author: ONION, Presiding Judge. TEAGUE, Judge,

text:
    Rufino Rodriguez GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 310-84.
    Court of Criminal Appeals of Texas.
    Jan. 23, 1985.
    Gary L. Kilgore, Austin, for appellant.
    Jeffrey L. Van Horn, Dist. Atty., Todd A. Blomerth, Asst. Dist. Atty., Lockhart, Robert Huttash, State’s Atty., and Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This is an appeal from a conviction for delivery of marihuana of more than one-fourth ounce. Punishment, enhanced by one prior felony conviction alleged and proved, was assessed by the jury at 11 years in the Department of Corrections.

Appellant perfected an appeal to the Austin Court of Appeals. The cause was transferred to the Beaumont Court of Appeals by order of the Supreme Court of Texas.

The Beaumont Court of Appeals sustained appellant’s first ground of error holding the trial court erred in overruling his motion for mistrial based on the prosecution’s introduction of an arrest of the appellant which did not result in a final conviction. The conviction was reversed. Gonzales v. State (Tex.App. No. 09-83-109 CR—Beaumont 1984).

The State in its petition for discretionary review urged that the error, if any, was not reversible error because the court sustained the objection to the question, the question was not answered, and the jury was instructed to disregard the question. We granted the State’s petition to determine the correctness of the decision of the Court of Appeals.

Appellant’s first ground of error states: “The Trial Court erred in denying Appellant’s Motion for Mistrial as a result of the prosecution’s introduction of arrests of the appellant which did not result in final conviction.” (Emphasis supplied.)

The mistrial motion was made at the penalty stage of the trial. At the commencement of that phase of the trial the State waived and abandoned the prior marihuana possession conviction in Guadalupe County alleged in the second paragraph of the indictment for the enhancement of punishment and proceeded on the third paragraph of the indictment alleging a prior 1977 marihuana possession conviction in Gonzales County for enhancement of punishment. Immediately thereafter the parties stipulated appellant was the same person convicted in the Gonzales County case and also the same person convicted in the Guadalupe County case. The pen packets from said convictions were introduced without objection to support the third paragraph of the indictment and to prove appellant’s “prior criminal record” under Article 37.07, Y.A.C.C.P.

Subsequently appellant called his wife as a witness. She testified as to her 12-year marriage, the three children, that appellant was a good father, a good provider, etc., but acknowledged he had been to the penitentiary for marihuana possession. On cross-examination Mrs. Gonzales was asked about appellant’s convictions in Guadalupe and Gonzales Counties. She wasn’t sure, guessed that whatever was on “the paper” was correct.

On re-direct appellant’s counsel inquired:

“Q. Mrs. Gonzales, during the 12 years you’ve been married, has Rufino been, to your knowledge, ever charged with anything other than the case that we’ve tried today, with just those two possessions of marijuana with — I’m sorry. Let me rephrase it. Has he ever been convicted of anything other than those two possessions of marijuana?
“A. That’s all I know about.” (Emphasis supplied.)

On re-cross-examination the prosecutor asked if she hadn’t testified on direct examination she was only aware of the prior offense for which appellant went to the penitentiary and “this one” as the only offenses with which he had been charged. Upon objection “That wasn’t the answer to my specific question,” the prosecutor agreed to rephrase the question. The record then reflects:

“Q. Isn’t it a fact that he was charged on the 4th day of March of 1978 with delivering to Ronald Green a quantity of marijuana of over one fourth of an ounce?
“A. That he was what, convicted?”

The jury was then removed at appellant’s request. His counsel stated that he had rephrased his question on re-direct, and asked about convictions, not charges. He objected to the State’s question as interjecting an extraneous offense for which there was no conviction. The prosecutor responded he felt sure appellant’s counsel had asked about charges. The court reporter read his notes as to the question asked on re-direct examination. The prosecutor complained about the manner in which the question had been asked on re-direct, but re-withdrew his question on recross which had not been answered. The appellant asked for a “limiting instruction” and moved for a mistrial. The court agreed to give the “limiting instruction,” but denied the mistrial motion. When the jury returned, the court instructed the jurors to disregard the last question of the prosecutor and the answer, if any, and not to consider them for any purpose. Mrs. Gonzales was not interrogated further.

It is here observed that at no time did appellant call the court’s attention to the order granting his motion in limine, and object to the question on the basis of a violation thereof, nor did he use it as the basis for his motion for a mistrial.

The question which presents itself is whether the attempt here by the State to introduce evidence of a “charge” without a showing of a final conviction could be cured by the court’s instruction to the jury to disregard. The State concedes the question was improper, but calls attention to the circumstances under which it was asked and withdrawn without being answered.

In White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969), this Court wrote:

“An error in asking an improper question or in admitting improper testimony may be generally cured or rendered harmless by a withdrawal of such testimony and an instruction to disregard the same except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Wheeler v. State, Tex.Cr.App., 413 S.W.2d 705, 707; 5 Tex.Jur.2d, Sec. 437; McCormick and Ray, Texas Law of Evidence, Vol. 1, Sec. 29.”

See also Carey v. State, 537 S.W.2d 757, 759 (Tex.Cr.App.1976); Lovilotte v. State, 550 S.W.2d 75 (Tex.Cr.App.1977); Maxwell v. State, 595 S.W.2d 126 (Tex.Cr.App.1980); Yarbrough v. State, 617 S.W.2d 221 (Tex.Cr.App.1981); Lopez v. State, 630 S.W.2d 936 (Tex.Cr.App.1982).

In determining whether a jury instruction is sufficient to cure the error, the facts of each particular case must be noted. See Moffett v. State, 555 S.W.2d 437 (Tex.Cr.App.1977). As earlier observed, the improper question was never answered, the question was withdrawn and the jury was instructed to disregard. Did the mere asking of the question constitute reversible error? Courts rarely reverse a conviction of a crime solely because an improper question was asked. To cause a reversal the question must be obviously harmful to the defendant. Pearce v. State, 513 S.W.2d 539, 543 (Tex.Cr.App.1974). The question was asked at the penalty stage of the trial under the circumstances described. The jury had already found the appellant guilty of the offense charged and the evidence was stipulated he had been twice previously convicted of two similar felonies. If the unanswered question itself was harmful, it had to be harmful on the issue of punishment. The maximum punishment for the offense charged with one prior felony conviction for enhancement of punishment would have been 20 years’ imprisonment and a possible fine of $10,000.00. The punishment assessed by the jury, however, was 11 years’ imprisonment for his third-degree offense of the same nature. We cannot conclude that, given the circumstances, the question was of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors by an instruction to disregard. The trial court did not err in overruling the motion for mistrial.

In reversing, the Court of Appeals recognized the rule stated in White, but felt the violation of the order granting the motion in limine called for a different result. The court said:

“We recognize the rule directed in these cases, as indeed we must; nevertheless, here we have a situation where the judge before the trial directed that such a question not be asked before a ruling from the bench, a ruling which the State agreed to. If such rulings are to be considered ‘harmless’ when violated as long as the judge properly instructs the jury, why should an appellant even request one? Our answer is that the same in this case was harmful, and we, therefore, sustain this ground of error and reverse and remand this case.”

No authority is cited for this holding.

The appellant filed a pre-trial motion in limine requesting, inter alia, that the State be restrained from mentioning his prior arrests which had not resulted in a conviction with which he could be impeached if he testified.

Prior to voir dire examination appellant orally asked that the State not be allowed to go into certain “matters” noted in his motion in limine until there was a bench conference to determine their admissibility because the “matters” were so prejudicial. The State had no objection if the only requirement was a bench conference and a ruling before it offered the evidence. The court granted the motion in limine with that understanding.

At the time of the complained of question the appellant did not object on the basis of a violation of the order granting the motion in limine nor was this the basis for his mistrial motion. It would not appear appellant preserved any error on this basis for appeal. In fact, appellant’s stated ground of error concerning the overruling of his motion for mistrial does not mention the ruling on the motion in limine.

What the Court of Appeals overlooked is that this Court has declared many times that the granting of a motion in limine will not preserve error. For error to be preserved with regard to the subject matter of the motion in limine it is absolutely necessary that an objection be made at the time when the subject is raised during the trial. Thomas v. State, 477 S.W.2d 881 (Tex.Cr.App.1972), and cases there cited; Brazzell v. State, 481 S.W.2d 130 (Tex.Cr.App.1972); Simpson v. State, 507 S.W.2d 530 (Tex.Cr.App.1974); Whatley v. State, 488 S.W.2d 422 (Tex.Cr.App.1973); Harrington v. State, 547 S.W.2d 616 (Tex.Cr.App.1977); Sheppard v. State, 545 S.W.2d 816 (Tex.Cr.App.1977); Armitage v. State, 637 S.W.2d 936, 938 (Tex.Cr.App.1982).

In Brazzell v. State, supra, this Court wrote:

“The appellant is here attempting to rely upon a motion in limine to preserve error to the admission of testimony which he contends was not admissible. Generally, a motion in limine will not preserve error to the admission of inadmissible evidence. The violation of a motion in limine may entitle a party to relief, but any remedies available with regard to such a violation are with the trial court. If its order has been violated, the trial court may apply the sanctions of contempt or take other appropriate action. But for error to be preserved on appeal with regard to the admission of inadmissible evidence objection thereto should be made at the time the evidence is offered.”

