor is expert testimony necessary to support a jury’s conclusion as to the deadly capacity of such an instrument. Denham, supra; Cruz v. State, 576 S.W.2d 841 (Tex.Cr.App.1979); Lewis v. State, 628 S.W.2d 276 (Tex.App. — Amarillo, 1982).
“In this case, the Appellant entered a grocery store and carried several items to the cashier. When she opened the register to insert his money, he placed his left hand over the cash tray. The clerk grabbed his hand and said, ‘[n]o.’ He replied, ‘[y]es,’ and produced a lock-blade knife with his right hand. The clerk backed up, Appellant removed the money from the drawer and backed out of the store. The knife was recovered and introduced as State’s Exhibit A. A photograph appears in the record. An adjacent ruler indicates a blade length of two and one-fourth inches.
“Appellant was within reach of the complainant, thus within range of inflicting injury with the knife. The common experience and understanding of the lay juror is sufficient to assess the ability of a two and one-fourth inch blade to inflict death or serious bodily injury, as defined by Tex. Penal Code sec. 1.07(a)(34). This capacity was clearly utilized by Appellant in his non-verbal communication to the complainant that further efforts to forestall the robbery would result in actual use of the knife. Sufficient evidence was before the jury to justify its conclusion that the knife was a deadly weapon within this context. Tex. Penal Code Ann. secs. 1.07(a)(ll)(B) and 29.03 (Vernon 1974). Ground of Error No. One is overruled.
“The judgment is affirmed.”

In overruling the Court of Appeals, the majority concludes “[n]o threat of serious bodily injury, express or implied, was made by appellant. Appellant made no gesture with the knife which would indicate that he was about to use same. The evidence merely reflects that appellant had a knife in his right hand.” I ask, what was he going to do with the knife, clean his fingernails while cleaning out the cash register?

During the trial, the complaining witness testified:

“Q. (Prosecutor) Would it be implicit, do you feel like he would have to swing the knife around or come at you with it to feel threatened, or did you feel threatened when he held it up in front of you?
“A. I felt threatened then.
“Q. Threatened of fear of death or serious bodily injury?
“A. Yeah, I figured he could have — as a matter of fact, I thought he would have.”

The witness’ response clearly indicates that she felt threatened, that she figured the appellant could have caused her death or serious bodily injury, and that he would have done so had she not stepped back and allowed him to have the money.

The case at bar is obviously stronger than the one presented in Vaughn v. State, 634 S.W.2d 310 (Tex.Cr.App.1982). The facts of Vaughn, which were held sufficient to show that the knife used was a deadly weapon, show:

“... Although the sixty-seven year old complainant, Stanford Phifer, testified, ‘No, sir,’ when asked if the appellant placed him in fear of imminent bodily injury, he also testified that: ‘He [appellant] had his knife.’ ‘He was holding it like this [indicating].’ ‘He told me to give him my money.’ T guess he was going to cut me.’ In addition the evidence shows that the complainant felt threatened with bodily injury by the appellant’s actions holding the knife, that the appellant made him a little afraid that he might use the knife, that appellant displayed the knife in front of him and he thought appellant would hurt him with the knife if he didn’t give him the money.”

Common sense and human experience dictate that when a knife is used or exhibited in the manner exemplified by the instant facts, the victim is warranted in his conclusion that the actor fully intends to cause serious bodily injury or death to the victim if the actor’s requests are not complied with. Henceforth, potential victims are admonished that they should inquire of a robber who is exhibiting a knife whether the robber intends to cause the victim death or serious bodily injury if the robber’s requests are not honored.

To the unrealistic perception of the facts the majority has made, I vigorously dissent.

ONION, P.J., and W.C. DAVIS and CAMPBELL, JJ., join in this dissent.

OPINION ON STATE’S MOTION FOR REHEARING

McCORMICK, Judge.

We granted the State’s motion for rehearing to reconsider our previous holding that the evidence was insufficient to show that the knife employed by appellant during the robbery was a deadly weapon.

V.T.C.A., Penal Code, Section 29.03(a)(2), makes robbery under V.T.C.A., Penal Code, Section 29.02, aggravated if the defendant “uses or exhibits a deadly weapon.” Appellant, William Tisdale, was indicted by an Ector County grand jury for the aggravated robbery of Janet Presley, the indictment alleging that he “use[d] and exhibited] a deadly weapon, namely, a knife,

The evidence at trial reflected that, in the course of robbing Janet Presley, appellant exhibited a loekblade knife which appears in the record in a photograph, together with a ruler from which these measurements are drawn. The blade of the knife when fully opened and in a locked position has an overall length of two and five-eighths inches from the broken off tip end of the blade to the rounded off portion of the handle. The overall length of the open knife is seven inches. It is obvious from viewing the knife that the blade was originally longer in length but appears to have been broken off at the tip.

When Presley saw appellant’s knife, she “just threw up [her] hands and backed off and let [appellant] take the money.” Presley also testified:

“Q. * * * [W]ere you frightened when you saw the knife?
“A. Very much, yeah.
“Q. Did you feel threatened?
“A. Yes, I did.
“Q. Were you in fear of imminent bodily harm?
“A. Yeah.
“Q. Were you in fear of death? “A. Yeah.
“Q. That wouldn’t be hard to understand, would it?
“A. Well, nobody has ever pulled a knife on me before, it was pretty scary.
⅜ sjs ⅜ ⅜ ⅝ ⅝
“Q. Would it be implicit, do you feel like he would have to swing the knife around or come at you with it to feel threatened, or did you feel threatened when he held it up to front of you? “A. I felt threatened then.
“Q. Threatened of fear of death or serious bodily injury. ?
“A. Yeah, I figured he could have — as a matter of fact, I thought he would have.”

On original submission, a majority held:

“No threat of serious bodily injury, express or implied, was made by appellant. Appellant made no gesture with the knife which would indicate that he was about to use same. The evidence merely reflects that appellant had a knife in his right hand (Citations omitted). To hold that the evidence is sufficient to show deadly weapon is tantamount to elevating a knife to the status of a deadly weapon, per se.”

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), states that, in reviewing the sufficiency of the evidence to sustain a conviction, the reviewing court must ask and answer the question “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.” (Emphasis in original.) And it is plain from Part IV of the Jackson opinion that a trier of facts is entitled to draw reasonable inferences and conclusions from the direct and circumstantial evidence.

This Court has adopted the Jackson test. See, e.g., Houston v. State, 663 S.W.2d 455 (Tex.Cr.App.1984); 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); and Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983). Thus, the sole issue presented in the case at bar is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the knife exhibited by appellant was a “deadly weapon.”

