author:
ASHWORTH, Justice. BURDOCK, Justice,
      PENDER, Chief Justice,

text:
    Edward Earl FORTE, Appellant, v. The STATE of Texas, State.
    No. 2-84-012-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 21, 1985.
    Richard Alley, Fort Worth, for appellant.
    Chris Marshall, Asst. Dist. Atty., Fort Worth, for the State.
   OPINION ON REHEARING

ASHWORTH, Justice.

In its Motion for Rehearing, the State contends the original opinion was in reality a minority opinion by Justices Ashworth and Spurlock; that Justice Burdock’s concurring opinion did not state agreement with the supposedly majority opinion but stated a reversal for a different reason. The State further contends that it has been advised by the clerk’s office of this Court that Justice Gray, who assumed office on January 1, 1985, did not participate in the opinion which was issued on January 10, 1985, and that Justice Hughes, who retired on December 31,1984, could not participate in the opinion. In order to clarify the composition of the Court and the opinions of the members, we grant the State’s Motion for Rehearing and the opinion heretofore issued on January 10, 1985, is withdrawn and the following opinion substituted.

Appellant, Edward Earl Forte, was found guilty by a jury of driving while intoxicated. TEX.REV.CIV.STAT.ANN. art. 67011 -1(b) (Vernon Supp.1984). The court assessed punishment at 30 days confinement and a two hundred dollar fine.

We reverse and remand inasmuch as we hold that appellant was improperly denied a limited right to counsel prior to making a decision as to whether to take an intoxilyzer examination.

The evidence reveals that Myrtle Fenton was driving her car on January 10, 1984 when she was struck by another vehicle on the rear passenger side of her car, causing her car to spin and stop in a nearby yard. Fenton was unable to see the driver of the vehicle that hit her.

Immediately prior to the accident, Martha Raincrow was traveling in her car on the same road when she saw appellant’s vehicle in her rearview mirror weaving all over the road. Raincrow testified that she had to move her car to the side of the road in order to avoid a collision with appellant’s vehicle. Raincrow watched appellant pass her car, saw him run a stop sign, and then observed him collide with Fenton’s car. After the accident, Raincrow followed appellant and when he apparently lost control of his vehicle and ran. into a ditch, she stopped her car to get his license plate number. Raincrow thereupon proceeded to telephone the police.

Lieutenant William Crawford testified that when he arrived at the scene he saw appellant in the driver’s seat of a vehicle that evidently had landed in a chain link fence in a ditch. Inasmuch as appellant would not get out of the vehicle upon request, Crawford had to open the door and pull him out. Crawford related that appellant’s pants were undone and his fly was open, appellant smelled strongly of alcohol, had slurred and choppy speech, and could not stand up without support. Appellant was arrested and subsequently submitted to an intoxilyzer test, the results of which indicated that the alcohol concentration level of his breath was 0.10%.

Appellant raises eight grounds of error contending that: (1) during closing argument the State’s attorney impermissibly gave an opinion regarding appellant’s guilt; (2) the evidence is insufficient to sustain the conviction; (3) the court erred in failing to instruct the jury regarding the rebutta-bility of the presumption of intoxication; (4) the court erred in admitting into evidence the results of the intoxilyzer test because appellant had previously invoked and been denied his right to counsel; (5) the court erred in not instructing the jury on the issue of appellant’s voluntary consent to taking the breath test; and the current D.W.I. statute is unconstitutional because: (6) it provides for a conclusive presumption of intoxication, (7) its body contains more subjects than are given fair notice of in its caption, and (8) the term “public place” is overly broad, vague and indefinite. In view of the constitutional challenges appellant makes, we will address these arguments first.

In his sixth ground of error, appellant contends that the statute under which he was convicted creates a conclusive presumption of intoxication once an accused’s alcohol concentration is established at 0.10% or more, and therefore the statute is unconstitutional. We disagree.

Prior to January 1, 1984, TEX.REV.CIV. STAT.ANN. art. 6701Z-1 provided that it was an offense for a person to drive or operate a motor vehicle upon any public road or highway while such person was intoxicated or under the influence of intoxicating liquor. Speed and Driving While Intoxicated, eh. 682, sec. 3, 1979 Tex.Gen. Laws 1608, 1609, amended by Act of June 16,1983, ch. 303, sec. 3,1983 Tex.Gen.Laws 1568, 1574-75. Further, the statutory evi-dentiary rules then in effect provided that if at the time of the person’s arrest there was 0.10% or more by weight of alcohol in his blood, it was presumed that the person was under the influence of intoxicating liquor. Driving While Intoxicated, ch. 709, sec. 1, 1971 Tex.Gen.Laws 2340, 2341, amended by, Act of June 16, 1983, ch. 303, sec. 4, 1983 Tex.Gen.Laws 1568, 1581-82.

The 68th Texas Legislature passed S.B. No. 1, effective Jan. 1, 1984, which amended the driving while intoxicated statute and provided, in pertinent part:

Art. 6701Z-1. Intoxicated driver; penalty

(a) In this article:
(1) “Alcohol concentration” means:
(A) the number of grams of alcohol per 100 milliliters of blood;
(B) the number of grams of alcohol per 210 liters of breath; or
(C) the number of grams of alcohol per 67 milliliters of urine.
(2) “Intoxication means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body; or (B) having an alcohol concentration of 0.10 percent or more.
⅜ ⅜ * * * *
(4) “Public place” has the meaning assigned by Section 1.07(a)(29), Penal Code.
(b) A person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place. The fact that any person charged with a violation of this section is or has been entitled to use a controlled substance or drug under the laws of this state is not a defense.

TEX.REY.CIV.STAT.ANN. art. 6701Z-1 (Vernon Supp.1984).

Under our prior D.W.I. statute, the amount of alcohol in a person’s blood created a presumption regarding whether a person was under the influence of intoxicating liquor. Under the present statutory scheme, however, the presumption has been abolished. Instead, the statute sets out two alternative methods of committing the offense of driving while intoxicated. The State now has the burden of proving that the defendant: (1) was in control of the vehicle; (2) was operating the vehicle in a public place; and either: (3)(a) did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body, OR, (3)(b) had an alcohol concentration of 0.10% or more. At the urging of the United States Congress, statutes of this kind have recently been enacted by the majority of states in the United States and by the District of Columbia.

Appellant asserts that art. 6701Z -1(a)(2)(B) is an impermissible conclusive presumption which violates the Sixth and Fourteenth Amendments to the United States Constitution, and the Texas Constitution art. I, secs. 3, 10 and 19. When the constitutionality of a statute is attacked, the Court must begin with the presumption that the statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting the statute. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). The burden rests upon the individual who challenges the act to establish its unconstitutionality. Id. It is the duty of this Court to construe a statute in such a way as to uphold its constitutionality if possible. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979). Further, when construing a statute, we must determine and follow the legislative intent underlying the enactment of the statute. Faulk v. State, 608 S.W.2d 625, 630 (Tex.Crim.App.1980).

In support of his contention that the statute creates a conclusive presumption, appellant relies upon Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and County Court of Ulster New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). In Sandstrom, the jury was instructed that “the law presumes that a person intends the ordinary consequences of his voluntary acts”. The United States Supreme Court held that this instruction was unconstitutional because the jury may have interpreted the judge’s instruction as constituting either a burden-shifting presumption, or a conclusive presumption, and because either interpretation would have deprived the accused of the right to the due process of law. Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459. In Allen, the court reached a different conclusion and upheld a New York statute which provided that if a weapon was found in an automobile, it was presumptive evidence of its possession by all persons occupying such automobile at the time the weapon is discovered.

Contrary to appellant’s assertions, these authorities are not applicable to the instant case because art. 6701Z-l(a)(2)(B) does not create a presumption of intoxication, nor does it eliminate the prosecutor’s burden of proof when the accused is found to have a level of alcohol concentration of 0.10% in his system. Instead, the statute defines in precise terms the conduct proscribed. In other states that have enacted statutes similar to art. 6701Z-1, the courts have drawn the same conclusion. See Fuenning v. Arizona, 139 Ariz. 590, 680 P.2d 121 (1983); Coxe v. Delaware, 281 A.2d 606 (Del.1971); Burg v. Municipal Court, 35 Cal.3d 257, 198 Cal.Rptr. 145, 673 P.2d 732 (1983); North Carolina v. Basinger, 30 N.C.App. 45, 226 S.E.2d 216 (1976); Ohio v. Vannata, 8 Ohio Misc.2d 22, 456 N.E.2d 1358 (1983); Oregon v. Abbott, 15 Or.App. 205, 514 P.2d 355 (1973); South Dakota v. Gerdes, 252 N.W.2d 335 (S.D.1977); Greaves v. Utah, 528 P.2d 805 (Utah 1974); Washington v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982). Additionally, the Attorney General of Texas has addressed this identical issue and concluded that the statute in question is not constitutionally objectionable. Op.Tex.Att’y Gen. No. JM-68 (1983).

We are unable to agree with appellant’s contention that art. 6701Z -1(a)(2)(B) creates an impermissible conclusive presumption of intoxication. The statute’s effect is to forbid any person to operate a motor vehicle if the alcohol concentration in his blood, breath, or urine is 0.10% or more. This represents a legislative determination that such quantity of alcohol has a sufficient adverse effect upon a person as to make his driving a definite hazard to himself and others. Conviction is possible only when the jury finds beyond a reasonable doubt that the defendant’s alcohol concentration at the time of driving or operating a motor vehicle in a public place was 0.10% or more. This is not based upon any presumption, conclusive or otherwise, and it applies to all persons with an alcohol content of 0.10% or more who drive on Texas highways. Although under art. 6701/ -1(a)(2)(B) it is no longer necessary to prove that the defendant did not have the normal use of mental or physical faculties by reason of the introduction of alcohol into his body, the State must still prove beyond a reasonable doubt that at the time the defendant was driving his alcohol concentration exceeded 0.10%.