In Romo v. State, 577 S.W.2d 251 (Tex.Cr.App.1979), it was written:

“However, reliance on a motion in li-mine will not preserve error. A defendant must object on the proper grounds when the evidence is offered at trial. Harrington v. State, 547 S.W.2d 616 (Tex.Cr.App.1977); Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976). The reason for this rule is that a judge is often not in a position to decide on the admissibility of evidence prior to the beginning of trial. * * * Counsel could ask in the motion in limine that before a suspect area is entered into at trial, the opposing counsel be required to approach the bench and inform the court so that the jury may be excluded. By that procedure the evidence may be challenged at the proper time without risk of prejudicing the jury. Whatever the procedure chosen, defense counsel must object before the evidence is admitted during trial in order to properly call the court’s attention to the matter and preserve the error for appeal.”

In the instant case appellant did object at trial and did not rely on the granting of the motion in limine. The unanswered question was withdrawn, the jury was instructed to disregard, but the mistrial motion was denied. While recognizing the correct rule to be applied, the Court of Appeals never reached the issue of whether the harm, if any, which resulted from the mere asking of the question could have been cured by the jury instruction. Instead, it held that when the prosecutor violated the order granting the motion in limine harm resulted as a matter of law. In effect it held that “all the king’s horses and all the king’s men could not make things right again.” In this the Court of Appeals fell into error.

The judgment of the Court of Appeals is reversed and the cause is remanded to that court for determination of appellant’s other grounds of error.

CLINTON, J., concurs.

TEAGUE, Judge,

dissenting.

The issue that is before this Court is not whether one of the prosecuting attorneys in this cause committed error by asking an improper question; the issue, instead, is whether the error became harmless by the trial court’s instruction to the jury. Try as I might, I am unable to conclude that there is not a reasonable possibility that the error in asking the improper question did not contribute to the punishment that was assessed. I, therefore, respectfully dissent.

Appellant’s punishment, enhanced by one prior felony conviction, was assessed by the jury at 11 years’ confinement in the Department of Corrections. The range of punishment, as to the possible time in the penitentiary that could have been assessed, was not less than 2 years nor more than 20 years.

The record reflects that a punishment hearing was conducted after the jury found appellant guilty of delivering to another person more than one-fourth of an ounce of marihuana. The State proved up at the punishment hearing two prior felony convictions. However, only one of the convictions was used to enhance appellant’s punishment. During the punishment hearing, Mr. Kilgore, the attorney for appellant, asked the appellant’s wife the following question: “Q: Mrs. Gonzales, during the 12 years you’ve been married, has Rufino been, to your knowledge, ever charged with anything other than the case that we’ve tried today, with just those two possessions of marijuana [sic] with — I’m sorry. Let me rephrase it. Has he ever been convicted of anything other than those two possessions of marijuana [sic].” The witness answered: “That’s all I know about.”

Thereafter, on cross-examination, Mr. Blomerth, one of the prosecuting attorneys, asked the witness the following question, and she responded with the following answer: “Q: Isn’t it a fact that he was charged on the 4th day of March of 1978 with delivering to Ronald Green a quantity of marijuana [sic] of over one fourth of an ounce? A: That he was what, convicted?”

Mr. Kilgore then objected and a hearing outside the presence of the jury was conducted on Mr. Kilgore’s motion for mistrial.

The record of the hearing reveals that not all agreed upon the wording of the question. Mr. Kilgore stated: “In my present frame of mind, I had a slight slip of tongue”, “That word, (charged), may have come out of my mouth, but I immediately corrected it ...” However, Mr. Van Horn, the other prosecuting attorney, stated to the court that he thought that the question was simply, “Are you aware of him ever being charged?” The court reporter then ascertained that the question was as we have set it out above, which does show what might perhaps be considered “a slip of the tongue.” Mr. Van Horn then stated, “I thought I specifically heard the — maybe I didn’t hear him rephrase it or maybe there was more. I’m not sure, Your Honor, but I certainly thought there was a question asked relating to charges and not convictions ...” Thereafter, Mr. Blomerth responded: “The defense attorney is attempting in this case — he asked a question that both Mr. Van Horn and I clearly heard as being, has he ever been charged with such an offense, not convicted, and in the middle of his own sentence rephrases it in such a manner that perhaps he did confuse us ... If the record reflects what has been said here, we will withdraw the question. I specifically — and I think Mr. Van Horn [sic] asked this question in good faith and we would withdraw the question at this time.”

The trial judge instructed the jury that they were not to consider the question or the answer, “for any purpose.” Mr. Blo-merth also stated the following in the presence of the jury: “The State withdraws the question, Your Honor, as well and passes the witness ...” The witness was not asked any further questions. Mr. Kil-gore’s motion for mistrial was denied.

It has long been the established rule in this State that, excepting capital murder cases, the defendant is to be tried and punished upon the merits of each case, and that proof of extraneous crimes or specific acts of misconduct by the defendant are generally not admissible evidence, such becoming admissible evidence under the most limited of exceptions and conditions. Viewing the matter from hindsight, there is no question but that Mr. Blomerth erred in asking the appellant’s wife the following question, “Isn’t it a fact that he, (the appellant), was charged on the 4th day of March of 1978 with delivering to Ronald Green a quantity of marijuana of over one fourth of an ounce?”

However, the issue is not whether Mr. Blomerth erred, because even the State concedes that his question was improper; the issue, instead, is whether there is a reasonable possibility that the error contributed to the jury’s decision to assess appellant 11 years’ confinement in the penitentiary. In light of this Court’s decision of Mounts v. State, 148 Tex.Cr.R. 149, 185 S.W.2d 731 (1945), which held that reversible error may occur solely because of an improper question, and the cases which have followed Mounts, supra, it would be quite easy to hold that the improper question was incurable. However, did the fact that the jury was made aware that appellant had been previously convicted of two prior felony offenses, and had served time in the penitentiary, and the trial court instructed the jury to disregard the question and answer, cure or cause the error to become harmless? Or, was the question so prejudicial and obviously hurtful as to preclude appellant a fair and impartial punishment hearing, which the law guaranteed him? The jury was permitted to assess punishment within the range of 2 to 20 years. They chose to assess punishment at 11 years’ confinement in the penitentiary. Is there a reasonable possibility that the improper question might have contributed to the jury’s decision to assess punishment at 11 years’ confinement in the penitentiary? Not without some difficulty, I am constrained to find that the error was incurable.

In Mounts, supra, the defendant was tried for murder. During cross-examination, the prosecuting attorney asked the defendant the following question, “On December 24, 1983, at Live Oak Cliff Boulevard at 9:15, I will ask you if you didn’t have an altercation and pistol-whip a victim?” Even though the trial judge intervened before an objection was made, stating, “Here. Here. Stop that. That’s improper,” this Court, nevertheless, held that the question, alone, constituted incurable error. “The question, as so framed, of and within itself, implied appellant’s guilt of the misconduct inquired about and amounted, therefore, to proof of a fact, by necessary implication damaging and hurtful to appellant, that the State was not authorized to prove.” (734). This Court also held, regarding the statements of the trial judge, “he did what he could but the harm to the appellant had been done.” (735).

In this instance, at a trial which occurred in 1981, appellant’s wife was asked, “Isn’t it a fact that he was charged on the 4th day of March of 1978 with delivering to Ronald Green a quantity of marijuana of over one fourth of an ounce?” I believe that the average juror would have believed that this implied appellant’s guilt of the misconduct inquired about and amounted, therefore, to proof of a fact, by necessary implication damaging- and hurtful to appellant. Under the facts and circumstances of this case, I am unable to state that, as to the punishment that was assessed, “all the king’s horses and all the king’s men can unring the bell, can forget the wound that was inflicted, or can forget the smell.” See Dunn v. United States, 307 F.2d 883, 886 (5th Cir.1962).

We, as judges on the highest appellate criminal court of this State, whose decisions are subject to review only by the Supreme Court of the United States, are, of course, concerned with guilt, innocence, and punishment in criminal cases; but of equal importance is the fact that we are commissioned by the citizens of Texas to make sure that persons who are accused of committing criminal wrongs against the State have received their constitutionally guaranteed right to a fair trial, which, of course, includes guilt as well as punishment.

Although I would be one of the first to agree that trials are rarely, if ever, perfect, I must state in this instance that I am unable to say that the error was curable and that there is not a reasonable possibility that such error might have affected the jury’s decision to assess appellant’s punishment at 11 years’ confinement in the penitentiary. Therefore, I am constrained to dissent.

MILLER, J., joins.

      . It appears that the prosecutor thought appellant had "opened the door” by his question on re-direct examination entitling the State to ask the question it did. See Orozco v. State, 164 Tex.Cr.R. 630, 301 S.W.2d 634 (1957); Heartfield v. State, 470 S.W.2d 895 (Tex.Cr.App.1971).

      . See also Waller v. State, 581 S.W.2d 483 (Tex.Cr.App.1979); Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978); Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976), cert. den. 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250; Sheppard v. State, 545 S.W.2d 816 (Tex.Cr.App.1977); Kirkpatrick v. State, 515 S.W.2d 289 (Tex.Cr.App.1974); Pearce v. State, 513 S.W.2d 539 (Tex.Cr.App.1974); Guerrero v. State, 507 S.W.2d 765 (Tex.Cr.App.1974); Ortiz v. State, 490 S.W.2d 594 (Tex.Cr.App.1973).

      . Brazzell and other cases must be read with understanding that the Court is talking about violation of an order granting a motion in li-mine, not the violation of the motion which may never have been acted upon.