The underlying thrust of the original opinion seems to be that, because a knife is not statutorily defined as a deadly weapon under V.T.C.A., Penal Code, Section 1.07(a)(ll), a holding that appellant’s knife was a deadly weapon would be “tantamount to elevating a knife to the status of a deadly weapon, per se.” It is one thing to hold that a knife is a deadly weapon per se, but it is quite another thing to say that, where one person uses or exhibits a knife during the course of a robbery in order to threaten or place another in fear of imminent bodily injury or death, a rational trier of fact could find beyond a reasonable doubt that the knife was a deadly weapon in the manner of its use or intended use.

V.T.C.A., Penal Code, Section 1.07(a)(ll)(B), provides:

“Deadly weapon means:
“(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

The evidence presented shows that appellant’s “use” of the knife was by showing it to his victim. This is established by direct evidence. Appellant had entered the grocery store and carried several items to the cashier. When Presley opened the cash register, appellant placed his left hand over the cash tray. Presley grabbed his hand and said, “No,” to which appellant replied, “Yes,” and produced the knife here in question. Presley backed up and appellant took the money from the cash tray.

Appellant was within reach of Presley and, as noted swpra, she was in fear of death and serious bodily injury and thought appellant would have caused same. In other words, the jury was fully warranted in concluding from Presley’s testimony that appellant intended to use the knife to cause her serious bodily injury or death. Contrary to the original opinion, appellant’s actions were perceived by Presley as an implied threat, and the finder of fact could properly find likewise.

The majority originally cited Davidson v. State, 602 S.W.2d 272 (Tex.Cr.App.1980), as authority for reversing appellant’s conviction. Davidson, however, when compared with the totality of the circumstances here presented, can be distinguished. In Davidson, the knife allegedly used to commit the offense was never found nor admitted into evidence. Further, Davidson was never closer to the alleged victim, John Coleman, than five or six feet. The evidence showed that Davidson was observed shoplifting and upon leaving the store was confronted by Coleman and two other store employees. Davidson turned on Coleman with an open knife in his hand and said, “If you come any closer, I’m going to cut you.”

Coleman pulled a box cutter from his pocket to defend himself if necessary but Davidson turned and ran. Coleman testified the knife blade was two and one-half to three inches long and that he was placed in fear of imminent bodily injury or death.

Unlike the present case, Davidson revolved around an apparent shoplifting, with the defendant displaying the knife only after being confronted outside the store. In the instant case, appellant entered the store, walked around until all other customers had left, and immediately produced his knife prior to committing the theft. Additionally, appellant actually came in physical contact with Presley and held the knife within arm’s reach of the victim’s face and torso, whereas in Davidson, the defendant was never closer to Coleman than five or six feet. Lastly, the knife used in the instant case was produced before the jury, whereas in Davidson, the weapon was never recovered.

The evidence found lacking in Davidson was the defendant’s intent to use the knife, which was apparently demonstrated by the fact he displayed the knife only after being confronted and then immediately fled the scene without ever advancing toward his alleged victim.

The actions of appellant in advancing on Presley and displaying the knife open in his hand are sufficient to show his intent to use the weapon and distinguish this case from Davidson.

We conclude that, under the facts presented in this record, a rational trier of fact could find beyond a reasonable doubt that the knife used by appellant was a deadly weapon.

The State’s motion for rehearing is granted and the judgments of the trial court and the Court of Appeals are affirmed.

THOMAS G. DAVIS, TEAGUE and MILLER, JJ., dissent.

CLINTON, Judge,

concurring.

Proper resolution of the thorny issue presented in the cause has pricked the judgment of past and present members of this Court for a considerable period of time. Though the precise question is whether in the circumstances evidence is sufficient to show that a knife held by appellant was a deadly weapon, the answer depends upon judicial construction of a part of the legislative definition of “deadly weapon” in V.T.C.A. Penal Code, § 1.07(a)(ll), viz:

“ ‘Deadly weapon’ means:
(A) * * *[]
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

With advent of the 1974 penal code, early on the Court focused on the “capability” feature of the definition of deadly weapon in determining sufficiency of evidence, often indicating that opinion evidence may be required to prove up that feature. See generally Denham v. State, 574 S.W.2d 129 (Tex.Cr.App.1978) But we came to understand that whether a knife is “capable” enough to constitute a deadly weapon depended more on what the evidence in a given case shows as to “the manner of its use or intended use.” See Blain v. State, 647 S.W.2d 293 (Tex.Cr.App.1983):

“A knife is not a deadly weapon per se. [Citation omitted.] The State can, without expert testimony, prove a particular knife to be a deadly weapon by showing its size, shape, sharpness, the manner of its use or intended use and its capacity to produce death or serious bodily injury. [Citations omitted.] In determining the deadliness of a weapon the jury may consider all of the facts of a case, including words spoken by the accused. [Citation omitted].”

With that construction of the definition in mind, we turn to the facts in the instant cause.

Janet Lynn Presley was working as cashier in a convenience store located by Andrews Highway in Ector County when at about two thirty of a late January morning appellant came in, walked around and talked a bit about the weather and, after another customer left, approached her counter with two small items; she rang them up for a total of exactly one dollar. Appellant produced a five dollar bill but saying “Wait a minute, reached into the other pocket and extracted a one dollar bill. Presley took the dollar bill, opened the cash register drawer and put the bill in the drawer. Routinely Presley started to close the drawer, but she could not because, as she then saw, appellant’s left hand was in it. She “grabbed his left hand” and said, “No.” Appellant said, “Yes,” and when Presley reacted by looking up she saw a knife in his right hand. She threw up her hands, backed off and “let him take the money.” Appellant made off with several twenty dollar bills.

As both opinions on original submission and the current opinion of the Court recount, Presley testified to being “frightened,” “feeling threatened,” being in “fear of death” and like subjective feelings. However, she also elaborated objective observations. Thus, “he is holding the knife and is looking at me, and he is getting the money out ... [and he] is still looking at me [a]nd he gets the money out ... [and] he backs all the way out of the door.” She noticed that “the tip of [the knife] was broken off,” just as the one portrayed in a photograph that became State’s Exhibit 4 was shown to be. There was blood on his right hand.

On cross-examination at his request, counsel for appellant and Presley demonstrated before the jury how appellant held the knife in relation to her position. She confirmed that the knife was not “moved, waved or anything like that,” but the blade was “sticking up ... or out a little bit. Mostly up, I guess, you know.” After counsel sympathized that she “can’t be perfect” and reassured her that he was “not asking for degrees,” Presley said the blade was “sticking up or maybe leaning over a little bit like that.” After more demonstrating, counsel remarked, “So, more or less, I believe what you are telling me is you are kind of facing one another, more or less front to front,” and Presley agreed.

On redirect Presley was asked whether when she first saw the knife in his hand appellant “was holding it up, what, in front of himself, as [counsel for appellant] brought out,” and she responded, “Not right in front of him,” but “[o]ff to the side a little bit.” In another demonstration that reveals nothing to us, the jury was shown “how far away” from her appellant was at the time, and iterated that she “felt threatened” when appellant “held it up in front of [her].”