We find that art. 6701/ -1(a)(2)(B) does not establish a conclusive presumption of intoxication, and we hold that the statute is constitutional. Appellant’s sixth ground of error is overruled.

In his seventh ground of error appellant contends that TEX.REV.CIV.STAT.ANN. art. 6701Z-5 (Vernon Supp.1984) is unconstitutional because certain changes in the old law were not included within the caption of S.B. No. 1. Specifically, appellant claims that because the provisions of this statute providing for the admissibility at trial of evidence of an accused’s refusal to take or an officer’s refusal to administer a chemical test do not appear in the caption of the ratified bill, fair notice is not provided. See TEX.REV.CIV.STAT.ANN. art. 6501/-5, sec. 3(f) and (g) (Vernon Supp. 1984).

The prior statute provided as follows:

(f) If for any reason the person’s request to have a chemical test for intoxication is refused by the officer or any other person acting for or on behalf of the state, such fact may be introduced into evidence on the trial of such person.

Driving While Intoxicated, ch. 709, sec. 1, 1971 Tex.Gen.Laws 2340, 2341, amended by Act of June 16, 1983, ch. 303, sec. 4, 1983 Tex.Gen.Laws 1568, 1583-84.

The amended version recites:

(f) If for any reason the person’s request to have a chemical test is refused by the officer or any other person acting for or on behalf of the state, such fact may be introduced into evidence on the trial of such person.
(g) If the person refuses a request by an officer to give a specimen of breath or blood; whether the refusal was express or the result of an intentional failure of the person to give the specimen, that fact may be introduced into evidence at the person’s trial.

TEX.REV.CIV.STAT.ANN. art. 6701/-5, secs. 3(f), (g) (Vernon Supp.1984).

We initially note that sec. 3(f) is virtually identical in both the prior version and in the amended version of the statute. Therefore, we overrule ground of error seven as it pertains to TEX.REV.CIV.STAT.ANN. art. 6701/-5, sec. 3(f) (Vernon Supp.1984).

In support of his theory that the caption to S.B. No. 1 provides insufficient notice of the subjects embraced within sec. 3(g), appellant relies solely upon Ex parte Crisp, 661 S.W.2d 944 (Tex.Crim.App.1983).

In the instant case, the caption’s relevant portions provide as follows:

DRIVING WHILE INTOXICATED
CHAPTER 303
S.B. No. 1
AN ACT
relating to offenses of driving while intoxicated, ... providing ... for tests and trial procedures for dealing with an accused person, ...

Act of June 16, 1983, ch. 308, 1983 Tex. Gen.Laws 1568.

The Texas Constitution provides that: No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void as to so much thereof, as shall not be expressed.

TEX. CONST, art. Ill, sec. 35.

This constitutional provision requires that a bill’s caption be specific enough to give a reasonable reader fair notice of the subject and contents of the bill. Crisp, 661 S.W.2d at 946. When a statute is attacked under art. Ill, sec. 35, the Court should construe the statute liberally so as to uphold it if possible. Id.; Stein v. State, 515 S.W.2d 104, 107 (Tex.Crim.App.1974). As stated in Crisp, a somewhat stricter rule of conformity of title to subject matter legislated on within an act is applied to amendments in comparison to the original acts. Crisp, 661 S.W.2d at 946, citing Bates v. State, 587 S.W.2d 121, 128 (Tex.Crim.App.1979).

The issue for our determination, keeping in mind the constitutional provision relating to captions and the above-stated rules, is whether the caption of S.B. No. 1 provides readers with fair notice of the subject matter contained within the portion of the Bill relating to TEX.REV.CIV.STAT.ANN. art. 6701Z-5, sec. 3(g) (Vernon Supp.1984).

The court in Crisp held that the caption of H.B. 730, which amended the Texas Controlled Substances Act, failed to give readers fair notice of the subject matter contained within the bill itself. H.B. 730 modified several areas of the existing Controlled Substances Act, added ten new sections, and repealed at least one section. There were also several statutes in addition to the Controlled Substances Act which were modified by the bill. The Crisp court held that:

The caption to the bill before us refers, at best, to changes in penalties and offenses relating to the Controlled Substances Act (at worst, the bill doesn’t even give notice of those changes — see concurring opinion by Judge Clinton). No mention is made of changes made in the Code of Criminal Procedure or the Penal Code. Since the caption refers to one act and has the effect of modifying at least two other separate statutes not mentioned in the caption, it does not give readers fair notice of the subject matter contained within the bill. Even the most liberal construction of this caption and bill would not permit us to find that the caption fulfills Texas Constitutional requirements.

Crisp, 661 S.W.2d at 947.

The “fair notice” standard with which TEX. CONST, art. Ill, see. 35 is to be applied, requires that the caption give reasonable notice of the contents of the bill to an average reader. Crisp, 661 S.W.2d at 947. There is no constitutional requirement that the caption of an amendatory act set out exactly what changes were made in the amended act, so long as the subject of the amendatory act is not “remote” from the subject of the original act. Smith v. Davis, 426 S.W.2d 827, 833 (Tex.1968). As stated in Smith,

‘It would be burdensome if not intolerable to require that the title (or caption of an act) should be as full as the act itself. The word “title” implies that no such requirement exists.’ [Citation omitted]. It is not necessary that the caption of an amendatory bill apprise the reader of the precise effects of the body of the bill, so long as the general subject of the amending bill is disclosed.

Id. at 833.

In a footnote in Crisp, the Court of Criminal Appeals quoted a provision from City of Brownsville v. Public Utility Commission, 616 S.W.2d 402 (Tex.Civ.App. — Texarkana 1981, writ ref d n.r.e.), as stating a useful way to apply this standard:

‘If (an average legislator or interested citizen) interested in legislation on a particular subject would be prompted by the title to examine the body of the bill for provisions relating to that subject, then the title is sufficient. But if he would be likely to get the impression from the title that further reading is unnecessary because the bill does not relate to that subject then the bill is unconstitutional to the extent that it deals with that subject.’

Crisp, 661 S.W.2d at 948, fn 3.

We find that an average legislator or citizen who was interested in legislation regarding the effect of an accused’s refusal to have a chemical test performed would be prompted by the caption of S.B. No. 1 to examine the body of the bill for provisions pertaining to that subject. Therefore, we hold that the caption of S.B. No. 1 provides fair notice of the subject and contents of TEX.REV.CIV.STAT.ANN. art. 6701/ -5, sec. 3(g) (Vernon Supp.1984), and is not unconstitutional in this regard. Accordingly, we overrule appellant’s seventh ground of error.

In his final constitutional challenge, appellant’s eighth ground of error contends that the definition of the term “public place” in the current D.W.I. statute is over-broad, vague and indefinite, and is therefore unconstitutional.

The prior version of the D.W.I. statute applied to “any public road or highway in this State, ... or upon any street or alley within the limits of an incorporated city, town or village, ...” Speed and Driving While Intoxicated, ch. 682, sec. 3, 1979 Tex. Gen.Laws 1608, 1609 (amended 1983).

The current version of art. 6701/-1(b) specifies that: “A person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place.” TEX.REV.CIV.STAT.ANN. art. 6701/-l(b) (Vernon Supp.1984) (emphasis added). Article 6701/-l(a)(4) provides that: “ ‘Public place’ has the meaning assigned by section 1.07(a)(29), Penal Code.” That section provides as follows:

‘Public place’ means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

TEX.PENAL CODE ANN. sec. 1.07(a)(29) (Vernon 1974).

Appellant asserts that the current definition of “public place” is so broad that it could result in a person’s conviction for the operation of a motor vehicle upon private property which is nonetheless open to public view, and for that reason the statute penalizes both innocent and guilty behavior, in violation of the U.S. CONST, amends. VI and XIV, and TEX. CONST, art. I, secs. 3, 10 and 19. Other than these constitutional sections, appellant cites no case authority in support of his proposition, and we have found none.

The standard for determining whether a statute is void for vagueness is whether it gives a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). The terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. Connally v. General Construction Company, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Generally, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Id.

The present version of art. 6701Z-1 is .broader than the prior version; however, we find that the statute is sufficiently specific to provide a reasonable person with notice of what constitutes a “public place”. There was no motion to quash the misdemeanor information charging appellant with the offense of D.W.I., and the record reflects no objection to this document. We hold that the definition of “public place” in TEX.PENAL CODE ANN. sec. 1.07(a)(29), as it applies to art. 6701Z-l(b), is not overly broad, vague or indefinite and is constitutional. Appellant’s eighth ground of error is overruled.

Appellant’s first ground of error complains of a statement made by the State’s attorney during closing arguments in the guilt-innocence phase of the trial. Specifically, the following dialogue occurred:

MR. PURCELL [State’s attorney]: Now, you are performing a very important function in our society and in our country. It is only in American [sic] where an accused person has the rights that Mr. Forte has. I have to prove him guilty. And I have to present evidence to you to show he is guilty. We are not going to convict innocent people. [Emphasis added.]
MR. ALLEY [Defense counsel]: Your Honor, I would object to the prosecutor referring to the guilt or innocence of the accused. That’s a decision for the jury—
THE COURT: Sustained.
MR. ALLEY: We would request the court ask the jury to disregard that last comment in reference to his belief in guilt or innocence.
THE COURT: Disregard the prior statement by Mr. Purcell.
MR. ALLEY: Your Honor, that is extremely prejudicial to my client. We would respectfully ask for a mistrial.
THE COURT: Denied.