      . Quoted from page 4 of the State’s Petition for Discretionary Review filed by the State’s Prosecuting Attorney.


source: Caselaw Access Project

author: TEAGUE, Judge,

license: Public Domain

text:
    James MATTOX, Appellant, v. The STATE of Texas, Appellee.
    No. 1229-84.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 6, 1985.
    Roy Q. Minton, Charles R. Burton, Austin, for appellant.
    Ronald Earle, Dist. Atty. and Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, Robert Huttash, State’s Atty., Austin, for the State.
   TEAGUE, Judge,

concurring.

But for what the majority of the voters of this State did on November 4, 1980, when they chose to vote against adopting H.J.R. No. 97, which was a proposed Constitutional amendment that would have permitted an interlocutory appeal to this Court from a trial court’s decision to overrule or deny an accused person’s pretrial motion to quash the charging instrument, I would not hesitate for one moment to vote to grant appellant’s petition for discretionary review, in order to review the trial court’s rulings that concern appellant’s motions to quash the charging instruments.

Nevertheless, the majority of the voters of Texas have spoken on the subject, and I do not believe that I should vote to overturn the decision that was made on November 4, 1980. Therefore, I agree with the majority that this Court should refuse to grant appellant’s petition for discretionary review.

Notwithstanding that I am in agreement with the majority’s decision to refuse appellant’s petition for discretionary review, I am also compelled to state that I am in agreement with what Justice Brady pointed out in the dissenting opinion that he filed in Mattox v. State, 683 S.W.2d 93 (Tex.App.—Austin 1984), namely, that it defies logic, and common sense that an accused person must first undergo the ordeal of a trial on the merits, and be convicted, before he can urge on appeal that the trial court erred in denying or overruling a pretrial motion to quash the charging instrument.

The present state of the law, that prevents an accused person from appealing to an intermediate appellate court or this Court the trial court’s decision to overrule or deny a motion to quash the charging instrument, is truly injudicious, when one considers the fact that this void in our law oftentimes causes what should be the final trial on the merits to become nothing more than a dress rehearsal for a second trial on the merits, if the final decision on appeal is that the charging instrument was subject to a motion to quash. This is judicial economy at its worst.

Perhaps, however, someday, the majority of the voters of Texas will see the error of what they did on November 4, 1980, and will be given another opportunity to vote on the equivalent of H.J.R. No. 97. Until that day comes, and until the vote is to permit an interlocutory appeal to an intermediate appellate court or this Court the trial court’s decision to overrule or deny a pretrial ruling on a motion .to quash the charging instrument, I believe that for the present time I must honor the decision that the majority of the voters of this State made on November 4, 1980.

Therefore, I reluctantly concur in the majority’s decision to refuse to grant appellant’s petition for discretionary review.


author: MeCORMICK, Judge.

text:
    George Raymond OLIVER, Appellant, v. The STATE of Texas, Appellee.
    No. 535-83.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 13, 1985.

      Bruce A. Martin, Iowa Park, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MeCORMICK, Judge.

We granted the State’s petition for discretionary review to review the Court of Appeals’ finding of unassigned fundamental error in the jury charge. Oliver v. State, 651 S.W.2d 384 (Tex.App.—Ft. Worth, 1983).

Appellant was charged in a two-count indictment with the offense of murder under both V.T.C.A., Penal Code, Section 19.-02(a)(1) and 19.02(a)(2):

“George Raymond Oliver ... did then and there intentionally and knowingly cause the death of an individual, Johnny Lloyd Hicks, by shooting the said Johnny Lloyd Hicks with a firearm.
Count II
“And it is further presented in and to said court that George Raymond Oliver on or about the 8th day of August, 1981, and anterior to the presentment of this indictment in the County of Wichita and State of Texas, did then and there intentionally and knowingly, intending to cause serious bodily injury to an individual, Johnny Lloyd Hicks, commit an act clearly dangerous to human life, to wit: shooting the said Johnny Lloyd Hicks with a firearm, thereby causing the death of the said Johnny Lloyd Hicks,

The application paragraph of the court’s charge reads as follows:

“If you find from the evidence beyond a reasonable doubt that on or about the 8th day of August, 1981, in the County of Wichita and the State of Texas, the Defendant, George Raymond Oliver, did intentionally or knowingly cause the death of an individual, Johnny Lloyd Hicks, by shooting the said Johnny Lloyd Hicks with a firearm; or if you find that the defendant intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of an individual, Johnny Lloyd Hicks, then you will find the Defendant guilty of murder as charged in the indictment. Unless you so find beyond a reasonable doubt, or if you. have a reasonable doubt thereof, you will acquit the Defendant of murder and proceed to consider the lesser included offense of involuntary manslaughter.”

The Court of Appeals found that the application paragraph of the court’s charge while properly applying the law of murder as defined in Section 19.02(a)(1) to the facts of the case totally failed to apply the law of murder as defined in Section 19.02(a)(2) to the facts of the case. The court reasoned that such an omission resulted in allowing the jury to convict appellant under a theory not charged in the indictment. Although not enunciated in the opinion, it appears from reading the indictment that the omitted language which the Court of Appeals deemed so vital was:

"... to wit: shooting the said Johnny Lloyd Hicks with a firearm....”

This Court has previously found fundamental error in the court’s charge for failure to properly apply the law to the facts only when there was a total absence of any attempt to apply the law to the facts of the particular case. Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975); Perez v. State, 537 S.W.2d 455 (Tex.Cr.App.1976); Williams v. State, 547 S.W.2d 18 (Tex.Cr.App.1977); Williams v. State, 622 S.W.2d 578 (Tex.Cr.App.1981). The Court reasoned that in those cases the jury was not instructed under what circumstances they could convict, or under what circumstances they could acquit. Thus, the error was calculated to injure the defendants’ rights and reversal was mandated under Article 36.19, V.A.C.C.P.

Those cases cited above are easily distinguishable from the instant case. In the instant case, there was not a complete absence of an attempt to apply the law to the specific facts. The first part of the application paragraph, applying the law of Section 19.02(a)(1) murder contained the language “by shooting the said Johnny Lloyd Hicks with a firearm.” Clearly, the jury could apply this factual language to the law of Section 19.02(a)(2) murder enunciated in the next line of the court’s charge. This conclusion is further supported by our review of the evidence adduced at trial. The only evidentiary theory relied on by the State was that the appellant shot the victim with a .22 caliber rifle. Thus, there could have been no misunderstanding as to the circumstances under which the jury was authorized to convict appellant. Sattiewhite v. State, 600 S.W.2d 277 (Tex.Cr.App.1980).

Additionally, the charge as given in fact contains each essential element of the offense of murder under V.T.C.A., Penal Code, Section 19.02(a)(2).

Section 19.02(a)(2) provides:

“(a) A person commits [murder] if he:
* * * * * *
(2)intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.”

Thus, the elements of the offense are:

(1) a person
(2) intends to cause serious bodily injury and
(3) commits an act clearly dangerous to human life
(4) that causes the death of
(5) an individual.

Since each element was required by the trial court to be found, there is no fundamental error.

The judgment of the Court of Appeals is reversed and the cause is remanded for consideration of the three grounds of error briefed by defense counsel on original appeal.

TEAGUE, J., dissents. See, Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982).


author: PER CURIAM.

text:
    Anthony Andrew AUGUST, Appellant, v. The STATE of Texas, Appellee.
    No. 482-84.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 13, 1985.

      Terrell William Proctor, Houston, for appellant.
    Jim Mapel, Dist. Atty. and Jim Turner, Asst. Dist. Atty., Angleton, Robert Hut-tash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appeal is taken from a conviction for the third degree felony offense of unlawful delivery of marihuana. Appellant was convicted in a trial before the court. Punishment was assessed at eight years.

Appellant’s conviction was reversed by the court of appeals after it was concluded that the State failed to comply with the Speedy Trial Act, Art. 32A.01 et seq., V.A. C.C.P. August v. State, 681 S.W.2d 636 (Tex.App.—Houston [14th] 1984). On October 24, 1984, this Court granted the State’s petition for discretionary review.

The State has now filed a motion to abate the appeal. Attached to the State’s motion is a certified copy of Appellant’s certificate of death. The certificate recites that Appellant died on December 10, 1983.

The death of an Appellant during the pendency of an appeal deprives this Court of jurisdiction. King v. State, 379 S.W.2d 907 (Tex.Cr.App.1964). Under such circumstances, the appropriate disposition is the abatement of the appeal. See Polhemus v. State, 659 S.W.2d 433 (Tex.Cr.App.1983). The State’s motion is granted.

The appeal is abated.


author: ONION, Presiding Judge. CLINTON, Judge,

text:
    Ex parte Fred F. ALEXANDER.
    No. 69278.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 13, 1985.

      Fred F. Alexander, pro se.
    John C. Paschall, Dist. Atty., Franklin, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

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

In his amended application filed in the convicting court, the applicant alleged that he was convicted of the offense of burglary of a building (V.T.C.A., Penal Code, § 30.-02) in Cause No. 12,647 upon his guilty plea to a felony information in a bench trial in the 82nd District Court on December 14, 1981. In accordance with a plea bargain his punishment was assessed at two years’ imprisonment. No appeal was taken.

In his habeas application applicant contends that his conviction in Cause No. 12,-647 is void because he was denied the effective assistance of counsel and it was obtained in violation of the double jeopardy provisions of the federal and state Constitutions and the laws of Texas.