The Court has discerned that the definition of “deadly weapon” in § 1.07(a)(ll)(B) “broadens [former] considerations to include ‘or its intended use.’ ” Denham v. State, 574 S.W.2d 129, 130 (Tex.Cr.App.1978). Coupled with all the facts, including words spoken by appellant, the evidence is sufficient to support a jury finding that from the manner of its intended use the knife held by appellant was capable of causing death or serious bodily injury.

It is not so much that a robbery victim testifies to having felt threatened, been in fear of death or serious bodily injury and like subjective conditions, for that goes more to elements of robbery than to definitional ingredients of “deadly weapon.” To determine in a given situation whether a knife is a deadly weapon a factfinder should consider its intended use from the attitude indicated by the perpetrator. When a suspect acts in a way that shows his purpose is to convey to his victim that he will thwart resistance to a taking by using the knife to harm the person of the victim, he intends for the victim “to believe that the knife [is] capable of producing serious bodily injury or death to obtain the money,” Cruz v. State, 576 S.W.2d 841, 843 (Tex.Cr.App.1979), and the factfinder is warranted in concluding that knife is capable of causing death or serious bodily injury. That the victim later recounts subjective emotions means little more than the suspect accomplished what he intended.

The evidence in this instant cause shows by word and deed that appellant made it abundantly clear to Presley that if she did not release her hold on his left hand in the cash drawer and cease her resistance to his taking the money, he would use the knife to harm her person. Even after she threw up her hands and backed off, he continued to hold the weapon “in front of her face” as he collected the bills and then backed away from the counter and out of the store. Thus the manner of use of this lockblade knife intended by appellant rendered it capable of causing death or serious bodily injury, and the evidence is sufficient to support an implied finding by the jury that it was a deadly weapon.

For those reasons I join the judgment of the Court.

      . Emphasis supplied.

      . This part of the definition is not implicated since by now it is axiomatic that a knife is not a deadly weapon per se; e.g., Davidson v. State, 602 S.W.2d 272, 273 (Tex.Cr.App.1980); Danzig v. State, 546 S.W.2d 299, 301, n. 2 (Tex.Cr.App.1977).

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

      . Indeed, in the instant cause the court of appeals believed that “common experience and understanding of the lay juror is sufficient to assess the ability of a two and one-fourth inch blade to inflict death or serious bodily injury

      .Illustrative of the analysis is Rodriguez v. State, 645 S.W.2d 273 (Tex.Cr.App.1982), where the Court examined sufficiency in four aggravated robbery convictions and concluded that while the same knife was not used or exhibited, "the testimony of each victim of or witness to the robberies justifies the inference obviously drawn by the jury from the facts before it that each was a deadly weapon.”

      . There are many of the inevitable “like this” and “right there” that do not serve to enlighten a reader of the record, but may have made sense to jurors. See our caution in this respect in Rodriguez v. State, supra, at 275, n. 5. Moreover, the volume of the statement of facts said by the index to contain State’s exhibits is a copy of the original, where the exhibits must be since they are not in Volume III of our record.

      . While we are unable to say from the record made of those demonstrations, we note that, testifying in his own behalf, appellant admitted taking the currency, but denied that he held the knife “in front of her face.” From that we surmise that jurors saw a demonstration reflecting that appellant had held the knife in front of her face.

      .However, if from actual observations made at the time of the offense, the victim should express an opinion as to the "capability” of the knife exhibited, it has probative value. See Rodriguez v. State, supra, at 276 (manager testified that knife was “big enough to cut me up"); see generally Denham v. State, supra, at 131.


source: Caselaw Access Project

author:
McCORMICK, Judge.
      CLINTON, Judge,

license: Public Domain

text:
    Darryl Elroy STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 68889.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1984.
    Rehearing Denied Feb. 6, 1985.

      Will Gray, on appeal only, Simonton, for appellant.
    John B. Holmes, Jr., Dist. Atty., and James C. Brough, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

Appellant was convicted of capital murder. Punishment was assessed at death. The sufficiency of the evidence is not challenged.

In grounds of error one through three, appellant complains of the exclusion of twelve prospective jurors for cause in violation of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In his fourth ground of error, he contends that error was committed when the trial court denied his challenge for cause to prospective juror Felts and he was forced to use a peremptory challenge.

Voir dire selection in this case commenced on June 12, 1980, some thirteen days prior to the United States Supreme Court’s decision in Adams v. Texas, supra. At the time of the Adams decision, the voir dire selection in this case was still in progress. Prior to the Adams decision, all of the jurors complained of in appellant’s first four grounds of error were excused by the trial court. On July 2, 1980, appellant’s trial counsel, aware of the Adams decision, apprised the trial court that some of the jurors who had been previously excused might have been excused erroneously and requested one additional peremptory strike to cure the error:

“MR. MUSSLEWHITE; If it please the Court, comes now the Defendant Darryl Stewart by and through his attorneys, respectfully request the Court for additional pre-emptory (sic) challenges. The next to the last juror, that was stricken by the Defendant, whose name is Earl Felts, it is our position that we have a right to rely on the jurors to follow the law and may be able to fit into our defensive theory. He was challenged in a situation where if the State challenged him, it is my humble opinion it would have been a good challenge, but because the defense challenged him on this ground, it was overruled and we were required to strike him. Further, with regards to some, as I have it, it may not be quite correct, but some nineteen challenges were made by the State for cause concerning perspective (sic) jurors.
“In view of the recent Supreme Court opinion, I believe it is Adams vs. Texas, to the best of my recollection there were two jurors back in there, and I apologize to the Court, I cannot give their names — I can start going back in here. But up through the first sixteen perspective (sic) jurors who were excused for cause, it is my recollection that at least two of them were put to answer the question based upon the Texas Code dealing with whether or not the fact that the death penalty was involved in this case, whether or not that would affect their deliberations on any fact issue, and with an affirmative answer, they were excused, which we submit, for the recent case, is improper.
“Further, with regard to some of these jurors, we feel that they were improperly excused, based upon the law of parties in some instances — I honestly can’t tell you how many. It is our belief that the Court improperly discussed the law of parties with reference to the answer to the first question in the punishment phase. Further, with reference to other jurors, perspective (sic) jurors, there were some who were excused because they could not answer the questions dealing in the punishment phase with respect to a party who was not the actual direct perpetrator of the offense.
“We further object to the systematic exclusion of all blacks from this jury. There were some, as I recall, that were struck by the — I will take that back. The State has used a couple of strikes on them. I don’t recall. But five of those that were struck for cause were black.
“For all of those reasons, Your Honor, we would respectfully request an additional pre-emptory (sic) challenge.
“THE COURT: Right. I think the record should reflect that the Adams vs. Texas case has been decided after we had already selected some jurors in this case. And without assigning it to any particular juror, I am going to grant your motion for that additional strike, in abundance of caution, in the matter.
“MR. MUSSLEWHITE: Thank you.
“MR. ARNOLD: Is that one additional strike, Your Honor?
“THE COURT: One additional strike.” (Emphasis added)

A constitutional error may be waived by the party affected. Rogers v. State, 640 S.W.2d 248 (Tex.Cr.App.1982) (on State’s Second Motion for Rehearing); Thompson v. State, 537 S.W.2d 732 (Tex.Cr.App.1976). This applies to jurors improperly removed in capital murder cases. Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1981) (on rehearing). Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976).