Appellant complains of the State’s use of the phrase “We are not going to convict innocent people.” To be permissible, jury argument must fall within one of the following four general eatagories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Darden v. State, 629 S.W.2d 46, 52 (Tex.Crim.App.1982); Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex.Crim.App.1973).

It is error for the prosecution to interject into the jury argument his personal opinion about a witness’s credibility. Menefee v. State, 614 S.W.2d 167, 168 (Tex.Crim.App.1981). In the instant case, it is conceivable that the jury might have interpreted the complained of argument as the prosecutor’s personal opinion that appellant was not an innocent person. If that be the case, this unsworn testimony exceeded the permissible bounds of the above four areas, and was improper. However, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Mathews v. State, 635 S.W.2d 532, 539 (Tex.Crim.App.1982); Todd v. State, 598 S.W.2d 286, 296 (Tex.Crim.App.1980). Ordinarily, any injury from an improper jury argument by a prosecutor is obviated when an objection thereto is sustained and the jury is instructed to disregard the argument. Hodge v. State, 631 S.W.2d 754, 759 (Tex.Crim.App.1982). The test for determining improper jury argument is whether the remarks made were so inflammatory that their prejudicial effect cannot reasonably be removed by an instruction by the trial court to disregard the statements made. Id.

In light of the record before us and the prompt action of the trial court in sustaining the objection and instructing the jury not to consider the argument for any purpose, we find that the overruling of the motion for mistrial was not reversible error. See Blackstock v. State, 433 S.W.2d 699, 700 (Tex.Crim.App.1968). Appellant’s first ground of error is overruled.

In his third ground of error appellant contends that the trial court erred in failing to charge the jury on the issue of the presumption of intoxication, pursuant to TEX.PENAL CODE ANN. sec. 2.05 (Vernon Supp.1984). This section states that when the Penal Code or another penal law establishes a presumption with respect to any fact which is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:

(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;
(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;
(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and
(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

Id.

Such an instruction was mandatory under the prior D.W.I. statute for the reason that a failure to so instruct the jury could shift the burden of proof from the State to the accused. See Eckman v. State, 600 S.W.2d 937, 939 (Tex.Crim.App.1980). Appellant contends that the jury in the instant case should hive been charged in accordance with Peral Code sec. 2.05. We disagree.

In view of our holding in this opinion that art. 6701/ -1(a)(2)(B) does not create a presumption of guilt, but merely defines the offense of D.W.I. with specificity, Penal Code sec. 2.05 does not come into play. The jury was properly instructed that they must find from the evidence beyond a reasonable doubt that appellant was operating a motor vehicle in a public place while he was intoxicated, and that unless they so found beyond a reasonable doubt, or if they had a reasonable doubt thereof, they must acquit appellant. The jury was further instructed that all persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.

We find that the trial court did not err in refusing to charge the jury on the issue of the presumption of intoxication. Appellant’s third ground of error is overruled.

Appellant’s fourth ground of error contends the trial court erred in admitting evidence of the results of an intoxilyzer test which was administered after appellant had requested and been denied the presence of counsel.

The question presented is whether a person has the right to consult with an attorney before making a decision to .give or refuse a breath test. Article 6701/-5 provides in effect that a driver shall be deemed to have given consent to a breath or blood test if arrested for driving while intoxicated. If the person refuses to give the specimen, he is subject to the suspension of his driver’s license for a period of 90 days after an administrative hearing. The act further provides that the results of the test are admissible upon trial, and the failure or refusal to give the specimen is likewise admissible upon trial. Article 6701Z-1 provides that a person having an alcohol concentration of 0.10% or more is intoxicated.

We have found no Texas cases which construe these portions of the statute since it became effective on January 1, 1984. The case of Growe v. State, 675 S.W.2d 564 (Tex.App. — Houston [14th Dist.] 1984, no pet.) addressed the question as it existed under the prior law. The court there held that the defendant did not have a constitutional right to counsel prior to making the decision to give a specimen. In its opinion, however, the court noted that under the statute then in effect, the refusal could not be admitted into evidence. Also, as previously discussed in the instant case, the law as it then existed provided that an alcohol concentration of 0.10% might be considered as a presumption of intoxication. Driving While Intoxicated, ch. 709, sec. 1, 1971 Tex. Gen.Laws 2340, 2341 (amended 1983). The court in Growe specifically stated that no ruling was being made with regard to the effect of the new law.

When we look for precedent from other jurisdictions, we find there is a division of opinion. While there is some difference in the laws of the various states answering the issue, they all generally address the same issue. State of Maine v. Jones, 457 A.2d 1116 (Me.1983), held that neither Maine’s implied consent law nor its constitution nor the Federal constitution provided a person the right to consult with an attorney before deciding whether to take a blood-alcohol test; however, the case outlined the diverse opinions on the issue. While these opinions are of value in determining the principles to be used in formulating an answer to the issue, they do not present hard and fast precedent which must be followed by this State.

The answer to the issue of whether the defendant should be afforded the right to counsel depends upon whether this is a critical pretrial stage. The accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or not, where counsel’s absence might derogate from the accused’s right to a fair trial. United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967).

In determining whether the stage prior to the blood-alcohol test is critical, we briefly review the situation. The accused has been taken into custody; he has been informed that he has the right to remain silent and has the right to consult an attorney, and he has been informed that his operator’s license can be suspended if he refuses to give a specimen of his breath or blood. He is placed on the horns of a dilemma — he has been told he may remain silent and consult an attorney, and in the same breath is required to answer a question which has significant results. If he refuses, he knows his license may be suspended and the fact that he refused can be used as evidence against him in his trial. If he consents and the test reveals an alcohol content in his blood of 0.10% or more, he is automatically guilty of driving while intoxicated. Even if the test results show less than 0.10% concentration of alcohol, there is no guarantee that he will not be tried for the offense of public intoxication, or driving while intoxicated by reason of the fact that his mental or physical faculties were impaired. It stretches reason to say this is not a critical stage of the pretrial proceeding. Accord State of Vermont v. Welch, 135 Vt. 316, 376 A.2d 351 (1977). We therefore find, subject to the limitations to be discussed infra, that a person has a right to counsel prior to making a decision regarding whether to submit to the chemical test referred to in arts. 6701/-1 and 5.

Having determined that the right to counsel exists at this critical stage, is it an unbridled right? It is common knowledge that with time the normal bodily processes eliminate the alcohol from the blood. If the accused is permitted to unduly delay the answer to the request, it would be meaningless. Although it was based on a statutory rather than a constitutional right to counsel, we hold that Prideaux v. State of Minnesota, Department of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976) provides the proper limited right to counsel. Adopting the language of that opinion, we hold that any person who is required to submit to a chemical test of the alcohol content of his blood, breath, or urine shall have the right to consult with a lawyer of his own choosing before making that decision, provided that such consultation does not unreasonably delay the administration of the test. The person must be informed of this right, and police officers must assist in its vindication. The right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel. If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.

In determining in the case at bar whether the error in admitting into evidence appellant’s intoxilyzer test results constituted reversible error, we must decide whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction or affected the punishment assessed. See Johnson v. State, 660 S.W.2d 536, 538 (Tex.Crim.App.1983). In applying this standard to the instant case, we hold the error is clearly not harmless, and mandates reversal. Appellant’s fourth ground of error is sustained.

Since the decisions in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), a challenge to the sufficiency of the evidence must be considered even though reversal is required on other grounds. See Froyd v. State, 633 S.W.2d 884, 885 (Tex. Crim.App.1982). This is so because a challenge to the sufficiency of the evidence, if sustained, bars a retrial. Graham v. State, 643 S.W.2d 920, 924 (Tex.Crim.App.1983).

In ground of error two appellant asserts that there is insufficient evidence to support his conviction for driving while intoxicated. The basis for appellant’s contention is that the intoxilyzer test results indicated that appellant had a blood alcohol concentration of 0.10%, and that inasmuch as the State’s expert witness testified that the machine had an error factor of plus or minus 0.01%, it is very likely that the actual blood alcohol concentration of the appellant was 0.09% or less. Additionally, appellant contends that the reference sample used by the machine operator which should have tested as 0.10%, actually tested at 0.09%, and this was insufficient to prove beyond a reasonable doubt that appellant was intoxicated. Appellant claims that this discrepancy in the reference sample test results rebuts the opinion testimony of witnesses that appellant was intoxicated.

In reviewing the sufficiency of the evidence to support a conviction based upon direct evidence, the evidence is viewed in the light most favorable to the verdict. Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.; Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983).

The sufficiency of the evidence is a question of law. The issue on appeal is not whether we as a court believe the prosecution’s evidence or believe that the defense evidence “outweighs” the State’s evidence. If there is evidence which establishes guilt beyond a reasonable doubt, and if the trier of fact believes that evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds. See Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.1984).

Appellant was charged by information under both prongs of art. 6701Z-l(a)(2). The jury was charged that they should find appellant guilty as charged if they found from the evidence beyond a reasonable doubt that he was driving or operating a motor vehicle in a public place and that either: (1) he did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body, or (2) he had an alcohol concentration of 0.10% or more.

With regard to (1), Martha Raincrow testified that she saw appellant driving a vehicle and weaving all over the road, and she thereafter watched appellant run a stop sign, collide with Myrtle Fenton’s car, and proceed to lose control of his car which ran into a ditch. Raincrow further testified that appellant stumbled and could not stand up without support.