Finding the application was not well founded, the convicting court forwarded the record to this court as provided by Article 11.07, supra. This court ordered an evidentiary hearing so the facts surrounding applicant’s contentions might be developed. Such hearing was conducted and the record of such hearing and the trial judge’s findings of facts and conclusions of law have been forwarded to this court.

At the evidentiary hearing, at which applicant was represented by counsel, the record reveals that applicant was charged by felony complaint and felony information with the same burglary on March 17, 1980, in Cause No. 12,447 in the 82nd District Court of Robertson County. On the same date (March 17th) applicant entered a plea of guilty before the court and his punishment was assessed at five years’ imprisonment, probated. His probation was subsequently revoked, and he was sentenced. No appeal was taken.

Later in 1981 applicant filed a pro se post-conviction writ of habeas corpus under Article 11.07, V.A.C.C.P., seeking to set aside his five year conviction in Cause No. 12,447. He alleged the felony information was fundamentally defective because it alleged an impossible date as to the commission of the offense, that there was a fatal variance in dates between the complaint and felony information and that he was denied the effective assistance of counsel at his trial. The complaint alleged the offense occurred “on or about March 9,1980” and the information alleged the offense occurred “on or about March 17, 1980,” the date the complaint and the information were filed, and the date upon which the applicant entered his plea of guilty. The record shows the offense actually occurred on March 9, 1980.

Applicant’s wife retained an attorney to represent him in the habeas proceedings. From the testimony of the applicant and the attorney at the evidentiary hearing, we learn that counsel advised applicant that in his (counsel’s) opinion that applicant’s contentions were without merit. Counsel explained that the district judge could hold a hearing, and then forward the record to the Court of Criminal Appeals for final action as required by Article 11.07, supra. He informed the applicant, however, that the district judge was of the opinion the habeas application had merit, was inclined to “intercept” the writ proceedings, set aside the conviction, and dismiss the information, and allow applicant to plead to a new felony information, and there was agreement with the State for a new two year sentence. Counsel admonished applicant the district judge had no authority to set aside a final felony conviction as proposed, and that if any new conviction was ever challenged it would have to be set aside and the former five year conviction reinstated. Applicant indicated he understood.

The district judge found that the complaint alleged the offense occurred on March 9, 1980, the information alleged March 17, 1980, that applicant was in jail from March 10 to March 17, 1980 and the information was fundamentally defective. The trial judge then granted the relief requested by the habeas application, set aside the conviction in Cause No. 12,447, and dismissed the information.

Thereafter on December 14, 1981, a new felony information was filed in Cause No. 12,647 charging the same burglary. Applicant entered a plea of guilty to this information. The court assessed his punishment at two years’ imprisonment in accordance with the plea bargain.

At the conclusion of the evidentiary hearing the present district judge of Robertson County found, inter alia, that counsel had explained the proper procedure under Article 11.07, supra, and the then district judge’s anticipated actions, the consequences that could flow therefrom, and that applicant chose to proceed with the “immediate trial court actions” so he could obtain early release on parole.

The court also found applicant had stated under oath he had no specific complaint about counsel, and that applicant was not denied the effective assistance of counsel. We agree, and further find there is no merit to his claim that after he had succeeded in setting aside the conviction in No. 12,447 by his own habeas corpus application he was placed in double jeopardy by being convicted in Cause No. 12,647, for the same offense.

The present district judge of Robertson County also found the conviction in Cause No. 12,647 was void as the trial court did not have authority to set aside the conviction in Cause No. 12,447 pursuant to a post-conviction habeas corpus writ of habeas corpus under Article 11.07, supra. The judge also concluded the applicant was now subject to the sentence in Cause No. 12,447 and should be required to satisfy that five year sentence.

These findings and conclusions are correct. Article 11.07(2)(a), V.A.C.C.P., provides in part:

“After final conviction in any felony case ... the writ must be made returnable to the Court of Criminal Appeals of Texas at Austin, Texas.”

It is well established that only the Court of Criminal Appeals possesses the authority to grant relief in a post-conviction habeas corpus proceeding where there is a final felony conviction. The trial court is without such authority. Ex parte Johnson, 652 S.W.2d 401, 403 (Tex.Cr.App.1983); Ex parte Green, 644 S.W.2d 9 (Tex.Cr.App.1983); Ex parte Williams, 561 S.W.2d 1, 2 (Tex.Cr.App.1978).

While there is no merit to applicant’s contentions, the burglary conviction in trial court No. 12,467 is void and is set aside, and the burglary conviction in trial court No. 12,447 is reinstated. Thus the relief prayed for is granted in part and denied in part.

It is so ordered.

CLINTON, Judge,

concurring.

I concur in the opinion of the Court because the district judge clearly had no authority to release applicant from his five year sentence upon his application for writ of habeas corpus in Cause No. 12,447 filed pursuant to Article 11.07, § 2(a), V.A.C. C.P.; that power is specifically reserved for this Court alone. Id.; Ex parte Ybarra, 629 S.W.2d 943 (Tex.Cr.App.1982).

Since the trial court’s attempt to set aside Cause No. 12,447 was absolutely void, it was a violation of double jeopardy for applicant to be subsequently charged, convicted and sentenced to two years in Cause No. 12,647 for the same burglary, and the latter must now be set aside on the present application. Moreover, I agree that we have no alternative but to recognize the original judgment and five year sentence as effective.

However, it occurs to me that applicant has been severely prejudiced by his unauthorized release from a five year sentence, the subsequent imposition of a two year sentence and, now, the reinstatement of the five year sentence, in terms of his discharge and parole eligibility time credits. Compare Ex parte Esquivel, 531 S.W.2d 339 (Tex.Cr.App.1976). But since applicant does not argue that he is entitled to any additional time credits (which he would have earned had the district court not released him erroneously), I concur in the judgment of the Court.

      . First, it is observed that a felony information need not be supported by a complaint. King v. State, 473 S.W.2d 43 (Tex.Cr.App.1971). Article 21.21(6) provides that the time mentioned in an information must be some date anterior to the filing of the information, and that the offense does not appear to be barred by limitation. It is well settled the State is not bound by the date on or about the offense is alleged to have been committed, but a conviction may be had upon proof that the offense was committed any time prior to the filing of the information that is within the period of limitation. Noah v. State, 495 S.W.2d 260 (Tex.Cr.App.1973); McManners v. State, 592 S.W.2d 622, 623 (Tex.Cr.App.1980); Clark v. State, 590 S.W.2d 512, 513 (Tex.Cr.App.1979); Rogers v. State, 383 S.W.2d 383 (Tex.Cr.App.1960). Here the record reflects the burglary actually occurred on March 9, 1980. While the information in Cause No. 12,447 alleged “on or about March 17, 1980" and the information was filed on March 17th, the filing was prior to trial and the proof showed March 9th. Counsel was correct that applicant’s contentions were without merit.

      . The trial judge was clearly in error. See footnote # 1.

      . By this the writer expresses no opinion as to the merit of such a contention had it been made.

      . If applicant believes he is entitled to additional time credits, it behooves him to fully develop the facts concerning his incarceration on the record.


author: CAMPBELL, Judge.

text:
    William Dean MAYNARD, Appellant, v. The STATE of Texas, Appellee.
    No. 410-84.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 20, 1985.

      Warwick H. Jenkins, Waxahachie, Brenda J. Damuth, Dallas, for appellant.
    Gene Knize, County Atty. and Daniel L. McBride, Asst. County Atty., Waxahachie, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted for the offense of burglary committed by entering a habitation with the intent to commit rape. V.T. C.A. Penal Code, Sec. 30.02(a)(1). The jury assessed punishment at confinement in the Texas Department of Corrections for seven years. The Waco Court of Appeals affirmed his conviction in an unpublished opinion. Maynard v. State, (Tex.App.—Waco, No. 10-83-249-CR, delivered January 31, 1984.)

We granted the appellant’s petition for discretionary review to determine whether evidence of an extraneous offense was improperly admitted into evidence at appellant’s trial. The court of appeals held that appellant failed to preserve the error, that he waived any error by testifying to the same facts to which he had earlier objected, and that the error, if any, was harmless beyond a reasonable doubt. We disagree and accordingly reverse appellant’s conviction.

A brief recitation of the facts is necessary to an understanding of appellant’s grounds of review. We borrow liberally from the opinion of the court of appeals in setting them forth. Appellant testified that at 2:30 a.m. on Sunday, June 6, 1982, he illegally entered the complainant’s house in the City of Waxahachie without her consent by forcing open a window screen; that he and the complainant were strangers; that he entered complainant’s bedroom while she was asleep, and he disrobed except for his socks, got in bed with and awakened complainant, and that he had sexual intercourse with complainant.

Complainant testified that when she was awakened by appellant he was holding both of her wrists with his hands; that he said, “I won’t hurt you if you cooperate”; that he moved one of his hands from her wrist to her throat and, pressing on her Adam’s apple, again said, “If you cooperate, I won’t hurt you”; and that frightened and fearful of physical injury, she did not resist appellant’s act of sexual intercourse with her.

Appellant left the complainant’s house after raping her, but he soon returned (appellant said 25 minutes, the complainant said 10 minutes), parked his car near the complainant’s driveway, went to the back of her house, and began rattling her back door. Appellant was shoeless and shirtless at this time. Believing that the person rattling her door was appellant, the complainant called the police. Two police officers in a nearby patrol car responded almost immediately. Appellant hid in some bushes, then bolted and ran and escaped.