It is clear in the instant case with reference to those jurors who might have been improperly excused prior to July 2, 1980, and with reference to the denial of appellant’s challenge for cause to prospective juror Felts which also occurred prior to July 2, 1980, that appellant received all the relief which he requested. Since appellant received the one additional peremptory strike which he requested and made no further objection concerning the court’s action pertaining to these thirteen jurors, we hold that error, if any, was waived. DeRusse v. State, 579 S.W.2d 224 (Tex.Cr.App.1979); Duffy v. State, 567 S.W.2d 197, 205 (Tex.Cr.App.1978); Boulware v. State, supra. Grounds of error one through four are overruled.

In his fifth ground of error, appellant contends that Article 37.071, V.A.C. C.P., violates the Eighth and Fourteenth Amendments of the United States Constitution because it contains no provisions for directing and instructing the jury’s consideration of mitigating circumstances at the punishment phase of the trial. Appellant relies upon the United States Supreme Court decisions in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). All three of the cases relied upon by appellant concern situations in which the sentencers in a capital case were precluded from considering mitigating evidence in the punishment phase of each case. To meet constitutional muster, the sentencers in a capital case must be allowed to consider all relevant mitigating evidence. Lockett v. Ohio, supra; Green v. Georgia, supra; Eddings v. Oklahoma, supra; Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).

Article 37.071, supra, has previously passed constitutional muster in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and Quinones v. State, 592 S.W.2d 933, 947 (Tex.Cr.App.1980), where it was determined that Article 37.071 provides that “in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it.” Thus, “the Texas capital-sentencing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a death sentence.” Jurek v. Texas, 96 S.Ct. at 2957.

Appellant relies upon Spivey v. Zant, 661 F.2d 464 (5th Cir.1981), for the proposition that the jury in a capital case must be instructed in the court’s charge to consider mitigating circumstances in passing upon the question of the death penalty. Spivey v. Zant, at page 471. We would remind appellant that this Court is not bound by the decisions of any lower federal court. Flores v. State, 487 S.W.2d 122 (Tex.Cr.App.1972); Pruett v. State, 463 S.W.2d 191 (Tex.Cr.App.1971). Further, we held in Quinones v. State, supra, that no jury charge regarding evidence of any mitigating circumstances was necessary since the questions prescribed under Article 37.071 clearly allow the jury to grasp the logical relevance of mitigating evidence. Finally, our review of the record shows that appellant never requested the trial court to charge the jury on mitigation.

Appellant argues that, since by the time the punishment phase of the trial was reached the jury had already found that the defendant acted “intentionally or knowingly,” the jury was precluded from considering mitigating circumstances when it considered appellant’s “deliberateness” in answering Special Issue No. 1. Further, he argues that in a case such as the instant one, where there was evidence that the defendant was not the triggerman, but the jury was instructed on the law of parties at the guilt-innocence phase, the State’s burden of proof on the first punishment issue was materially reduced, and the jury was compelled to view the first punishment question as requiring a “yes” answer.

We would note initially that there was conflicting evidence as to whether appellant was the triggerman. Thus, it is very possible that the jury convicted appellant believing that he did kill the victim. Furthermore, we have held that “deliberately” and “intentionally or knowingly” are not linquistieally equivalent. Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981). We have also held that the word “deliberate[ly]” as used in Article 37.071 need not be defined in the court’s charge to the jury at the penalty stage of a capital murder trial. Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983); King v. State, 553 S.W.2d 105, 107 (Tex.Cr.App.1977). Rather, the term “deliberately” is to be taken and understood in its normal use in common language. Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980); King v. State, supra.

Appellant argues that we cannot be certain that the jury reached its decision without regard to the mitigating circumstances, and this should compel reversal. However, we cannot tell from the record that the jury did not consider the mitigating factors. Article 37.071(a) provides that during the punishment phase evidence may be presented as to any matter that the court deems relevant to sentencing. The jury was allowed to hear evidence of mitigation. The jury was given the freedom to construe “deliberately” as they understood it to be commonly used. Appellant has provided no evidence to show that the jury did construe “deliberately” as the equivalent of “intentionally or knowingly.” We decline to assume they did so.

Because the Texas statutes do not preclude consideration of mitigating circumstances and because appellant has not proven that the jury in the instant case did not consider the mitigating circumstances in answering the first special issue, we overrule his fifth ground of error.

In his sixth ground of error, appellant complains of the exclusion of testimony that would have shown that appellant’s co-defendant was the actual killer.

On direct examination, Detective William Owen testified that he and his partner Detective Jim Roberts investigated the crime scene. On cross-examination, Detective Owen testified that during the course of their investigation he personally did not question Michael Rainey, a neighborhood child, but that the child was questioned by Detective Roberts. Appellant now argues that Detective Owen should have been allowed to testify regarding information Detective Roberts obtained from Michael Rai-ney because that information would have shown that appellant’s co-defendant was the actual killer. Defense counsel asked the following:

“Q. Do you know whether or not you got information about it, the description being a heavy-chested man?
“MR. ARNOLD: I object to this. This is the very thing I object to as being hearsay.
“THE COURT: Sustained.
“THE COURT: Whatever information appears on that offense report that you got from someone else, was it from another officer or was it from a witness or what?
“THE WITNESS: Yes, I think the information he specifically is speaking of came from another officer.
“THE COURT: Another officer?
“THE WITNESS: Yes, sir.
“THE COURT: Your objection is sustained.”

In order for a complaint concerning the exclusion of evidence to be considered by an appellate court, the record must show what the excluded testimony would have been. Absent a showing of what such testimony would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review. Rumbaugh v. State, 629 S.W.2d 747 (Tex.Cr.App.1982); James v. State, 546 S.W.2d 306 (Tex.Cr.App.1977). The record before us contains no evidence of what the excluded testimony would have been, much less what it would have shown. We are unable to review the merits of appellant’s ground of error. Furthermore, other evidence was adduced at trial, specifically appellant’s own confession, which if believed would have shown that the co-defendant was the actual killer. This ground of error is overruled.

Appellant has filed a supplemental brief in which he alleges four additional grounds of error. In his first additional ground of error, appellant argues that his conviction and sentence of death are invalid under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In En-mund, the United States Supreme Court reversed the defendant’s conviction because it was never proven that Enmund killed the deceased, attemptéd to kill the deceased, intended that a killing take place or intend that lethal force be employed in the course of the crime. The Supreme Court wrote that in a case such as En-mund, where the defendant was clearly not the triggerman, the focus must be on the defendant’s culpability, not on the culpability of those who did the actual killing and robbery:

"... for we insist on ‘individualized consideration as a constitutional requirement in imposing the death sentence,’ Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1970) (footnote omitted), which means that we must focus on ‘relevant facts of the character and record of the individual offender.’ Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976).”