Lieutenant William Crawford stated that when he approached appellant’s vehicle, there was a strong smell of alcoholic beverage on appellant’s breath and person, the zipper on appellant’s pants was undone and the pants were open, appellant’s speech was slurred and choppy, and he could not stand without support.

Inasmuch as we have held that appellant’s intoxilyzer test results should not have been admitted into evidence, we will not consider whether these same results rebutted the testimony of the State’s eyewitnesses.

It is proper for a charging instrument to allege different ways of committing the offense in the conjunctive and for the jury to be charged disjunctively. Vasquez v. State, 665 S.W.2d 484, 486 (Tex.Crim.App.1984). Proof of either is sufficient absent an objection to the charge based upon insufficient evidence, or a motion to force the state to elect. Vasquez, 665 S.W.2d at 487. Where a jury returns a general verdict finding a defendant guilty as charged in the information the verdict must be applied to the phase of the offense which is supported by the evidence. Id. If there is sufficient evidence to prove one of the two ways of committing the offense, this Court need not consider whether the evidence is also sufficient to prove the alternative theory. See id. Therefore, proof of either (1) or (2), above, is sufficient to sustain appellant’s conviction.

We find that the evidence is sufficient to show that appellant was driving a vehicle in a public place while he did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body. This finding alone is sufficient to sustain the conviction, without regard to the evidence concerning the intoxi-lyzer test results.

Appellant’s second ground of error is overruled.

In his fifth ground of error appellant claims that the trial court erred in failing to instruct the jury on the issue of whether appellant voluntarily consented to submit to an intoxilyzer examination. Appellant’s basic assertion is that at the time he consented to take the intoxilyzer examination he was in custody, had been placed in a small room in the Fort Worth police station, and had previously requested presence of counsel.

It is unclear from reading appellant’s ground of error whether he is contending that the fact issue as to voluntariness is solely because he invoked and was denied his right to counsel, or whether appellant claims there is other evidence in the record which raises the issue of his consent to take the breath test.

In light of our holding that appellant’s intoxilyzer test results should not have been admitted into evidence because appellant was denied his-right to counsel, we find it unnecessary to address this ground of error. However, we do note that had appellant’s request to contact counsel been granted, the trial court would have been correct in refusing appellant’s requested instruction. Lieutenant Crawford testified that appellant voluntarily consented to take the intoxilyzer examination, and the record is devoid of any evidence to the contrary.

Appellant’s fifth ground of error is overruled.

Inasmuch as we have sustained appellant’s fourth ground of error and held that the trial court committed reversible error in admitting into evidence the results of appellant’s intoxilyzer test, we reverse and remand.

JOE SPURLOCK II and GRAY, JJ., and W.A. HUGHES, Jr., J., Retired (Sitting for JORDAN, J.), concur.

BURDOCK, J., files a concurring opinion.

FENDER, C.J., files an opinion concurring in part and dissenting in part in which HILL, J., joins.

BURDOCK, Justice,

concurring.

I concur in the majority opinion and believe this case must be remanded for a new trial, but for an additional reason besides that expressed by Justice Ashworth.

No instruction by the trial court can cure the error caused by the prosecutor’s improper comment that “We are not going to convict innocent people.” Clearly, the prosecutor’s highly prejudicial and unfair statement does not fall within one of the four general categories of acceptable jury argument set forth in the majority opinion.

In making such an argument, the prosecutor seeks to mislead the jury into believing that only the State represents the truth and that the defense counsel or court could be hiding something. While endeavoring to usurp the province of the jury, the State’s attorney displays arrogance in his effort not to try the case, but rather to hold defense counsel up to shame, ridicule, and contempt.

I agree with the reasoning of the court in Bell v. State, 614 S.W.2d 122 (Tex.Crim.App.1981) and Menefee v. State, 614 S.W.2d 167 (Tex.Crim.App.1981). This conduct has no place in a court of law. The effect of this type of argument is that it implies that only the prosecution can speak the truth and that the defense attorney has a lesser code of ethical behavior. See Lewis v. State, 529 S.W.2d 533 (Tex.Crim.App. 1975). All attorneys are officers of the court and should conduct themselves accordingly.

PENDER, Chief Justice,

concurring in part and dissenting in part.

Appellant challenges his D.W.I. conviction on eight grounds:

1. Improper prosecutorial closing argument wherein the prosecutor expressed an opinion as to appellant’s guilt;
2. Insufficient evidence to sustain conviction;
3. Failure of the trial court to charge the jury on rebuttability of the presumption of intoxication;
4. Improper admission of intoxilyzer test results because appellant requested counsel before taking test and was denied counsel;
5. Failure of the trial court to charge the jury on the issue of voluntariness of appellant’s consent to the intoxilyzer test;
6. Unconstitutionality of a conclusive presumption as to intoxication;
7. Unconstitutionally fatal variance between the caption and the body of Act of June 16, 1983, ch. 303, 1983, Tex.Gen. Laws 1568; and
8. That the definition of “public place” is unconstitutionally overbroad.

I concur in both the holding of the majority and the underlying legal reasoning in grounds of error two, three, six, seven and eight; i.e., there is sufficient evidence to convict, the appellant was not entitled to a charge on rebuttable presumption, there is no unconstitutional conclusive presumption, the caption fairly embraces the enacted provisions under attack in this appeal, and the definition of “public place” is not constitutionally overbroad.

I concur with the result reached by the majority on ground of error one, but I do so on other grounds. The prosecutor first referred to you in addressing the jury as to its function in the trial process. He next referred to Mr. Forte’s rights. He next referred to I in connection with his burden of proof. He then referred to we in stating “We are not going to convict innocent people.” By using the collective we, the prosecutor would apparently include himself, defense counsel, the jury, the court and all the witnesses. This appears to me to be a truism inherent in our system and falls within the general category of a plea for proper law enforcement. I would hold the argument permissible and overrule this ground of error on that basis.

As to appellant’s fifth ground of error concerning voluntariness, I concur with the result reached by the majority but, in light of my subsequent feeling about denial of counsel, I would go further and hold that under the evidence in this case no issue was raised as to the voluntariness of consent and thus no charge to the jury on same should be considered by the trial court.

This brings us around to ground of error four, the challenge sustained by the majority which reverses this case because appellant insisted upon his right to counsel. As stated in the majority opinion, TEX.REV. CIV.STAT.ANN. art. 6701Z-5, sec. 1 (Vernon 1984) provides that the driving of a motor vehicle on a public street shall be deemed to constitute consent to the taking of a breath specimen. Consent removes any warrant requirement. I would treat this case in the same genre as all consensual search and seizure questions. I would affirm the cause.

HILL, J., joins.

      . 23 U.S.C.A. sec. 408(e)(1)(C) (West Supp.1984) (making an enactment of a 0.10% blood-alcohol law mandatory for any state wishing to receive federal highway funds to support alcohol traffic safety programs).

      . Alabama (ALA.CODE tit. 32-5A-191(a)(l) (Supp.1984)); Alaska (ALASKA STAT. sec. 28.-35.030(a) (1984)); Arizona (ARIZ.REV.STAT. ANN. sec. 28-692(B) (Supp.1984-85)); Arkansas (ARK.STAT. sec. 75-2503(b) (Supp.1983)); Colorado (COLO.REV.STAT. tit. 42-4-1202(1.5)(a) (1984)) (0.15%); Connecticut (CONN.GEN. STAT.ANN. sec. 14-227a(g) (1983)); Delaware (DEL.CODE ANN. tit. 21, sec. 4177(b) (1979)); District of Columbia (D.C.CODE ANN. sec. 40-716(b)(1) (Supp.1984)); Florida (FLA.STAT. ANN. sec. 316.193(l)(b) (West 1984)); Illinois (ILL.REV.STAT. ch. 95½, sec. 11-501(1) (Supp. 1984-85)); Iowa (IOWA CODE sec. 321.-281(l)(b) (Supp.1984-85)) (0.13%); Maine (ME. REV.STAT.ANN. tit. 29, sec. 1312-B(1)(B), (2)(C) (Supp.1984-85)); Michigan (MICH.STAT. ANN. sec. 9.2325(2) (Callaghan Supp.1984-85) [257.625b]); Missouri (MO.ANN.STAT. sec. 577.012(1) (Vernon Supp.1984)); Nebraska (NEB.REV.STAT. sec. 39.669.07) (Supp.1982)); New York (N.Y.VEH. & TRAF. sec. 1192(2) (Supp.1984-85)); North Carolina (N.C.GEN. STAT. sec. 20-138.1(a)(2) (1983)); North Dakota (N.D.CENT.CODE sec. 39-08-01(l)(a) & (2)(a) (Supp.1983)); Oklahoma (OKLA.STAT.ANN. tit. 47, sec. 11-902(A)(1) (West 1984-85)); Oregon (OR.REV.STAT. secs. 487.540, 487.545 (1983)) (0.08%); Pennsylvania (75 PA.CONS.STAT.ANN. sec. 3731(a)(4) (Supp.1984-85)); South Dakota (S.D. CODIFIED LAWS ANN. sec. C. 32-23-1(1) (1984)); Texas (TEX.REV.CIV.STAT.ANN. art. 6701L-1(2)(B) (Vernon Supp.1984)); Utah (UTAH CODE ANN. sec. 41-6-44(1) (Supp. 1983)) (0.08%); Vermont (VT.STAT.ANN. tit. 23, sec. 1201(a)(1) (Supp.1984)); Washington (WASH.REV.CODE ANN. sec. 46.61.502(1) (Supp.1984-85)); Wisconsin (WIS.STAT.ANN. sec. 346.63(l)(b) (Supp.1984-85)).