A records check and a telephone call revealed that the automobile left by the prowler belonged to appellant, and the vehicle was impounded and its contents inventoried. The inventory produced a “baggie” of marihuana, a roach clip, a hand-rolled marihuana cigarette, a switchblade knife, a lock-blade knife, an ice chest with a few beers in it, and a tape case. Testimony as to these contents of the vehicle was admitted before the jury over appellant’s objections, and appellant asserts that the testimony regarding the marihuana and the switchblade knife was erroneously admitted and inherently prejudicial because it proved extraneous offenses that had no relevance to any issue in the case.

On the day trial began, appellant filed a “Motion in Limine to Suppress Evidence,” in which he asserted that he had reason to believe that the State intended to introduce as evidence the fact that a quantity of marihuana was found in the search of his automobile and that this evidence was inadmissible for the reason that, if true, it constituted an extraneous offense having no relevance to the burglary charge. The record reflects that when this motion was presented to the trial court, appellant was permitted by agreement of the prosecutor and the trial court to orally add the switchblade knife to the written motion. The record further reflects that the trial court treated this motion as a motion in limine and denied the motion as written, but granted the motion as orally amended.

During the prosecutor’s direct examination of officer Larry Lewis, the District Attorney inquired as to what, if anything, the officer found in appellant’s vehicle. The witness replied, “Pound a baggie of —,” whereupon appellant lodged his objection thereto and requested the matter be taken up outside the presence of the jury. The court then dismissed the jury, and evidence was presented regarding the seizure from appellant’s vehicle of the baggie of marihuana, switchblade knife and lock-blade knife. During this hearing the appellant urged the following objection:

“Your Honor, we object to the offer and admission of any testimony about anything that was discovered in the inventory that succeeded and followed his ascertainment of the ownership of this car for the reason it is not part of the res justi (sic) and it wasn’t necessary to prove identity and it doesn’t bear on intent and it doesn’t show motive and malice and it doesn’t show a plan or system and it has no bearing on any defensive theory and it doesn’t show flight.”

The trial judge overruled appellant’s objection after the prosecutor argued that the evidence was in the nature of res gestae. At the close of the hearing conducted outside the jury’s presence the following colloquy took place between counsel for appellant and the trial judge:

“THE COURT: Mr. Jenkins, you want to renew your objections when the jury gets back or do you just want me to take them into consideration at this time so you won’t have to object and give your objection?
“MR. JENKINS: I believe I will object in the presence of the Jury.”

When the evidence was introduced in the presence of the jury appellant’s counsel lodged the following objection:

“MR. JENKINS: May it please the Court, we would like to object to this line of interrogation about any inventory for the reason that it is immaterial and irrelevant to any issue in this cause and is only offered and introduced, if allowed, to enflame and prejudice the minds and attitude of the Jury toward this Defendant.”

The trial court overruled the objection.

The court of appeals held that nothing was presented for review because it concluded that the “Motion to Suppress” was filed on the day of trial and was unsupported by evidence, citing Writt v. State, 541 S.W.2d 424 (Tex.Cr.App.1976). The court of appeals further held that the objection made by appellant’s counsel in front of the jury was insufficient because it was not based upon the ground that the evidence constituted proof of an extraneous offense. The court of appeals failed to discuss the effect of the hearing held outside the presence of the jury or the objection there made by appellant’s counsel.

In his second ground for review, appellant contends that his motion in limine was supported by the evidence adduced at the hearing outside the jury’s presence. He concludes that this was sufficient to preserve error under Writt, supra. This contention is patently without merit. The record clearly reflects that the trial judge treated appellant’s motion as a motion in limine and granted it before the trial started. Thus, the hearing could not have been conducted pursuant to a motion upon which the trial judge had already ruled. More elementary is the fact that appellant calls the motion a motion in limine in his brief. It is axiomatic that motions in limine do not preserve error.

In his third ground for review, appellant contends that his objection made in the jury’s presence was sufficient to preserve error. He additionally contends that since a hearing was held outside the presence of the jury with regard to the extraneous offenses, and the trial court ruled thereon, it was not necessary for appellant to object in front of the jury in order to preserve his right to complain on appeal. We agree with the court of appeals that appellant’s objection in front of the jury was too global to preserve error. See Garcia v. State, 573 S.W.2d 12 (Tex.Cr.App.1978); Russell v. State, 468 S.W.2d 373 (Tex.Cr.App.1971). However, we agree with appellant that the overruling of his objection made at the hearing outside the jury’s presence was sufficient to preserve the asserted error for appellate review. Article 40.09 6(d)(3), V.A.C.C.P., provides as follows:

“When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence shall be admitted, then in that event such objection shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of such objections being renewed in the presence of the jury.”

We observe that Art. 40.09 6(d)(3), supra, is mandatory by its own terms. We further observe that appellant’s objection outside the jury’s presence, while never using the phrase “extraneous offense,” was clearly sufficient to provide the trial judge and the prosecutor with notice that appellant was in fact complaining of an extraneous offense. Significantly, the prosecutor argued in response to the objection that the evidence was admissible under the res ges-tae exception to the rule prohibiting the admission of extraneous offenses. Additionally, the purpose of an objection is twofold: first, a specific objection is required to inform the trial judge of the basis of the objection and afford him or her an opportunity to rule on it; and second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. See Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977). Since the record clearly reflects that all parties involved at trial were aware of appellant’s complaint, we hold that his objection preserved the issue for appellate review.

While testifying on direct examination as a witness in his own behalf, appellant testified concerning the objects found in his car. He stated that the roach clip, the lock-blade knife, and the ice chest were his and that he knew they were in the car. He admitted owning the switchblade knife but said that he did not know that it was in the car. He denied ownership of the marihuana, intimated that it belonged to his friend who had been riding with him on the Saturday night before the offense, and said he did not know the marihuana was in the car at the time.

It is the general rule that when the defendant offers the same evidence to which he earlier objected, he is not in a position to complain on appeal. Womble v. State, 618 S.W.2d 59 (Tex.Cr.App.1981); Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App.1972). This principle is better known as the doctrine of curative admissibility. The court of appeals relied on this doctrine in holding that appellant waived his objection to the admission of the extraneous offense. There exists, however, a corollary to this rule, unmentioned by the court of appeals, that the harmful effect of improperly admitted evidence is not cured by the fact that the defendant sought to meet, destroy, or explain it by the introduction of rebutting evidence. Such testimony does not act as a waiver of the right to challenge the admissibility of the evidence originally admitted. Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.1978); Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1973); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973). Under these authorities, the appellant did not waive his objection to the legal admissibility of the inventory if he testified to meet, destroy, or explain the existence of the marihuana and the switchblade knife in his car. In Thomas v. State, 572 S.W.2d 507 (Tex.Cr.App.1978), Presiding Judge Onion explained the operation of the rule and its exception thusly:

“[I]f a defendant takes the witness stand to refute, deny, contradict, or impeach evidence or testimony properly objected to, no waiver of the objection occurs. But if a defendant in testifying admits or confirms the truth of the facts or evidence objected to, even if attempting to create a defense based on or beyond those facts, a waiver of the objection does occur. The one possible exception to this principle is that no waiver will be found where a defendant objects to evidence or testimony not tied directly or indirectly to the elements of the case and then in testifying himself admits those facts to be true. This exception is illustrated by Alvarez v. State, supra, in which a portion of a confession saying T always carry a pistol with me because I shot and killed a man in Lubbock not too long ago and am afraid of his people,’ was properly objected to as showing an extraneous offense. This Court found that the objection was not waived when the defendant took the stand and admitted on direct examination that the statement was true in attempting to explain the incident. This was an extraneous offense, not tied to the elements of the case but useful only to show the character of the defendant. However, this case appears to contradict Robbins v. State, 481 S.W.2d 419 (Tex.Cr.App.1972); Cook v. State, 409 S.W.2d 857 (Tex.Cr.App.1966); and Meadowes v. State, 368 S.W.2d 203 (Tex.Cr.App.1963), all of which held that objection to improper evidence of an extraneous offense was waived when the defendant on direct examination confirmed such facts. We express no opinion now as to this point.”

We are now squarely confronted with the issue and we hold that no waiver occurs when, after the admission over objection of evidence of an extraneous offense, the defendant subsequently testifies to essentially the same facts to which he had earlier objected. This is sound policy because it is fair policy. An extraneous offense is collateral to the facts in issue at trial and is inherently prejudicial. That it actually took place does not affect its lack of relevance. To require the defendant to sit mute in the face of such harmful evidence to preserve the issue for appellate review is to unfairly hamstring the defendant at trial. Once the evidence is admitted, correctly or incorrectly, the defendant is compelled by the exigencies of trial to mitigate such inherently prejudicial evidence as best as he or she can. To the extent that Robbins, supra, Cook, supra, and Mead-owes, supra, are inconsistent with this holding, they are overruled.

We are now in a posture to address the merits of this cause — whether the evidence of the inventory was an inadmissible extraneous offense or whether it was “res ges-tae of the offense.” This issue was not addressed by the court of appeals.

It is an established general rule that evidence of prior criminal conduct that is collateral to the charge on which the defendant is being tried is inadmissible. Sanders v. State, 604 S.W.2d 108 (Tex.Cr.App.1980); Saunders v. State, 572 S.W.2d 944 (Tex.Cr.App.1978). We stated in Heflin v. State, 574 S.W.2d 554 (Tex.Cr.App.1978):

“The general rule in all English speaking jurisdictions is that an accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.”