We are not faced with the Enmund situation in the instant case, however. The jury heard conflicting evidence as to who was the actual killer, the appellant or his co-defendant, Kelvin Kelly.

Viewing the evidence in the light most favorable to the verdict, the evidence shows that appellant and Kelly, who both lived in the same apartment complex as the victim, were walking through the complex when they passed the open door of the victim’s apartment. Appellant told Kelly that he wanted his (appellant’s) gun, a .25 automatic, because there might be something in the victim’s apartment he could steal. Appellant retrieved his gun and entered the victim’s apartment. Kelly meanwhile was standing outside of the victim’s apartment. Kelly heard the victim scream, “Oh, my God” and he rushed into the apartment to see what was happening. Kelly, standing in the living room, could hear appellant talking to the victim in one of the bedrooms. Appellant ordered the victim to undress. After she had complied, he ordered her to get into a closet. Kelly testified that at this point he tried to get the appellant to leave but appellant pointed the gun at Kelly and told him to look around the apartment for valuables. While Kelly was looking around, he heard the front door of the apartment slam. The victim’s three-year-old daughter had entered the apartment. Appellant put the little girl in the closet with her mother. Soon appellant made the victim come out of the closet and sit on the bed. When appellant demanded that the victim engage in sexual intercourse with him, she told him she could not since she was having her period. When he suggested that she engage in’ fellatio with him, she refused and began crying. Appellant became upset. He put his pistol to her head, covered it with a pillow and shot her twice, killing her.

The victim’s daughter testified that she only saw one person in the apartment at the time of her mother’s murder. Her description of the killer matched appellant. Because there is evidence which shows appellant was the triggerman, we hold that Enmund v. Florida does not apply to the instant case. This ground of error is overruled.

In his remaining grounds of error, appellant complains that the jury charge at the guilt-innocence phase of the trial was faulty because it allowed the jury to convict appellant without making a finding that appellant was the actual killer or merely a party to the offense.

The court charged the jury on the law of parties pursuant to V.T.C.A., Penal Code, Section 7.01(a), Section 7.02 and Section 15.02(a) and (b). The application paragraph of the charge reads as follows:

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 6th of February, 1980, in Harris County, Texas, the Defendant, Darryl Elroy Stewart, did while in the course of committing or attempting to commit burglary of a habitation, owned by William E. Melton, intentionally caused the death of Donna Kate Thomas by shooting her with a gun, then you will find the Defendant guilty of Capital Murder, as charged in the Indictment. Or if you find from the evidence beyond a reasonable doubt that on or about the 6th day of February, 1980, in Harris County, Texas, that Kelvin Kelly and Darryl Elroy Stewart entered into a conspiracy to burglarize the habitation of William E. Melton, and that pursuant thereto they did carry out or attempt to carry out such conspiracy to commit burglary, and while in the course of committing such burglary, if any, Kelvin Kelly did intentionally cause the death of Donna Kate Thomas by shooting her with a gun and that the Defendant, Darryl Elroy Stewart, pursuant to said conspiracy, if any, with the intent to promote, assist, or aid Kelvin Kelly in the commission or attempted commission of the said burglary, then and there, at the time of the shooting, if any, was acting with and aiding Kelvin Kelly in the execution or attempted execution of said burglary, and that the shooting of Donna Kate Thomas followed in the execution of the conspiracy and in furtherance of the unlawful purpose of Kelvin Kelly and Darryl Elroy Stewart to commit the burglary, and that the shooting of Donna Kate Thomas was an offense that should have been anticipated as a result of the carrying out of the conspiracy, then you will find the Defendant, Darryl Elroy Stewart, guilty of Capital Murder as charged in the indictment.
“If you do not believe or if you have a reasonable thereof, (sic) then you will find the Defendant not guilty.”

The appellant made the following objections to the charge:

“... Number two, we object to the Court’s charge as given to the jury for not requiring the jury to determine, if they find the Defendant guilty, whether he is guilty as a direct actor, that is, the individual who is directly responsible for the death of the deceased through his own immediate act, or whether they find him guilty as a party, as that term is defined in the Court’s charge.
“We want a charge that would require the jury to unanimously determine which of the two he is responsible, under which theory he would be responsible, and that that verdict be unanimous. Further, that the verdict sheet at the conclusion of the charge contains options whereby the jury may find him guilty either as a direct actor and perpetrator of the said offense of murder or guilty as a party.”

This was overruled.

Appellant now argues that under Enmund the State is required to obtain a jury finding that the defendant was himself the killer, or that he intended to kill or attempted to kill. However, Enmund does not require such a finding. Rather, En-mund requires some proof that the defendant either killed, attempted to kill, intended to kill or contemplated a killing before a sentence of death may be imposed.

Furthermore, Article 37.07, Section 1(a) provides that “[T]he verdict in every criminal action must be general.” Other than the provisions in Article 37.071, Y.A. C.C.P., Texas jurisprudence has no authority allowing the submission of special issues to a jury in a criminal case. The trial judge acted properly in denying appellant’s request.

Furthermore, Texas law does provide that an individual may be found guilty of an offense if he was a party to the offense. Sections 7.01, 7.02, supra. And under En-mund, an individual may be found guilty of capital murder and sentenced to death even if he was not the triggerman but contemplated the use of lethal force in the commission of the offense.

Since Enmund does not require the type of jury finding which appellant requested, we find the trial court properly overruled appellant’s objection to the charge at the guilt-innocence phase of the trial. These grounds of error are overruled.

The judgment is affirmed.

CLINTON, Judge,

dissenting.

Given the facial narrowness of Article 37.071(b)(2), V.A.C.C.P. it is certainly not specious to argue, as did appellant, that we cannot be certain that the jury reached its decision with due consideration to whatever mitigating circumstances appellant could proffer. Yet, Judge McCormick’s reply seems intentionally unresponsive: the appellant did not prove that the jury did not properly consider mitigating circumstances. In truth, no party has a “burden of proof” in this matter. The State of Texas, however, does have duties to ensure an accused those processes which are due under the law generally, and that the jury is given adequate guidance in its deliberations specifically.

Since 37.071(b)(2) was tentatively approved in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), this Court has brooked no argument that (b)(2) may, standing alone, be an inadequate guide when it comes to consideration of mitigating circumstances. Rather, as Judge McCormick sees it, the question of guidance was “settled” in Quinones v. State, 592 S.W.2d 933, 947 (Tex.Cr.App.1980), wherein Judge Dally opined:

“The jury can readily grasp the logical relevance of mitigating evidence to the issue of whether there is a probability of future criminal acts of violence.”