      . We note that in addressing the prior D.W.I. statute the Texas Court of Criminal Appeals has held that "[w]hether a particular blood alcohol level should carry the weight of a presumption is a matter for the legislature.” Turpin v. State, 606 S.W.2d 907, 912 (Tex.Crim.App.1980).

      . Act of May 29, 1981, ch. 268, 1981 Tex.Gen. Laws 696.

      . We note that a challenge has recently been made concerning the caption to the Texas Speedy Trial Act, TEX.CODE.CRIM.PROC.ANN. art. 32A.02 (Vernon Supp.1984) (The entire Act with the caption is located at: Act of June 16, 1977, ch. 787, 1977 Tex.Gen.Laws 1970.). See Noel v. State, — S.W.2d, No. 827-83 (Tex.Crim.App., March 14, 1984, State’s Motion for Rehearing granted) (not yet reported). In Noel, the merits of the State’s contention that the caption was defective were not addressed inasmuch as the Texas Court of Criminal Appeals held that the State’s failure to pursue the orderly procedure for discretionary review in raising the constitutional claim presented nothing for review. Four judges dissented, stating that a careful comparison of the holding in Crisp with the caption of the Speedy Trial Act makes it readily apparent that the Speedy Trial Act suffers from the exact malady diagnosed in Crisp, 661 S.W.2d at 53.

      . The following courts have found, on various bases, a right to consult with an attorney: City of St. Louis Park v. Bunkers, 310 Minn. 431, 432, 247 N.W.2d 404, 404 (1976) (after arrest, police must accommodate timely request to telephone lawyer); People v. Gursey, 22 N.Y.2d 224, 229, 292 N.Y.2d 416, 419, 239 N.E.2d 351, 353 (1968) (no arrest, no Miranda, defendant's request to telephone particular attorney denied); People v. Rinaldi, 107 Misc.2d 916, 917-18, 436 N.Y.S.2d 156, 157 (1981) (constitutional right to consult with attorney if no significant or obstructive delay); People v. Sweeney, 55 Misc.2d 793, 795, 796, 286 N.Y.S.2d 506, 508-09 (1968) (distinguishing Schmerber on basis that New York law, unlike California law, permits right not to consent to test; defendant arrested and received Miranda warnings); State v. Hill, 277 N.C. 547, 551, 178 S.E.2d 462, 465 (1971) (state statute provides for communication with counsel and friends immediately upon arrest, detention, or deprivation of liberty); City of Dayton v. Nugent, 25 Ohio Misc. 31, 34, 36, 265 N.E.2d 826, 828, 830 (1970) (after arrest and Miranda warnings, defendant told he could not call attorney until after test, pursuant to police department policy); State v. Welch, 135 Vt. 316, 321-22, 376 A.2d 351, 355 (1977) (considering driver’s right to refuse test, chemical test can rise to critical stage in serious criminal case); State v. Fitzsimmons, 93 Wash.2d 436, 448, 610 P.2d 893, 900, vacated on other grounds, 449 U.S. 977, 101 S.Ct. 390, 66 L.Ed.2d 240 (1980) (after arrest and Miranda warnings, defendant denied consultation with attorney even though drivers have right to refuse test).
      Courts finding no right to consult with counsel include: Copelin v. State, 635 P.2d 492, 493 (Alaska App.1981) (no constitutional right to attorney when deciding whether to take test); Holmberg v. 54-A Judicial District Judge, 60 Mich.App. 757, 760, 231 N.W.2d 543, 544 (1975) (arrested driver’s test not critical stage); Flynt v. State, 507 P.2d 586, 588 (Okla. Cr.App.1973) (no right to counsel in choosing one of tests or refusing, after arrest and Miranda warnings); State v. Newton, 291 Or. 788, —, 636 P.2d 393, 404 (1981) (not every evidence-gathering procedure is critical stage; defendant not formally charged); Law v. City of Danville, 212 Va. 702, 703, 187 S.E.2d 197, 198 (1972) (minimal risk that breath test procedure would derogate from right to fair trial).

        State v. Jones, 457 A.2d at 1118 n. 4.

      . We are aware that the 1977 case of Vermont v. Welch, just cited, was discussed in the similarly titled case State of Vermont v. Welch, 136 Vt. 442, 394 A.2d 1115 (1978). One ground of error discussed in the 1978 case was appellant’s contention that the failure of the police to advise him of his alleged right to counsel to assist him in deciding whether to take a breath test denied him a right to counsel at a critical stage, violating his constitutional rights and rendering his refusal inadmissible in evidence. The discussion in the 1978 case states that the 1977 decision held only that police officials may not, without reason, deny access between defendant and his lawyer, when a lawyer is requested and is readily available. The 1978 case further states the 1977 decision cannot be read as holding that a request to submit to a breath test is a critical stage in the federal constitutional sense. After making these last two observations, the court stated it declined to reach the defendant’s right to counsel claim. The 1978 decision concludes with the holding that the Vermont statutory law mandates that a person who is requested by a law enforcement officer to submit to a chemical test shall have the right to consult with an attorney prior to deciding whether to submit to the test; that the decision must be made within a reasonable time but no later than thirty minutes from the time of the initial attempt to contact the attorney.


source: Caselaw Access Project

author: GAMMAGE, Justice.

license: Public Domain

text:
    Dana RIPLEY, Chief Appraiser, et al., Appellants, v. Charles M. STEPHENS, et ux., Appellees.
    No. 14242.
    Court of Appeals of Texas, Austin.
    Feb. 27, 1985.
    Rehearing Denied March 20, 1985.

      Brian E. Brown, Caíame, Linebarger & Graham, Austin, for appellants.
    William B. Ray, Copperas Cove, for ap-pellees.
    Before SHANNON, C.J., and BRADY and GAMMAGE, JJ.
   GAMMAGE, Justice.

Dana Ripley, as Chief Appraiser of the Lampasas County Appraisal District, appeals from the trial court’s judgment in favor of Charles M. Stephens, and his wife, Mary Stephens. We will reverse the judgment and render judgment in favor of Ripley.

It is undisputed that Charles Stephens owns, as his separate property, the house which he and Mary Stephens now claim as their marital homestead. They claimed the homestead exemption from school ad valo-rem taxes for persons over 65 years of age for the 1982 tax year on this residence.

It is also undisputed that on January 1, 1982, Charles Stephens was under the age of 65, and Mary Stephens was over the age of 65. Based upon Mary Stephens’ age, the couple applied for the ad valorem tax exemption. The Appraisal Review Board, and Ripley, as Chief Appraiser, denied this application. The Stephens then sought review of this action in the trial court, which rendered a summary judgment that the Stephens were entitled to the exemption. It is from this judgment that Ripley appeals.

Texas Const. Ann. art. VIII, § 1-b (Supp. 1985) authorizes the Legislature to allow certain exemptions from ad valorem taxation within guidelines prescribed by the Legislature. That section provides, in pertinent part:

The legislature by general law may exempt an amount not to exceed Ten Thousand Dollars ($10,000) of the market value of the residence homestead of a person who is disabled as defined in Subsection (b) of this section and of a person sixty-five (65) years of age or older from ad valorem taxation for general elementary and secondary public school purposes. The legislature by general law may base the amount of and condition eligibility for the additional exemption authorized by this subsection for disabled persons and for persons sixty-five (65) years of age or older on economic need .... The legislature by general law may define residence homestead for purposes of this section, (emphasis added).

Pursuant to this authorization, the Legislature enacted § 11.13, Tex.Tax Code Ann. (1982 and Supp.1985). Section 11.13 provides for a $10,000 exemption from school taxes on a residential homestead owned by any person age 65 years or older. Section 11.13(j)(4) defines “residential homestead” as a structure “that is occupied as his principal residence by an owner who qualifies for the exemption.” (emphasis added).

Ripley contends that while the residence here involved may be classified as Mary Stephens’ homestead for other constitutional purposes, she is not the owner of the residence, and cannot therefore claim the exemption prescribed in § 11.13. We agree. The owner of the residence, Charles Stephens, does not qualify for the exemption for the 1982 tax year because he was not then 65 years of age. The Legislature is specifically authorized by art. VIII, § 1-b to prescribe by definition the residence homestead to which the benefit will be granted. The statute granting the exemption specifically restricts the benefit to the owner of the property.

Appellees clearly do not meet the statutory requirements for the exemption. We therefore reverse the trial court’s judgment and render judgment in favor of appellants.

      . E.g., exemption from forced sale and partition, under Tex.Const.Ann. art. 16, § 50, et seq. (Supp.1985).


author: WARREN, Justice. HOYT, Justice,

text:
    David Paul McINTOSH, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0226-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 28, 1985.

      Ronnie G. Harrison, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Karen Zellars, Lynn McClellan, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before WARREN, DUGGAN and HOYT, JJ.
   OPINION

WARREN, Justice.

A jury found appellant guilty of aggravated kidnapping and robbery and assessed punishment of thirty-seven and five years confinement, respectively. Appellant brings four grounds of error alleging that the trial court erred in: (1) entering a void cumulation order, (2) submitting a fundamentally defective jury charge, (3) denying appellant’s requested jury instruction to limit the jury’s consideration of a witness’ testimony, and (4) denying appellant’s motion to withdraw enhancement allegations from the jury's consideration. We affirm.

On June 18, 1983, appellant escaped from the Sugarland Unit of the Texas Department of Corrections. Two days later, appellant and another escaped inmate abducted the complainant as she entered her automobile. The complainant testified that appellant’s accomplice held a metal object to her throat and forced her into the automobile. The appellant drove the car around Harris County for more than six hours while making periodic stops for gas, to make phone calls, and to purchase clothing. The complainant was at various times bound, gagged, blindfolded, and placed in the rear seat of the automobile. Appellant and his cohort eventually abandoned the car, leaving the complainant bound and gagged in the automobile. Appellant was apprehended shortly thereafter.