It is well settled that where one offense or transaction is one continuous episode, or another offense or transaction is a part of the case on trial, or blended or closely interwoven therewith, proof of all the facts is proper. Mitchell v. State, 650 S.W.2d 801 (Tex.Cr.App.1983); Archer v. State, 607 S.W.2d 539 (Tex.Cr.App.1981). In Archer, supra, this Court wrote:

“Such an extraneous offense is admissible to show the context in which the criminal act occurred; this has been termed the ‘res gestae,’ under the reasoning that events do not occur in a vacuum and that the jury has [a] right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. Albrecht v. State, 486 S.W.2d 97 Tex.Cr.App. [1972].”

As Judge Clinton recently observed, “[w]hen evidence is offered under this ‘context of offense’ rationale, the prejudicial nature of it will rarely render it inadmissible so long as it truly sets the stage for the jury’s comprehension of the whole criminal transaction.” Maddox v. State, 682 S.W.2d 563 (Tex.Cr.App.1985) (Clinton concurring.) [emphasis in original] Simply put, to qualify as “res gestae”, the evidence of extraneous offenses must be so closely interwoven with the offense on trial that it shows the context in which the offense occurred.

In the case sub judice, the evidence of the marihuana and switchblade did not constitute res gestae of the offense, since there is absolutely no relationship or connection between the evidence of collateral offenses and the crime for which appellant was charged. The record is devoid of any evidence that appellant had the switchblade or marihuana on his person at the time of his arrest, that appellant used the knife in connection with the charged offense, that appellant appeared to be under the influence of marihuana, or any other circumstances which were “shown to have been directly connected with, and contemporaneous to, and inseparable from the arrest of the appellant.” Maddox, supra, at 565. The evidence did not relate to proving that appellant committed the crime of burglary with intent to rape, and its only purpose was to prejudice appellant’s defense. See the cases chronicled in Maddox v. State, supra. We therefore hold that the trial court erred in admitting the evidence of the switchblade and marihuana.

Our final determination is whether the error in admitting evidence of the switchblade and marihuana was harmful error. The test for harmless error is not whether a conviction could have been had without the improperly admitted evidence, but whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Gutierrez v. State, 628 S.W.2d 57 (Tex.Cr.App.1982); Bass v. State, 622 S.W.2d 101 (Tex.Cr.App.1981). Though we are persuaded that the improperly admitted evidence did not contribute to the conviction of appellant for the offense of burglary, our inquiry does not end there.

A second determination must- be made as to whether the admission of this evidence was harmless with respect to the eventual assessment of punishment, in this case, seven years confinement in the Texas Department of Corrections. See Clemons v. State, 605 S.W.2d 567 (Tex.Cr.App.1980); Jordan v. State, 576 S.W.2d 825 (Tex.Cr.App.1978). The court of appeals never made this second determination, but we will do so now. Appellant was statutorily eligible for probation and at the punishment phase of trial he presented nine witnesses, including himself, in an attempt to persuade the jury to probate his sentence. The record reflects that appellant had never before been convicted of a crime, was married with a child six months old at the time of trial, was employed, was a former United States Marine, was in the Marine Reserves at the time of trial, and was considered by his employer to be a good and reliable worker. The record further reflects that the complainant testified that appellant did not injure her and that he had no weapon. The State presented no evidence at the punishment phase of trial.

While the prosecutor did not use extraneous offense evidence during his final argument, either at punishment or guilt-innocence, he did make use of it during his cross-examination of appellant, when he asked appellant whether “you wanted everybody to know that you are a marihuana smoker.” Since appellant’s trial lasted only one day, it is reasonable to assume that the jury was capable of remembering all the testimony during its deliberations on punishment. After considering the entire state of the record, we are unable to say that there is not a reasonable possibility that the improperly admitted evidence contributed to the number of years assessed as punishment by the jury.

Accordingly, the judgments of the court of appeals and the trial court are reversed and this cause is remanded to the trial court for a new trial.

CLINTON, J., concurs in result.

      . The Court of Appeals erroneously characterized appellant’s motion as a motion to suppress and also erroneously concluded that the trial court denied the motion. Even a cursory reading of the record supports our version of this transaction.

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

      . While the State does not argue that appellant waived his objection outside the jury’s presence by making a second and different objection in front of the jury, we note parenthetically that such an argument has no current support in our case law. We have only found a waiver of the provisions of Art. 40.09 6(d)(3), supra, when counsel affirmatively states that he has "no objection” in front of the jury. See Harris v. State, 656 S.W.2d 481 (Tex.Cr.App.1983).

      . 511 S.W.2d 493 (Tex.Cr.App.1973).


author: WHITE, Judge.

text:
    Ralph SIQUEIROS, Appellant, v. The STATE of Texas, Appellee.
    No. 551-84.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 20, 1985.

      Robert R. Harris, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Linda Jurewicz, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

This is an appeal from a conviction of burglary of a habitation under V.T.C.A., Penal Code Sec. 30.02(a)(1). A jury assessed punishment at 99 years imprisonment. On appeal the conviction was reversed by the El Paso Court of Appeals. Siqueiros v. State, 669 S.W.2d 394 (Tex.App.—El Paso, 1984).

The El Paso Court of Appeals reversed the conviction and remanded the case for a new trial because the trial court admitted into evidence an extraneous offense committed by the appellant. In reversing, the majority opinion of the court below held that because the prosecutrix’ identification of appellant had not been completely undermined, and the appellant did not raise an alibi defense, the trial court improperly admitted the extraneous offense during the State’s case in chief. We granted the State’s petition for discretionary review to examine the correctness of that decision.

At trial, J_J_, the 15 year-old victim, testified against the adult appellant. She was the State’s only identifying witness. She stated that on July 16, 1981 she went to sleep in her room at her home just before midnight. She was awakened by a man in her room. After threatening the prosecutrix’ life, the appellant forced her to have sexual intercourse with him. The appellant then left through the prosecutrix’ bedroom window. At trial the prosecutrix identified appellant as the man who entered her home without her permission and forced her to have sex with him.

On cross-examination of the prosecutrix, trial counsel showed that conditions that evening were not conducive to her accurately seeing her assailant. She admitted that the lighting was bad, that she could not see the dial on her digital clock beside her bed, and that she had drunk 3 beers and smoked marihuana before going to bed that night. She admitted that when Officer Andrade arrived at the scene, she told him that her assailant had dark brown, curly hair and did not tell him that her assailant had a mustache. She admitted that on July 27, 1981, when she put together a composite drawing of her assailant, she told Detective Beltran that she had difficulty recalling her assailant’s face and that the assailant had dark brown, curly hair. She admitted that the composite drawing produced in that meeting did not resemble the appellant. Trial counsel then drew attention to the fact that appellant had a mustache. She also admitted on cross-examination that on August 17, 1981, when she picked appellant’s photo from a line-up, she told the officers that she “cannot be positive” of her identification of appellant. She admitted that, when giving a sworn statement to the police, she failed to mention that appellant had a mustache. Trial counsel again drew attention to the appellant’s mustache. On August 20,1981, she went to a voice line-up. She stated that she told Officer Andrade earlier that her assailant’s voice was familiar. She admitted that she could not identify any of the voices as being the appellant’s.

Trial counsel continued to impeach the prosecutrix’ identification of appellant through his cross-examination of the State’s other witnesses. When Detective Beltran was cross-examined, he admitted that on July 27, 1981 the prosecutrix told him that the assailant had wavy hair and did not tell him that the assailant had a mustache. Beltran also stated that on August 17, 1981, the prosecutrix told him that she could not be positive of her identification of appellant in the photo line-up. Bel-tran admitted that in his report he wrote that the prosecutrix had tentatively identified appellant. Trial counsel had him repeat this statement on recross-examination. Beltran also explained that the prosecutrix did not have him include in her statement that the assailant had a mustache. Beltran went on to state that the prosecutrix failed to pick the appellant’s voice from a voice line-up on August 20.

When Officer Andrade was cross-examined, he stated that he was at the scene shortly after the attack on July 17. He admitted that the prosecutrix failed to mention to him that the rapist had a mustache. Again, trial counsel drew attention to the appellant’s mustache. Andrade told trial counsel that the prosecutrix told him that the assailant had dark brown, curly hair.

Lastly, when trial counsel cross-examined Dr. Philip Becker, who performed an examination on the prosecutrix shortly after the attack, Dr. Becker explained that the prosecutrix told him she had 5 or 6 beers to drink on the night of the attack.

The State was then permitted by the trial court to admit into evidence an extraneous offense. K_ H_, a 15 year-old female, testified that on August 10,1981, a man came into her room while she was asleep and attempted to force her to have sexual intercourse with him. At trial, K_ H_ identified the appellant as the man who did this to her. The trial court admitted her testimony after ruling that identity had been made an issue by the defense, and that a significant relationship existed between the extraneous offense and the offense appellant was charged with.

The testimony of both girls, K_ H_and J_J_, revealed that they were both 15 year-old females who attended Eastwood High and lived in the same neighborhood. The two offenses occurred 26 days apart and both took place about 3:00 a.m. The victims were sleeping alone in their bedrooms when their assailant entered through a bedroom window. The assailant put his hand over both girls’ mouths and threatened their lives if they resisted. The assailant told both girls he had a knife. Both victims identified appellant as their assailant.

After K_ H_ testified the State called Art Orozco, a latent fingerprint examiner, to the stand, to prove that the appellant’s fingerprints were found in her house. While being cross-examined, Orozco testified that he had lifted six latent fingerprints from the window to J_ J_’s bedroom. This was the window which prosecutrix said the appellant left through. Orozco testified that none of the six latent prints could be identified as belonging to the appellant.