No doubt this is true; its significance, however, is unclear. For, in answering (b)(2), a jury would decidedly consider the range and severity of the defendant’s prior criminal conduct; yet truly “mitigating” evidence — such as a mental disease or defect, a deprived, abusive childhood or the youth of the defendant — while militating against a death sentence in general, surely has tremendous specific probative weight in favor of answering the future dangerousness question “yes.” Thus, any mitigating force such evidence might have in the minds of jurors in a particular case is emasculated by the narrow language of (b)(2), when unaided by an instruction as to the permissible use of that “mitigating” evidence.

A brief look at Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) will illuminate the point. There, the Supreme Court held that the senteneer is required to consider the following evidence which the court itself characterized as “mitigating:” that the 16 year old Eddings was a child of divorce and had lived without rules or supervision since he was five; that his mother was an alcoholic and a prostitute; that at the age of 14 he was sent to live with his father who attempted to control the disturbed adolescent with excessive physical punishment; that Ed-dings was emotionally scarred; and that his mental development was at a level several years below his age.

Depending on one’s perspective and focus, such evidence is at once damning and mitigating. It is this very paradox that renders asking the jury questions only in the language of 37.071(b) constitutionally insufficient. The truth is that many vicious criminals suffered at the hands of irresponsible and unfit parents; common knowledge holds that many violent criminals were physically abused children and that the American crime rate rises and falls in direct proportion to the number of our citizens who happen to be under 35. When we prosecute such a person and place in a jury’s hands the decision of whether that person is to live or die, is it enough to protest that we have allowed him to adduce mitigating evidence, yet take no measure to ensure the jury’s understanding of their role in regard to that evidence? I think not. At risk of redundancy, a history of deprivation and misfortune may, in some cases, moderate blameworthiness, even while the same history may establish the probability of a defendant committing future acts of violence. Or, similarly, the very mental or emotional disturbance which impairs a defendant’s ability to conform to the law might lead the jury to exercise mercy.

In sum, a defendant is entitled to jurors whose consideration of mitigating circumstances is not limited to whether that evidence does or does not indicate future dangerousness. The jury must not be precluded in law or in practice from according independent weight to factors that are mitigating but perhaps irrelevant to the probability issue of future dangerous conduct. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); and, Eddings, supra; cf. Woodson v. North Carolina, 428 U.S. 280, 286, 96 S.Ct. 2978, 2982, 49 L.Ed.2d 944 (1976). Rather than acknowledge the circumstantial inadequacy of 37.-071(b)(2) to accomplish the mandate of Lockett and its progeny, a majority of this Court has blithely said, time and again, that in considering whether to impose a death sentence the jury must be allowed to consider whatever evidence of mitigating circumstances the defense can bring before it. But they also have repeatedly denied the utility, much less necessity, of informing the jury that they may so consider that evidence.

If we are to ensure the constitutionality of 37.071, we must not only give lip service to broadly interpreting it; we must also apply it as interpreted. This could easily be effected by requiring a jury instruction on mitigating evidence.

It is folly for the Court to first acknowledge a capital murder defendant’s right to produce mitigating evidence, give the jury no guidance in its use, then presume these 12 laypersons know the holdings of Lockett and Eddings until the defendant affirmatively proves the contrary!

The defendant is entitled to jurors who will consider all mitigating circumstances. Rather than rely on speculation and assumptions, as does the Court today, defense counsel would be advised to rely on prospective jurors’ promises to give consideration — independent of the narrow special issues — to whatever mitigating circumstances the defendant may adduce for the purpose of deciding whether “mercy” is appropriate in the case. Counsel should take the responsibility upon themselves to inform the jurors of the holdings of Lock-ett and Eddings which constitute a part of “the law applicable to the case upon which the defense is entitled to reply ... as mitigation ... of the punishment,” and exercise challenges for cause to jurors who cannot follow them. Article 35.16(c)(2), V.A.C.C.P. If the Court is sincere in its intentions to comply with Lockett and its progeny, such a procedure should be welcomed with open arms.

Because a majority do not evince that intention today, I dissent.

TEAGUE and MILLER, JJ., join.

      . The state of the record in this case causes us to offer a comment concerning its organization. The record has come to us in eleven volumes. The transcription of the proceedings has not been arranged in chronological order and this makes it extremely difficult to review, further complicated by the fact that there is no central index. To illustrate, the voir dire begins in Volume II, page 2617. It continues through Volume XI, page 4204. It then continues in Volume I, page 231 and ends in Volume IV, page 1753. The actual trial on guilt and punishment is located in Volumes V and VI. If a record is not organized chronologically, the court reporter should at least furnish the appellate courts with a complete central index. We compliment both the attorney for appellant and the State for citing us to the proper portions of the record for without their assistance our task would have been even more difficult.

      . "Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” [Hereinafter 37.071(b).]

      . Appellant also argues the term "deliberately,” as employed in V.A.C.C.P., Article 37.071(b)(1), should be defined. I stand by my dissenting opinion in Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983).

      . "Mitigate” means “to cause to become less harsh or hostile: mollify ... to make less severe or painful: alleviate." Webster’s Seventh New Collegiate Dictionary (1969).
      In the context of deciding the penalty in a capital case in Texas, the effect of “mitigating"
      evidence is presumably a basis for bestowing mercy on the defendant.
      If not, and there is no room for mercy, perhaps the Supreme Court will have to acknowledge what it denied in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976): the Texas scheme sets up a mandatory death sentence much like those condemned as unconstitutional in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). See also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); and Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977).

      . Counsel should also, of course, request an instruction on mitigating circumstances.


author: CLINTON, Judge.

text:
    Roy Thomas SLEDGE, Appellant, v. The STATE of Texas, Appellee.
    No. 855-83.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 19, 1984.

      Bruce Anton, Dallas, for appellant.
    Henry Wade, Dist. Atty., Karen Chilton Beverly, Randall Isenburg and George West, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of aggravated robbery. His punishment was assessed by the jury at ten years confinement in the Department of Corrections. We granted appellant’s petition for discretionary review to consider the holding of the Dallas Court of Appeals, delivered July 29, 1983 in an unpublished opinion, that testimony from witnesses who were present when complainant identified appellant at the scene of the robbery was admissible to corroborate that complainant’s incourt identification testimony.

While sufficiency of the evidence is not contested here, we set out the facts in as much as they are relevant to our resolution of this issue.

The complainant, Pearl Rose Findley, was an 86 year old Dallas resident. She testified that on the morning of November 18, 1981 she was in her kitchen cooking breakfast for her son, Daniel Findley, who was in the back yard. As she was about to call her son in to breakfast she was grabbed by a man who was wearing a dark suit. Complainant recognized this man as having appeared at her door twice before, “posing for a insurance man.” Her assailant placed his left hand around complainant’s neck, and with his right hand he held a knife to her throat, threatening to cut her throat should she scream. The complainant screamed anyway. Her assailant then slung her to the floor, and, when asked what he wanted, demanded money. Complainant told him she had some money in the next room and proceeded to get it. From a back door that was ajar she called out to her son. Her assailant then fled. It was subsequently discovered that the front door had been broken into.