In his second ground of error, appellant contends that the trial court submitted a fundamentally defective jury charge on aggravated kidnapping which omitted the phrase “with the intent to prevent his [sic] liberation” from the application paragraph.

The charge to the jury on aggravated kidnapping contained instructions authorizing conviction if appellant acted alone or if appellant was a party to the offense. The charge on appellant’s individual culpability read as follows:

The defendant, David Paul McIntosh, stands charged by indictment with the offense of aggravated kidnapping, alleged to have been committed in Harris County, Texas, on or about the 20th day of June, A.D., 1983. To this charge the defendant has pleaded not guilty.
A person commits the offense of kidnapping if he intentionally or knowingly abducts another person. The offense becomes aggravated kidnapping if he does so with the intent to facilitate the commission of a felony or the flight after the attempt or commission of a felony.
So that you may better understand the nature of the offense with which the defendant is charged, I now define certain terms and words.
“Abduct” means to restrain a person with intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found.
“Restrain” means to restrict a person’s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. Restraint is “without consent” if it is accomplished by force, intimidation, or deception.
A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody. An offense under this section is a felony if the actor is confined in a penal institution.
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Following the definitional section, the court concluded its charge on aggravated kidnapping by applying the law to the facts:

Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, David Paul McIntosh, in Harris County, Texas, on or about the 20th day of June, A.D., 1983, did then and there unlawfully, intentionally or knowingly restrain Jo Ann Pollack hereafter styled the Complainant, by secreting and holding the Complainant in a place where she was not likely to be found, with intent to facilitate flight after the attempt and commission of the felony of escape, you will find the defendant guilty of aggravated kidnapping.

The offense of aggravated kidnapping is set out in section 20.04 of the Penal Code which provides:

“A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
⅜ ⅜ * * * *
(8) facilitate the commission of a felony or the flight after the attempt or commission of a felony;

Tex.Penal Code Ann. sec. 20.04 (Vernon 1974) (emphasis added). The term “abduction” is defined in section 20.01:

“Abduct” means to restrain a person with intent to prevent his liberation by:
(A) secreting or holding him in a place where he is not likely to be found ...

Tex.Penal Code Ann. sec. 20.01(2) (Vernon 1974) (emphasis added).

The application paragraph in this case did not use the term “abduct,” but instead attempted to set out the elements of abduction. That portion, however, omitted a sub-element of the term abduction: intent to prevent liberation.

The appellant asserts that this omission resulted in fundamental error and that we are compelled by the decisions in Evans v. State, 606 S.W.2d 880 (Tex.Crim.App.1980), and Hill v. State, 640 S.W.2d 879 (Tex.Crim.App.1982), to order a new trial of this case. Appellant further argues that our review for fundamental error must be confined to the language contained in the paragraph applying the laws to the facts.

The Court of Criminal Appeals has created a considerable body of jurisprudence analyzing fundamental error in jury charges. Recent cases illustrate that the court is divided on the issue of how to properly analyze fundamental error cases. See e.g., Gordon v. State, — S.W.2d - No. 213-88 (Tex.Crim.App., Sept. 19, 1984) (not yet reported); Hill and Evans, supra; Williams v. State, 622 S.W.2d 95 (Tex.Crim.App.1981). See also McCormick, Convery & Ramirez, Fundamental Defect in Appellate Review of Error in the Texas Jury Charge, 15 St. Mary’s L.J. 827 (1984). At this juncture, however, the majority of the court has dictated that reviewing courts examine the application paragraph and not the charge as a whole, to determine whether an “essential element” has been omitted rendering the charge fundamentally defective. Gordon v. State, supra. See also Lewis v. State, 656 S.W.2d 472, 474 (Tex.Crim.App.1983); Escort v. State, 621 S.W.2d 608, 609 (Tex.Crim.App.1981); Thomas v. State, 587 S.W.2d 707, 708 (Tex.Crim.App.1979); Jones v. State, 576 S.W.2d 393, 394 (Tex.Crim.App.1979); Bradley v. State, 560 S.W.2d 650, 652 (Tex.Crim.App.1978); Harris v. State, 522 S.W.2d 199, 202 (Tex.Crim.App.1975).

In Woods v. State, 653 S.W.2d 1 (Tex.Crim.App.1982), the Court of Criminal Appeals adopted a novel approach for analyzing allegedly fundamentally defective aggravated robbery charges. The Court overruled its decisions in Evans and Hill and adopted Judge Clinton’s dissenting opinion in Hill. There, Judge Clinton concluded that a taking is always “without the owner’s effective consent” when it is alleged and proven that the owner was threatened or placed in fear of imminent bodily injury. Hill, 640 S.W.2d at 885 (Clinton, J., dissenting). Judge Clinton concluded that there was no defect, fundamental or otherwise, in the aggravated robbery charge presented. Id.

The Woods decision, however, must be contrasted with the court’s earlier decision in Carpenter v. State, 551 S.W.2d 724 (Tex.Crim.App.1977). In that case, the court reversed an aggravated kidnapping conviction on the ground that the indictment was fundamentally defective. The court held:

Although the indictment does allege that appellant restrained the complainant by secreting and holding her in a place where she was not likely to be found, it fails to allege an essential element of abduction — that appellant intended to prevent the liberation of the complainant. By omitting this element, the State has failed to allege the offense of aggravated kidnapping.

Id. at 726 (emphasis added). The Carpenter court also noted that the Penal Code makes abduction felonious conduct, while restraint is generally condemned a misdemeanor by the false imprisonment statute. Id. at 725.

We must, therefore, determine whether the logic of the Woods decision controls the disposition of this case and impliedly overrules Carpenter. To do so, we are required to analyze the applicable statutory provisions and the language contained in the application paragraph of the charge.

“Restraint” means restriction of a person’s movement without his consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. Tex.Penal Code Ann. sec. 20.01(1) (Vernon 1974). “Abduction” is accomplished either by “restraining” a person and secreting or holding him where he is not likely to be found or by “restraining” a person and using or threatening to use deadly force. Tex.Penal Code Ann. secs. 20.01(2)(A) and (B) (Vernon 1974). It is inconceivable that one could “restrain” another, by secreting or holding him in a place where he was not likely to be found or by using or threatening to use deadly force, without an intent to prevent the liberation of that person. Cf. Carpenter, 551 S.W.2d at 727 (Douglas, J., dissenting). We conclude that it was not fundamental error to omit the phrase “with intent to prevent liberation” from the application paragraph since the charge required proof of “restraint” by secreting or holding the complainant in a place where she was not likely to be found.

Appellant’s second ground of error is overruled.

Appellant argues in his first ground of error that the cumulation order is void for lack of specificity. The cumulation orders, included in both the aggravated kidnapping and robbery judgments, are identical and read as follows:

The court ordered that this Sentence is to begin when the Sentence in cause number 806978 in the 185th District Court, entitled, THE STATE OF TEXAS VS. DAVID PAUL MCINTOSH, has ceased to be operative.

It is settled law that cumulation orders must be specific enough to guide corrections officials in executing sentences. Ex parte Lewis, 414 S.W.2d 682, 683 (Tex.Crim.App.1967). The court in Ward v. State, 523 S.W.2d 681 (Tex.Crim.App.1975), recommended that the following information be contained in a cumulation order:

(1) The trial court number of the prior conviction;
(2) the correct name of the court where the prior conviction was taken;
(3) the date of the prior conviction;
(4) the term of years of the prior conviction, and

(5) the nature of the prior conviction. Ward, 523 S.W.2d at 683.

The cumulation orders here merely set out the first two recommended pieces of information: the cause number and the court of conviction. They also state the name used in appellant’s prior conviction. Cumulation orders containing only cause numbers and courts, however, have historically been upheld by Texas courts. See Ex parte McClain, 161 Tex.Cr.R. 400, 278 S.W.2d 140 (1955); Ex parte Bell, 160 Tex.Cr.R. 490, 272 S.W.2d 530 (1954); Ex parte Collier, 156 Tex.Cr.R. 377, 243 S.W.2d 177 (1951).

Appellant next contends that the cu-mulation order is void because it conflicts with a recitation in the judgment stating that the sentence is to begin on June 20, 1983. A review of the record pertinent to the sentence shows that the recitation that the sentence was to begin on June 20, 1983 is a clerical error. Immediately following the jury’s verdict on punishment, the court sentenced the appellant to not less than 5 nor more than 37 years imprisonment. The court then specifically ordered that the sentence pronounced run concurrently with a robbery conviction tried simultaneously with the kidnapping case. Immediately thereafter, and during the same hearing, the court granted the state’s motion to require appellant to serve the kidnapping sentence after serving the sentence assessed against appellant in cause number 306,978 in the 185th District Court. The court never ordered that the sentence would begin on June 20,1983, nor was that possibility even mentioned by the court or lawyers.

Appellant’s first ground of error is overruled.

Appellant next complains that the trial court committed reversible error by denying appellant’s requested jury instruction to limit the jury’s consideration of testimony regarding allegedly “extraneous offenses.”

The complained of testimony was elicited from Warden Howard Ray Mitchell. Warden Mitchell testified on direct examination that he had care, custody, and control of appellant, a “convicted felon,” at the Central Unit of the Texas Department of Corrections. Warden Mitchell further testified that TDC records revealed that on June 19, 1983, appellant was no longer in the Central Unit. Warden Mitchell personally went to Pasadena, Texas, to retrieve appellant after his escape.