When the State rested its case, trial counsel moved for an instructed verdict because “there has been some serious question as to the identification of the accused as the person who committed this offense, and the proof has not shown beyond a reasonable doubt that he was involved.” Obviously defense counsel was asking the court for a finding of not guilty because of the lack of identification of the appellant.

Before an extraneous offense may be admitted against a defendant, it must be shown that there is a relationship between such evidence and the evidence necessary to prove that the accused committed the crime for which he stands charged. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). This relationship should consist of some distinguishing characteristic common to both the extraneous offense and the offense charged. Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1973); Blackmon v. State, 644 S.W.2d 12 (Tex.App.Dallas,1982).

If this test is met, and the identity of the defendant is in issue, an extraneous offense is admissible to prove identity. Cobb, supra. Cross-examination of the State’s identifying witnesses can raise the issue of identity. Simmons v. State, 457 S.W.2d 570 (Tex.Cr.App.1970); Blackmon, supra. When the State’s only identifying witness is impeached on cross-examination, raising the issue of identity, the extraneous offense becomes admissible. Ferrell v. State, 429 S.W.2d 901 (Tex.Cr.App.1968). The identification of a defendant can be impeached by cross-examination of the witness about a material detail of the identification, Redd v. State, 522 S.W.2d 890 (Tex.Cr.App.1975); Lusk v. State, 511 S.W.2d 279 (Tex.Cr.App.1974); Jones v. State, 587 S.W.2d 115 (Tex.Cr.App.1978); about the conditions surrounding the offense charged and the witness’ identification of the defendant in that situation, Olivio v. State, 422 S.W.2d 182 (Tex.Cr.App.1967); Owens v. State, 450 S.W.2d 324 (Tex.Cr.App.1969); or about an earlier misidentification of the defendant. Gillon v. State, 492 S.W.2d 948 (Tex.Cr.App.1973). The extraneous offense becomes admissible even where the State’s direct evidence is uncontradicted by other evidence, but is undermined only on cross-examination. Albrecht, supra.

An extraneous offense may be admissible where the State’s identifying witness is not impeached on cross-examination alone, but impeached by the defense counsel’s actions during cross-examination. In these instances, the actions of the defense counsel amount to the equivalent of testimony in support of the defendant. In Walker v. State, 588 S.W.2d 920 (Tex.Cr.App.1979), the defense attorney asked the identifying witness if she noticed any ta-toos and scars on her assailant. When she responded negatively, defense counsel had his client stand up and display his scars and tatoos for the witness and jury. The extraneous offenses were admitted.

Lastly, where an extraneous offense may have been improperly admitted in the State’s case-in-chief, subsequently admitted evidence can render the error harmless. If the trial court improperly admits an extraneous offense, but the defense then raises the issue of intent, Rubio v. State, 607 S.W.2d 498 (Tex.Cr.App.1980); the defense of duress, Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974); or the issue of identity, Jones, supra; the extraneous offense becomes admissible and the earlier error becomes harmless.

We believe the majority opinion of the court below places too great a restriction on the State’s ability to use extraneous offenses when identity has been placed in issue. The facts of the instant case reveal a defense strategy aimed at undermining the prosecutrix’ identification. This strategy raised the issue of identity. We agree with the dissenting opinion of the court below that this made the extraneous offense admissible.

In the instant case the cross-examination of the prosecutrix, Detective Beltran, Officer Andrade, Art Orozco and Dr. Becker sufficiently raised the issue of identity to permit the admission of the extraneous offense. The prosecutrix was the State’s only identifying witness. Appellant impeached a material detail of her identification, specifically, the mustache. This was bolstered by the cross-examination of Bel-tran and Andrade. Appellant impeached the prosecutrix’ identification of him through cross-examination on the conditions surrounding the offense charged: the prosecutrix’ room was dark and not well lit, the prosecutrix could not see the dial on her digital clock, and the prosecutrix had been drinking alcohol and consuming drugs. This was bolstered by the cross-examination of Dr. Becker. Lastly, appellant cross-examined the prosecutrix on the matter of her earlier inability to identify the appellant at the voice line-up. The cross-examination of Detective Beltran bolstered this impeachment. In this case these methods of impeachment sufficiently raised the issue of identity. The majority opinion of the court below held that they were not enough to raise the issue. That decision implies that an identifying witness can only raise the issue of identity if she completely recants her identification under cross-examination.

Appellant’s trial counsel engaged in activity that amounted to an equivalent of testimony impeaching her identification of appellant. While cross-examining the pros-ecutrix as to her inability to recall that the appellant had a mustache prior to the trial, trial counsel kept drawing attention to the fact that appellant had a prominent mustache. The only distinction between this case and Walker, supra, is that appellant did not have to stand up and bare his arms to show his mustache. The majority opinion of the court below mistakenly relies on Walker, supra, to support its decision. As in Walker, supra, the actions of trial counsel here justified the admission of the extraneous offense.

After the extraneous offense was admitted by the trial court, defense counsel cross-examined Art Orozco. This revealed that of the six latent fingerprints recovered from the window to prosecutrix’ bedroom, none came from the appellant and three came from someone besides the prosecu-trix, her family and the appellant. If the earlier admission of the extraneous offense was harmful error, the subsequent evidence raised the issue of identity and cured the error. Rubio, supra; Thrush, supra; Jones, supra.

As the minority opinion of the court below explained, the case of Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980), as written by Judge Clinton, is almost identical to the instant case. In that case, this Court ruled that the extraneous offense was admissible because the issue of identity was raised. The majority opinion of the court below implied that a defendant must put on a defense in order to justify the admission of an extraneous offense. They mistakenly relied on Todd v. State, supra, to support this. In the instant case, as in Todd v. State, “the only purpose for the lengthy and vigorous voir dire and cross-examination of the State’s identifying witnesses ... was to make a defensive issue of the identity of appellant.” Todd, supra, at 291. This, without a case being put on by the appellant, justified the admission of the extraneous offense.

“Any doubt left regarding the defensive trial strategy ... is assuaged by a review of defense counsel’s final argument on the issue of guilt.” Todd, supra. The same is true of the instant case. Defense counsel wisely explained that trials are not like the Perry Mason Show, where the question of identity is clearly answered when a witness breaks down on the stand and admits that he or she is lying. Counsel stated that witnesses do not completely change their testimony on the stand. Counsel then extensively argued the prosecutrix’ questionable identification of appellant. For the last time, he drew attention to his client’s mustache. “It is obvious that the most distinguishing characteristic about him is his mustache.” The defense strategy made identity an issue, and could have provided the jury with reasonable doubt as to the guilt of appellant.

The trial court did not err in allowing the admission of the extraneous offense in the State’s case-in-chief. Accordingly, the judgment of the Court of Appeals is reversed. Since appellant’s other ground of error was considered and overruled by the Court of Appeals, the judgment of the trial court is affirmed.

TEAGUE, J., dissents.


author: DIES, Chief Justice.

text:
    Velbert REED, Appellant, v. The STATE of Texas, Appellee.
    No. 09 84 045 CR.
    Court of Appeals of Texas, Beaumont.
    Nov. 21, 1984.
    Paul Buchanan, Beaumont, for appellant.
    John R. DeWitt, Asst. Criminal Dist. Atty., Beaumont, for appellee.
   OPINION

DIES, Chief Justice.

Appellant was convicted by a jury of theft, and the jury assessed punishment at five years in the Texas Department of Corrections. Appeal has been perfected to this Court.

Appellant argues undér his sole ground of error that the evidence is insufficient to support a conviction for theft of “money”.

Dennis Lane, employed with Martin-Matthews Oil Company in Beaumont, was directed by his supervisor on July 18, 1983, to make a service call on the pumps at Station No. 144. After calling appellant, who informed Lane the pumps were out of gas, Lane had the pumps turned on and found they were not working. He then “stuck” the tanks with a stick gauge and found they were almost empty. Prior to appellant’s taking over the station, Lane had installed four gasoline pumps with new computers. Lane had checked the calibration of these computers and found them accurate. This check was performed before appellant took over the station.

Again on July 23, 1983, Lane’s superior dispatched him to make another service call on the same station. He checked the pumps at around 9 a.m. and found “that all the seals on the totalizers were missing and most of the totalizers had broken glasses and weren’t legible, readable”, and that they appeared to have been tampered with. He reported this to the main office.

The State next called Madeline Adcock, station supervisor for Martin-Matthews. On the “lease” stations it was her job to daily collect the money for the gasoline and the daily reports. She found appellant out of gas on July 18, 1983, called the company and had more delivered. On July 22nd, the same thing happened, and she found it “unusual” that the cash meter readings were “still the same and the gallons had changed, so that told me that the cash meter readings on the meters weren’t working, they were broken.” Appellant was supposed to have the cash readings on his daily reports but when she checked back they were not there. The gallons and cash readings are hooked up on the same meters, so when the gallons meter changed showing the sale of gas, the cash meter should also change; but the cash meter showed no change. This indicated to the witness that something was wrong with the meters. These daily reports were made by appellant and most of the time she saw him making the daily report or, rather, filling it out.

Audie Murphy makes the actual deliveries of the gas to the stations. Murphy identified Exhibits Nos. 7, 8, 9 and 10, one of which was signed by appellant, which showed the amount of deliveries in June and July of 1983. The witness answered, “That is correct" to counsel’s statement:

“The way [the company] determined that the internal controls or how much gas should have been in a tank was they took the amount of gas that was on hand at the last month, which you made a stick reading of, the last stick reading you made, added the number of drops [deliveries], the gallons that had been dropped during that month ... [a]nd subtracted the gallons sold and reconciled it by your taking another stick reading to make sure those two figures coincide.”