At trial complainant was called upon by the State to identify her assailant if he was in the courtroom. After stating that her vision was “20/20” and that she could see the whole courtroom from the witness stand, the complainant failed to identify anyone. Asked to leave the stand and survey the courtroom, she settled upon an individual sitting as a spectator in the courtroom. At this point the prosecutor directed her attention to appellant’s table. Complainant then picked out appellant and stated that she was “sure that’s him.” However, before resuming her chair on the witness stand, complainant pointed to someone in the courtroom, sitting on the second row, and stated that “that one yonder looks more like him. I believe that’s him right there.” At this point, again prompted by the State, complainant tentatively identified appellant.

Later in its case in chief the State called Barbara Riddle, complainant’s granddaughter in law. Riddle testified that she arrived at the complainant’s house shortly after the events related above, and that she called the police. Ten minutes later the police arrived and obtained a description from complainant of her assailant. The policemen left, but soon returned with appellant. Over objection that it constituted improper bolstering and inadmissible hearsay, Riddle was allowed to testify that complainant stated: “This is the man, but he’s changed clothes.” The State also called Dallas police officer E.W. Head, who confirmed Riddle’s testimony that complainant had identified appellant as her assailant when he was brought before her at the scene. Head testified that based on complainant’s description he went to appellant’s house. Appellant agreed to accompany Head back to the scene, where, on the sidewalk in front of complainant’s house, she identified him as her assailant.

Appellant contends that testimony of complainant’s granddaughter in law and that of the police officer constituted an unwarranted bolstering of identification testimony of complainant. Appellant relies on Lyons v. State, 388 S.W.2d 950 (Tex.Cr.App.1965), wherein it is stated:

“It is the rule that while a witness who has identified her assailant at the trial may testify that she also identified him while he was in custody of the police, others may not bolster her unimpeached testimony by corroborating the fact that she did identify him. See: Reddick v. State, 35 Tex.Cr.R. 463, 34 S.W. 274; Weaver v. State, 68 Tex.Cr.R. 214, 150 S.W. 785; Fortune v. State, 96 Tex.Cr.R. 569, 259 S.W. 573; Lucas v. State, 160 Tex.Cr.R. 443, 271 S.W.2d 821.”

388 S.W.2d at 950-951. The State in turn relies on Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982), and argues that inasmuch as an attempt was made at trial to impeach complainant’s identification of appellant, the third party testimony relating complainant’s at the scene identification became admissible.

The general rule is that third party testimony of an extrajudicial identification by a complainant is not admissible to support that complainant’s own identification testimony. Lyons v. State, supra. Such evidence would constitute corroboration where none is required, and would simply “bolster” the complainant’s identification of a defendant. “Bolstering” occurs when one item of evidence is improperly used by a party to add credence or weight to some earlier unimpeached piece of evidence offered by the same party. Pless v. State, 576 S.W.2d 83 (Tex.Cr.App.1979). Once identification testimony of that complainant is impeached, however, third party corroboration may become admissible as a method of rehabilitating the witness. Conceptually, corroboration following impeachment is not to be considered “bolstering.” Hence, third party testimony as to an extrajudicial identification will be admitted where it serves to rehabilitate a complainant’s identification testimony that has been subjected to impeachment. See Beasley v. State, 428 S.W.2d 317 (Tex.Cr.App.1968).

Current easelaw seems to indicate that an attempt to impeach any aspect of a complainant’s identification testimony will pave the way to introduction of the kind of third party testimony at issue in this case. See Roney, supra; Smith v. State, 520 S.W.2d 383 (Tex.Cr.App.1975); Franklin v. State, 606 S.W.2d 818, at 823-824 (Tex.Cr.App.1979) (reversed on other grounds on rehearing); Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971). Such an interpretation of the rule, however, is so broad as to threaten to lose sight of the rationale which engendered it. Before third party accounts of a complainant’s extrajudicial identification become admissible, it should be determined by a careful analysis of the facts of the particular case that such evidence will serve to rehabilitate the complainant on the specific point upon which he has been impeached or attacked.

We find support for this proposition in the earliest case cited in Lyons, supra. Reddick v. State, supra, was a rape case which the Court decided in 1896. Apparently in the guise of establishing “outcry” the State introduced testimony from the Sheriff that the victim had identified her assailant at a lineup shortly after commission of the offense. The Court observed that the State was entitled to show only the fact of “outcry,” but not the details or underlying circumstances, and that at any rate the lineup identification did not constitute “outcry” since the victim had already complained to her brother in law of the incident. The sheriff’s testimony was held inadmissible. In so holding, the Court observed:

“... If the defendant attempts to prove that [the victim] charged somebody else with the crime, or that she said that she did not know who was the guilty party, the state would have the right to show that, soon after the transaction, she charged the defendant with being the person. If the defendant attempts to prove that her testimony has been recently fabricated, as to defendant being the man, the state would have the right to show that she had stated, soon after the transaction, that the defendant was the man. If the defendant attempts to show that improper influences have been brought to bear upon the prosecutrix, or any other witness, to accuse the defendant of the crime, the state would have the right to prove that, before these influences were applied, she told the same tale as she swears to now upon the trial. Except as to the right to prove her complaint, the prosecutrix in a rape case stands precisely on the same ground, and no better, than a witness in any other case.”

In each of the scenarios hypothecated in Reddick, third party testimony of a complainant’s out of court identification would have a direct rehabilitative function. The same cannot be said of the instant case.

Unlike the complaining witness in Lyons, supra, the complainant in the instant case did not herself testify regarding her at the scene identification of appellant. On cross-examination she was asked a question relating to the description she gave to the policemen who arrived after the incident. The entire cross-examination consists of three pages from the statement of facts, and reads in relevant part:

“Q Miss Findley, do you remember me, Gay Cox, that came out to your house? Do you remember me when I came out to your house and talked to you that day?
A Yeah.
Q About the ease when I was investigating it, remember that? Do you remember me coming out to your house when I was—
A Yes, I remember.
Q Do you remember at that time you told me that when the police first came to your house and were getting a description of the person that had come in your house that you told the police that the person had on a blue suit? Do you remember telling me that?
A I said — I think I told you a dark suit.
Q Did you tell the police at one time that it was a blue suit?
A Well, I can’t understand what you’re talking about.
Q Did you ever tell the police when they were asking you about a description of the culprit that came in your house— did you ever tell them that he was wearing a blue suit?
A I told — I thought I told you it was a blue — a dark suit.
Q Did you ever tell the police, the police officers, that it was a blue suit and they told you it didn’t matter what color you said the suit was? Do you remember telling them that?
A I didn’t tell you that, I don’t—
Q Well, did you tell the police officers — forget what you told me. Maybe I got confused. But did you tell the police officers that the person had on a blue suit? Did you tell them that one time?
A No.
Q You never told the police officers anything—
A I said a dark—
Q —about—
A —suit.
Q —a blue suit?
A I said dark.
Q But you can’t positively identify that suit as the one — that’s one that looks like it; that’s similar to it, isn’t it, the suit, the one that they showed you? That’s a similar suit, isn’t it?
A (No response.)
Q Can you understand my question?
A Well, I don’t remember telling you nothing but a dark suit.”