Counsel for appellant made the following objection to the charge:

[W]e would once again reurge ... a limiting instruction as to the ... jury’s use of the element of escape and that that limiting instruction ... be limited to their ... to aiding the jury in their deliberation on aggravated kidnapping and thereby insure that the jury is instructed that they are not to consider it for any other purpose so that the Defendant would not be ... unduly prejudiced by the Court’s description of another offense that he is not charged with in this County.

The indictment in this cause alleged that appellant restrained the complainant, with intent to prevent her liberation, by secreting and holding her in a place she was not likely to be found “and with intent to facilitate flight after the attempt and commission of the felony of escape.”

An extraneous offense is any act of misconduct, whether resulting in prosecution or not, which is not shown in the charging paper, and which is shown to have been committed by the accused. Gomez v. State, 626 S.W.2d 113, 114 (Tex.App. — Corpus Christi 1981, pet. ref’d). By definition, extraneous offenses are “extra, beyond or foreign to the offense for which the party is on trial.” Ridinger v. State, 146 Tex.Cr.R. 286, 174 S.W.2d 319, 320 (1943).

Appellant’s incarceration and subsequent escape related directly to the offense of aggravated kidnapping. Thus, no limiting instruction was necessary. See Arivette v. State, 513 S.W.2d 857, 864 (Tex.Crim.App.1974).

Appellant’s third ground of error is overruled.

Appellant alleges in his last ground of error that the trial court erred in denying his motion to withdraw enhancement allegations from the jury’s consideration. Appellant argues that the motion should have been granted because he received ineffective assistance of counsel in the case referred to in the enhancement paragraph of the indictment.

Appellant cites no authority, nor can we find any, holding that a prior judgment may be collaterally attacked on the ground of ineffective assistance of counsel in motions challenging enhancement allegations in subsequent suits. Clearly, the proper procedure for collaterally attacking a prior judgment on ineffective assistance of counsel grounds is through writ of habe-as corpus. See Ex parte Duffy, 607 S.W.2d 507, 513 (Tex.Crim.App.1980).

Appellant's fourth ground of error is overruled.

Affirmed.

HOYT, Justice,

dissenting opinion

I respectfully disagree with the majority regarding their holding on appellant’s second ground of error which I believe is dispositive in this case. The reasoning and holding in Carpenter v. State, 551 S.W.2d 724 (Tex.Crim.App.1977), and Gordon v. State, 689 S.W.2d 434 (Tex.Crim.App., 1984), are still the law.

An alleged fundamentally defective charge requires proof of a two-pronged nature: first, the omission of an “essential element,” and second, the omission of that element from the application paragraph. Gordon, supra. In Carpenter, the court addressed the identical question and concluded that the phrase, “with intent to prevent liberation,” was not only an “essential element,” but also, its omission was fundamental error. A jury cannot be allowed to infer that the appellant intended to prevent liberation because that element must be proved “beyond a reasonable doubt.” Appellant’s second ground of error should be sustained, and the judgment reversed.


author: ASHWORTH, Justice.

text:
    Troy Vonroe PRESLEY, Appellant, v. The STATE of Texas, State.
    No. 2-83-432-CR.
    Court of Appeals of Texas, Fort Worth.
    March 21, 1985.

      James M. Stanley, Fort Worth, for appellant.
    John D. Nation, Asst. Dist. Atty., Dallas, for the State.
    Before FENDER, C.J., and ASHWORTH and BURDOCK, JJ.
   OPINION

ASHWORTH, Justice.

A jury found appellant guilty of aggravated rape, Children and Minors, ch. 202, sec. 1, 1981 Tex.Gen.Laws 471, repealed by Act of June 19, 1983, ch. 977, sec. 12, 1983 Tex.Gen.Laws 5311, 5321, and the trial judge sentenced him to seventy-five years confinement in the Texas Department of Corrections.

Judgment affirmed.

Appellant presents five grounds of error. Ground of error one contends appellant’s motion to dismiss the indictment should have been granted because he was not granted a speedy trial.

Specifically, appellant contends that the State was not ready for trial within the statutory time period because 134 days after appellant’s arrest, the State re-indicted appellant for aggravated rape, which he asserts is a different offense.

Appellant was arrested on October 31, 1982, for the rape of an eleven-year-old girl on the same date. On December 13, 1982, an indictment was returned in Cause No. F-82-79999 charging rape of a child, a second degree felony. On December 17, 1982, the State announced ready for trial. Again, on January 10, 1983, the State announced ready. On March 14, 1983, another indictment was returned in Cause No. F-83-97990 charging aggravated rape, a first degree felony, and also contained an enhancement count. On March 17, 1983, the State filed an announcement of ready in F-83-97990. On August 15,1983, another indictment was returned in Cause No. F-83-96123 again charging aggravated rape and containing an enhancement count. On August 19, 1983, the State filed an announcement of ready in F-83-96123.

Appellant filed a motion to dismiss the indictment pursuant to TEX.CODE CRIM. PROC.ANN. art. 32A.02 (Vernon Pamp. 1966-1985). A hearing was held on such motion on August 26, 1983, and the motion was denied. All three indictments related to the same transaction and at the conclusion of the hearing on August 26, 1983, the trial judge announced that the motion to quash the cases other than F-83-96123 was granted.

Article 32A.02 states in pertinent part that the court shall set aside an indictment if the State is not ready for trial within 120 days of the commencement of a criminal action if the defendant is accused of a felony. In this case the criminal action commenced upon the arrest of appellant on October 31, 1982. See Lee v. State, 641 S.W.2d 533, 535 (Tex.Crim.App.1982). The article further provides delays resulting from continuances granted with the consent of the defendant or his counsel shall be excluded, as well as reasonable delays justified by exceptional circumstances. Id.

At the hearing, appellant introduced into evidence the files of the Dallas County District Clerk for the three indictments listed above. The attorney for the State testified that after the announcement of ready on December 17, 1982, it took two to three weeks to obtain an F.B.I. “rapsheet.” There were discussions with appellant’s attorney during about a one-month period concerning the possibility of a polygraph test. It took over a month to get penitentiary packets from North Carolina after the “rapsheet” was received. The second indictment was submitted to the Grand Jury on February 25, 1983, and reported out on March 14, 1983. The docket sheet for Cause No. F-82-79999 shows resettings by agreement from January 3, 1983, to May 16, 1983; resettings from May 10, 1983, to July 25, 1983, do not reflect if by agreement; resettings from July 25, 1983, to August 29, 1983, are shown to be by agreement. The transcript contains a number of agreements for continuance signed by the attorneys for the State and appellant.

The State timely filed an announcement of ready on the original indictment which alleged rape of a child, a second degree felony. Appellant was subsequently re-indicted for the first degree felony of aggravated rape of a child, and an enhancement allegation was added. At the time of the offense, TEX.PENAL CODE ANN. sec. 21.09 (Vernon 1974) provided that a person commits the offense of rape of a child if he has sexual intercourse with a female not his wife and she is younger than seventeen years. See ch. 342, see. 8, 1975 Tex.Gen. Laws 912, 914, repealed by Act of June 19, 1983, ch. 977, see. 12, 1983 Tex.Gen.Laws, 5311, 5321. Additionally, TEX.PENAL CODE ANN. sec. 21.03 (Vernon 1974) provided that a person commits the offense of aggravated rape if he commits rape of a child as defined in sec. 21.09, and the victim is younger than fourteen years. See Children and Minors, ch. 202, sec. 1, 1981 Tex. Gen.Laws 471 (repealed 1983). It is undisputed in the instant case that at the time of the offense, the victim was younger than 14 years. The issue before us is whether the State’s announcement of ready on the first indictment carried forward and constituted an announcement of ready under the third indictment, Cause No. F-83-96123.

Our research reveals that the Texas Court of Criminal Appeals has granted motions for rehearing in two cases that originally resulted in that Court issuing seemingly inconsistent opinions regarding the question of when the State’s announcement of ready carries forward to subsequent indictments. See Carr v. State, No. 337-83 (Tex.Crim.App., Sept. 9, 1984) (reh’g granted) (not yet reported); Denson v. State, No. 63,428 (Tex.Crim.App., July 7, 1982) (reh’g granted) (not yet reported).

Denson dealt with a situation wherein the defendant was first indicted for murder and later re-indicted for aggravated robbery, both offenses arising out of this transaction. Id. at p. 1 (slip opinion). The State’s announcement of ready on the murder charge was held to apply to the aggravated robbery case, with the court opining:

Since the Speedy Trial Act takes into account and treats together all offenses arising in the same transaction, announcements of ready or continuances granted concerning one offense will apply to another offense when both offenses arose out of the same transaction. There is no dispute that the offenses of robbery and murder here arise out of the same transaction. The trial court did not err in overruling appellant’s motion to dismiss the indictment.

Id. at p. 3 (slip opinion).

The Court of Criminal Appeals revisited this issue in Carr, wherein the defendant was initially indicted for theft and later re-indicted for burglary, both offenses arising out of the same transaction. Carr at p. 1 (slip opinion). The Court reached a conclusion contrary to Denson holding:

There is a distinction between successive indictments for the same offense and a subsequent indictment for a different offense. As we held in Ward [Ward v. State, 659 S.W.2d 643 (Tex.Crim.App.1983) ], Paris [Paris v. State, 668 S.W.2d 411 (Tex.Crim.App.1984)], and Rosebury [Rosebury v. State, 659 S.W.2d 655 (Tex.Crim.App.1983)], supra, when the latter indictment alleges the same offense, or where the facts show that only a single offense has been committed, the State’s announcement of ready on the earlier indictment, or the defendant’s waiver of speedy trial on the earlier indictment, will be effective. Conversely, when the subsequent indictment alleges a primary offense that is different from the one alleged in the earlier charging instrument, and the facts show that both offenses were in fact committed in one transaction, we hold that the State’s timely announcement of ready on one offense does not constitute an announcement of ready on the second, different offense arising out of the same transaction. [Emphasis added.]

Id. at p. 5 (slip opinion).

Given this dichotomy of case law regarding when the State’s announcement of ready carries forward under the Speedy Trial Act, we note that it appears to have been established by the Court of Criminal Appeals that the critical feature for purposes of determining whether an act by either party on the first indictment should carry over to any succeeding indictments is whether the indictments “are subject to the same proof”. See Perez v. State, 678 S.W.2d 85, 87 n. 2 (Tex.Crim.App.1984) (Clinton, J. dissenting) (citing Richardson v. State, 629 S.W.2d 164 (Tex.App. — Dallas 1982, pet. ref’d). In Richardson (the reasoning of which was approved in the majority opinion in Perez, 678 S.W.2d at 86), the Court compared the two indictments, stating:

Although both [the original cause number] and the instant case have the same complaining witness, they are different offenses subject to different proof and therefore are not the “same case” even though they are from the same transaction. Consequently, the announcements of ready in one case will not apply to the other case. [Emphasis added.]

Richardson, 629 S.W.2d at 165.

Although in the instant case the appellant was alleged to have violated two separate Penal Code sections, the facts underlying the two violations are identical: both violations involved the commission of the same prohibited acts against the same complaining witness during the course of one transaction. The only difference between the requisites of the Penal Code sections is that in order for the State to convict a defendant for the offense of rape of a child, the victim must have been under the age of seventeen years, whereas the aggravated rape statute required the child to have been under the age of fourteen years. Obviously, at the time of the offense the victim was a certain fixed age (under the age of fourteen); therefore, the subsequent indictments did not enlarge upon the State’s burden of proof or curtail any of appellant’s available defenses. The State’s preparation for trial was in no way affected by the substitution of the greater offense in the subsequent indictment. We hold that under the particular facts of this case, there was only one case based upon a single offense arising out of one transaction. Accordingly, the State’s announcement of ready from the earlier indictment constituted an announcement of ready on the second and third indictments arising out of the same transaction.

When the State announces ready during the statutory period, the burden shifts to the defendant to rebut the prima facie showing by producing evidence of the State’s unpreparedness for trial. Smith v. State, 659 S.W.2d 828, 830 (Tex.Crim.App.1983). This the appellant failed to do. There is no evidence that the State delayed the trial of the case other than those delays occasioned by time involved in obtaining the “rapsheet”, penitentiary packets, re-indictment by the Grand Jury, discussions concerning a polygraph test, and agreed continuances. Appellant’s first ground of error is overruled.

Appellant’s second ground of error asserts the trial court erred in permitting the prosecutor to give testimony concerning a polygraph test at the hearing on appellant’s speedy trial motion because the trial court would later assess punishment and such testimony is clearly inadmissible during the punishment phase of trial.

This matter was touched on in discussion of appellant’s first ground of error. During the pretrial hearing, the prosecutor was in the process of explaining the delays in the trial and stated defense counsel wanted to have the defendant take a polygraph examination. Appellant’s attorney objected to such testimony as being inadmissible and the trial court stated that while the objection was overruled, the results of a polygraph test, if one was given, would not be gone into. The prosecutor then continued to state that talks concerning a polygraph examination extended over a period for about a month. There was no testimony whether an examination was performed. The matter of the time of the polygraph negotiations was the subject of two later questions by appellant’s attorney in cross examination of the prosecutor, but the record fails to show any other testimony, objection, or ruling concerning a polygraph examination.

It is apparent no error was committed by the trial judge in permitting the prosecutor to testify as to the time involved in negotiating with appellant’s counsel concerning a polygraph examination. In allowing the testimony, the trial judge stated the results, if one was taken, would not be admitted. It is evident the testimony was permitted only for the purpose of explaining delay in the trial. Appellant’s second ground of error is overruled.

Appellant’s third ground alleges the trial judge erred in making statements to the jury panel on voir dire which might make them reluctant to express their true feelings in responding to later questions by the court and the attorneys.

The trial court made a comprehensive explanation to the jury panel requiring some forty-one pages of the statement of facts. This explanation in effect included a statement that if a juror wanted to get off the case, he could lie and say he could not give a sentence of five years or could not give a sentence of life imprisonment. The particular statement which is the subject of the third ground is, “That’s the kind of person we don’t want on a jury, because he’s a liar. That’s how you can get off, if you want to.” While the voir dire examination of the jury panel by appellant’s attorney was not reported, the record shows the panel was fully examined as to whether the full range of punishment could be considered.

We hold there was no error on the part of the trial judge in making such explanatory statement; it was part of a wide ranging dissertation of the procedures which would probably be observed in the trial. There certainly has been no showing of how the appellant was harmed by such statement. Additionally, there was no objection to the statement of the trial judge and complaint is made for the first time on appeal. In the absence of an objection, nothing is preserved for review on appeal. Nelson v. State, 607 S.W.2d 554, 555 (Tex.Crim.App.1980). Appellant’s third ground of error is overruled.

The fourth ground of error alleges the appellant was not afforded an opportunity to personally enter his plea of not guilty in front of the jury.

The record reflects the following:

THE COURT: Mr. District Attorney, present the indictment to the Jury.
MR. CHAPMAN: Members of the Jury, my name is Kevin Chapman. I’m the other Assistant District Attorney in this case. It’s my duty at this time to read to you the true bill of indictment returned by the Dallas County Grand Jury in this case. It reads as follows ....
(Whereupon, the indictment was presented to the Jury by the reading of same by Mr. Chapman.)
THE COURT: Counsel for the defense, how does the Defendant plead to the indictment?
MR. STANLEY: Not guilty, Your Honor.
THE COURT: Let all the witnesses who intend to testify in this case come around and be sworn. Will the Rule of Evidence be invoked?
MR. STANLEY: Yes.

' Again, no objection was made at time of trial and nothing is presented for review. Nelson, 607 S.W.2d at 255. However, in the interest of justice, we will address the ground presented. Appellant contends TEX.CODE CRIM.PROC.ANN. art. 26.11 (Vernon 1966) affords him the right to personally enter his plea. Such article provides:

The name of the accused having been called, if no suggestion, such as is spoken of in the four preceding Articles, be made, or being made is disposed of as before directed, the indictment shall be read, and the defendant asked whether he is guilty or not, as therein charged.

Id.

Article 26.11, cited by appellant, concerns itself with the arraignment of the accused, not the plea before the jury. In the instant case if art. 26.11 requires the plea be made by the defendant personally, it was complied with. The record reflects:

THE COURT: Mr. District Attorney, arraign the Defendant.-
(Whereupon, the Defendant was arraigned by the reading of the first paragraph of the indictment by Mr. Chapman in open Court.)
MR. CHAPMAN: "... that one Troy Vonroe Presley ...” Is that your name?
THE DEFENDANT: Yes, sir.
(Whereupon, the arraignment was continued by the reading of the remainder of the first paragraph of the indictment by Mr. Chapman in open Court.)
THE COURT: Troy Vonroe Presley, how do you plead to the indictment? guilty or not guilty?
THE DEFENDANT: Not guilty.

TEX.CODE CRIM.PROC.ANN. art. 36.-01 (Vernon 1981) provides for the defendant’s plea after a jury has been selected. Such article provides:

1. The indictment or information shall be read to the jury by the attorney prosecuting. ...
2. The special pleas, if any, shall be read by the defendant’s counsel, and if the plea of not guilty is also relied upon, it shall also be stated.

Id.

Neither party has cited any authority requiring or not requiring the plea in the presence of the jury be made by the defendant personally, and we are unable to find such authority. A literal reading of paragraph 2 of art. 36.01 would indicate that the plea should be stated by defendant’s counsel. Under circumstances such as these, in the absence of any objection, the plea may be stated by the defendant’s counsel. Appellant’s fourth ground of error is overruled.

In his fifth ground of error, appellant contends the State did not prove a prima facie case of rape and his motion for instructed verdict should have been approved.

We must briefly review the evidence to address appellant’s fifth ground. The complaining witness, S.H., testified she had just turned eleven years of age on October 31, 1982. She had gone to church that day and when she returned to her home she changed clothes, putting on a body suit and cape. She got on her bicycle to visit a friend in the neighborhood. Appellant, who- lived three houses away from S.H., called her and asked her to come in his house. She did so and closed the door at his .request. He told her to sit on the couch, and he sat beside her. He kissed her on the lips and told her to lie down. She testified she laid down because she was scared that he would hurt her. He then unzipped his pants, told her to pull her body suit to one side, and penetrated her vagina with his penis until he ejaculated. He then got a towel, wiped her off, gave her two dollars, told her not to tell anyone or he would hurt her, and wanted to get her in bed anytime his wife was not there.

S.H. returned to her home and told her stepmother what had happened. The police were called, and S.H. was taken to a hospital and examined by a doctor. Dr. Ali Toofanian testified he worked as a medical doctor at Parkland Hospital and conducted a rape examination on S.H. on October 31, 1982. The outside and inside of her sex organ was swollen and irritated which was a sign that sex had occurred. He found sperm on both the outside and inside of the vagina. The stepmother testified appellant’s house was in Dallas County, Texas. We hold this testimony was more than sufficient to justify the jury finding that appellant penetrated the vagina of an eleven-year-old girl. Appellant’s fifth ground of error is overruled.

Judgment affirmed.