From this colloquy the jury was in no position to know that any extrajudicial identification of appellant had taken place. Hence, testimony of Riddle and Officer Head was the first evidence of that identification.

Appellant’s cross-examination of complainant, ante, assumed a fact that was not in evidence, and which was never established, viz., that complainant told appellant’s counsel that she had told the police officers who first arrived at the scene that her assailant had worn a blue suit. Complainant steadfastly maintained she had always said the suit was “dark,” Assuming that appellant had successfully elicited a prior inconsistent statement, it would have been permissible for the State to put Officer Head on the stand to testify that complainant had actually informed him at the scene that her assailant had worn a “dark” suit. Prior consistent statements are admissible in criminal cases to counter the effect of prior inconsistent statements. See C. McCormick & R.Ray, Texas Law of Evidence Civil and Criminal § 774 (Texas Practice 3rd ed. 1980). Such testimony would adequately have served to rehabilitate complainant on the point upon which she was impeached. More than this simply corroborates the identification testimony without providing any tangible rehabilitative effect.

Because testimony of Riddle and Officer Head constituted rehabilitative “overkill,” we find that the trial court erred in admitting it over appellant’s timely objections on the grounds of bolstering.

We cannot conclude this error was harmless. The probative weight of complainant’s ineourt identification was questionable at best. There were neither other eyewitnesses to the offense nor any physical evidence connecting appellant to it. The prosecutor laid a heavy emphasis upon the out of court identification during his final argument at the guilt/innocence phase of trial. We find there was more than a reasonable possibility that testimony of Riddle and Officer Head contributed to appellant’s conviction. Collins v. State, 602 S.W.2d 537 (Tex.Cr.App.1980); Ward v. State, 657 S.W.2d 133 (Tex.Cr.App.1983); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977).

We therefore reverse the judgment of the court of appeals and appellant’s conviction and remand the cause for a new trial.

ONION, P.J., and W.C. DAVIS, McCOR-MICK and CAMPBELL, JJ., dissent.

      . Mr. Findley testified that he was "around sixty-two, somewhere in there_”

      . It is unclear whether this is the same spectator she had previously scrutinized.

      .In final argument on guilt/innocence appellant’s counsel stated that complainant had "identified” every black male in the courtroom. However, on the cold record before us we can only determine with certainty as much as is stated in the text above.

      . There was testimony that appellant’s was the only black family residing "in that immediate area.”

      . Emphasis supplied.

      . Perhaps the purest example of when such evidence is admissible to rehabilitate a complaining witness is embodied in Beasley v. State, supra, 428 S.W.2d at 319:
      "The record reflects that the injured party, Milton Bryson, testified on direct examination that at the lineup he identified appellant as the robber, who he thought ‘was second from the front.’
      * %‘t *.V * * *
      Appellant called as a witness Lt. Archer, who conducted the lineup, and elicited testimony from him to the effect that appellant was in position number four in the lineup and not position number two. On cross-examination of the officer by state’s counsel, the following transpired:
      'Q Uh-huh, the Defendant here, is he the one that was selected from the showup?
      A Yes, sir, he was.' ”
      The Court held Lt. Archer’s answer on crossex-amination to be admissible to rebut the inference the defendant attempted to draw that the complainant had identified someone other than the defendant at the lineup. The State was allowed to show the fault lay in the complainant’s recollection at trial, rather than with his lineup identification.

      . The State voiced no objection on this ground, however.

      . Appellant’s mother testified he had worn a brown suit on the morning of November 18. The suit was introduced as a State’s exhibit. Complainant testified her assailant wore a suit “similar to” this exhibit.

      . Nor do we find the testimony of Riddle and Head to be admissible as proof in the first instance that appellant was the assailant, as might be suggested by Lucas v. State, 160 Tex. Cr.R. 443, 271 S.W.2d 821 (Tex.Cr.App.1954). This is so because, being an account of the statement of an out of court declarant, offered to establish the truth of the assertion made therein, such testimony would constitute patent hearsay, and appellant objected to it on this ground also.
      In addition we quote a passage from C. TOR-CIA, WHARTON’S CRIMINAL EVIDENCE § 187 (13th ed. 1972):
      "Where the person who made the extrajudicial identification fails to identify the accused at the trial, the admission of the third person’s testimony as to the fact of such prior identification having been made may depend upon whether the prosecuting attorney was surprised by the failure, in which case it has been held admissible, not as substantive evidence, but only for the purpose of nullifying or neutralizing the effect of such failure.” In this context it should be noted, first, that there was not a total failure by the complainant to identify appellant as her assailant in this case. Second, there was no showing of surprise on the part of the State. To the contrary, it appears the State had Riddle and Head present for this one day long trial in anticipation that complainant would have trouble making a positive identification. In the case of Riddle it appears that the sole reason for her testifying was to bring in evidence of the extrajudicial identification. For these reasons the rationale quoted above will not justify admission of the third party testimony.

      . See footnote 3, ante.

      . The only items of physical evidence introduced by the State at guilt/innocence were the brown suit, see footnote 8 ante, and a pocket knife. Officer Head testified that on an earlier occasion he had been called to appellant’s residence and told that appellant had attacked his brother with this pocket knife. The complainant testified she had only gotten a "glimpse” of the knife that was held to her throat, and could say only that the pocket knife introduced by the State was "about like” that wielded by her assailant.

      . Indeed, we are not sure that on the record before us, with or without the testimony of Riddle and Officer Head, “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). However, sufficiency of the evidence was not raised by appellant on appeal.

      .In view of our disposition of this issue, we need not address appellant’s second ground for review, wherein he argued that the hearsay testimony of Officer R.D. Lewis constituted reversible error. Lewis testified that according to what he had been told by "people at the census deal where they keep records of [student] attendance," appellant had finished the ninth grade at Carter High School. This testimony was intended to rebut defensive testimony that appellant was partially retarded and never got beyond seventh grade in special "retarded” schools. Hence, Lewis’ testimony may well have “seriously impinged” on appellant's defensive position that he had not sufficient mental capacity to "pose as a insurance man,” as complainant testified. See Hayter v. State, 541 S.W.2d 435 (Tex.Cr.App.1976). However, we reserve judgment on this question. We do note that the State concedes Lewis’ testimony constituted hearsay. It should not be admitted again on retrial, if any.