James Conway, Vice President and General Manager of the Martin-Matthews Oil Company, and a Certified Public Accountant, testified appellant operated the station in question on a consignment basis from March 2,1983, through July 23,1983. This meant the company owned the station, paid the property taxes on it, put the gasoline in the ground, and paid appellant a commission for each gallon that was sold. The witness also testified that the money appellant received for the sale of the gas, other than the commission, belonged to the company. Appellant was to deduct his commission from the net amount of what he remitted to the company on a daily basis; that, as financial officer of the company, he had never given appellant permission to withhold any moneys except his commission.

On July 19, appellant called reporting he was out of unleaded gas. The company's “perpetual inventory” showed that “he should have had gasoline in the ground at that time.” Based on this inventory the company was short $8,782.08. The witness then identified the records of the station and, using Exhibit No. 13 or “reconciliation” that he prepared, explained how the company was shorted by appellant’s reports and what this meant in monetary terms. That this shortage in money was withheld from the company by appellant and without the company’s consent. The witness had prepared other exhibits, Nos. 14, 15, and 16, showing the shortage on other pumps and their translation in monetary terms.

In an able brief, appellant urges that these facts summarized above are on “all fours” with Sanchez v. State, 645 S.W.2d 491 (Tex.App.—Corpus Christi 1982, no writ). In Sanchez, appellant entered into an agreement with an oil company wherein the latter agreed to install two gasoline tanks and two pumps at appellant’s grocery store, and to supply the appellant with gasoline at wholesale prices. “The appellant agreed to sell the gasoline at a retail price and to remit to the [company] the wholesale price for the gasoline sold.” As in the case at bar, the number of gallons sold by appellant, and thus the amount of money due the company, was determined from a small computer in each pump which recorded the number of gallons passing through the pumps. “The appellant was not obligated to pay for the gasoline until it passed through the pumps.... [A]t the close of each business day, the appellant recorded the numbers displayed by the computers to determine the number of gallons sold that day and the amount of money that was due [the company].” Sometime after the agreement the company discovered a discrepancy of approximately 6,000 gallons between the company’s readings and the appellant’s readings. The indictment stated the appellant did “knowingly appropriate property, to-wit: UNITED STATES CURRENCY of the value of $200.00 or more, but less than $10,000.00 from the owner .... ” After conviction by a jury, the Corpus Christi court held:

“It is well established in Texas that a conviction for theft cannot rest in whole or in part upon the theft of property not alleged in the indictment.” (citations omitted)

and ordered the appellant acquitted.

The indictment in the case at bar alleged appellant “did then and there intentionally and knowingly appropriate property, by acquiring and exercising control of corporeal personal property, namely: current money of the United States of America ... of the value of at least Seven Hundred fifty and No/100 ($750.00) dollars, but less than Twenty Thousand and No/100 ($20,000.00) dollars .... ”

The State strives valiantly to show us distinctions between Sanchez, supra, and the case at bar; but to us, it is a distinction without a difference. And, were we to follow Sanchez, supra, it would be our duty to acquit the appellant. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). However, with due respect to our brethren from Corpus Christi, we believe appellant was appropriating money. It was his duty daily to turn over all the proceeds from the sale of the gas in “money" to the company less his three percent commission. This point of error is overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: McNICHOLAS, Justice.

text:
    BRODRICK MOVING & STORAGE COMPANY, et al., Appellants, v. Barbara M. MOORER, et al., Appellees.
    No. 09-82-106 CV.
    Court of Appeals of Texas, Beaumont.
    Nov. 28, 1984.
    Rehearing Denied Dec. 17, 1984.

      John H. Benckenstein, Beaumont, for appellants.
    Jon Burmeister, Nederland, Gerald Ried-mueller, Beaumont, for appellees.
   OPINION

McNICHOLAS, Justice.

Dennis Brodrick and Alberta Brodrick, Individually, and d/b/a Brodrick Moving & Storage Company, defendants below, herein called “Brodrick”, bring this appeal as a result of a judgment entered in favor of Barbara M. Moorer and Patricia Maloney, plaintiffs below, herein called “Moorer” and “Maloney”, respectively. Allied Van Lines, herein called “Allied”, and Eighmie Moving & Storage Company, herein called “Eighmie”, were named defendants in the lower court, but are not parties to this appeal.

Moorer and Maloney, as plaintiffs, brought suit against Allied, Eighmie and Brodrick, as defendants, for damages to their household goods caused by a fire in Brodrick’s warehouse in Port Arthur, Texas.

Moorer selected Allied to move her furniture from Poughkeepsie, New York to Port Arthur, Texas because Allied had storage facilities in Port Arthur, which was Bro-drick, and engaged Eighmie, also an Allied agent, to transport her goods to Port Arthur. Maloney engaged an Allied agent in Temple, Texas to move her goods to Port Arthur where said goods were stored in Brodrick’s warehouse, the local agent for Allied.

In Moorer’s bill of lading, she valued her goods at $16,500.00 which she admits was correct and signed by her. The declared valuation of Maloney’s furniture was $5,000.00.

The jury exonerated Allied and Eighmie of all acts of negligence, but found that Brodrick was negligent. However, in answer to special issue no. 20, the jury found “that by representing to Allied and its agents that her goods did not exceed $16,-500.00 in value, Mrs. Moorer is now es-topped to claim a higher sum as the true value of the shipment”; and, in answer to special issue no. 21, the jury found Maloney was likewise estopped from claiming more than $5,000.00 for the value of her goods.

The trial court, after disregarding the findings of the jury to special issues nos. 20 and 21, rendered judgment, based on the jury’s verdict, that Moorer recover $40,-000.00 against Brodrick, that Maloney recover of Brodrick $12,500.00, that Moorer and Maloney recover nothing of Allied and Eighmie, that Brodrick recover of Allied $21,500.00, that Moorer and Maloney recover their costs against Brodrick, and that Brodrick recover its costs against Allied.

Brodrick’s first two points of error are that the trial court erred (1) in disregarding the jury’s findings of special issues nos. 20 and 21 and (2) in rendering judgment against Brodrick in favor of Moorer in the amount of $40,000.00 and in favor of Malo-ney in the amount of $12,500.00, because “the released valuation of $16,500.00 and $5,000.00 continues although the transportation is completed and the goods are held strictly as a warehouseman.”

The first issue confronting us is whether the finding of negligence on the part of Brodrick precludes the entry of a judgment favorable to Moorer and Maloney in view of the jury’s finding of estoppel. Estoppel is one of the defenses specifically mentioned in TEX.R.CIV.P. 94 which requires an affirmative defense to be specially pleaded.

A careful examination of Brodrick’s pleadings fail to disclose that estoppel was pleaded, only that of contributory negligence, and since Brodrick requested no issue on estoppel, such defense may well have been waived. Missouri Pacific Railroad Co. v. Phelan Company, 444 S.W.2d 832 (Tex.Civ.App.—Beaumont 1969, writ dism’d); TEX.R.CIV.P. 272. However, because the jury found the defense of estop-pel applicable to Allied and Eighmie, as well as their “agents”, and further found that Brodrick was an agent of Allied, Bro-drick may well argue that a specific affirmative pleading of estoppel on Brodrick’s part was not necessary. Although we do not believe that Brodrick is entitled to the coattail effect of Allied’s apparent affirmative pleadings, Bowling v. City of El Paso, 525 S.W.2d 539 (Tex.Civ.App.—El Paso 1975) writ ref'd n.r.e. per curium 529 S.W.2d 509 (Tex.1975), which pleadings we do not have in the record before us, we find it unnecessary to pass directly on this point because the findings of negligence on the part of Brodrick overcomes any affirmative defense of estoppel.

One may not predicate an estop-pel in his favor to shield himself from his own act or negligence, nor will equity relieve a person from his erroneous acts or omissions resulting from his own negligence. Adams Express Company v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1913); El Paso National Bank v. Southwest Numismatic Investment Group, Ltd., 548 S.W.2d 942 (Tex.Civ.App.—El Paso 1977, no writ); City of Tyler v. Bruck, 267 S.W.2d 429 (Tex.Civ.App.—Texarkana 1954, writ ref’d n.r.e.); Coker v. Benjamin, 83 S.W.2d 373 (Tex.Civ.App.—Beaumont 1935, no writ). Because the recovery was based upon the jury’s finding of negligence, the limitation of liability relied on by Brodrick is not applicable, and the trial court properly disregarded the jury’s findings to special issues nos. 20 and 21 with respect to Brodrick. Appellants first two points of error are overruled.

Brodrick’s third and fourth points of error are that there is no evidence to support the findings of negligence and that the finding of negligence in one or more respects was against the great and overwhelming weight of the evidence so as to be clearly wrong and unjust.

The negligence issue, set out in the margin, which was submitted to the jury without objection, permitted the jury to find from a preponderance of the evidence that Brodrick was negligent in any of eight different acts. The jury, in its answer, was not required to specify the particular act relied upon in its finding. The jury also found in special issue no. 12 that Brodrick failed to exercise such care as a reasonably careful man would exercise in failing to arrest the fire.

There is no question that Brodrick did not have smoke or sprinkler systems installed in his warehouse and that Bro-driek did not have a night watchman. Thus, we cannot say that there was no evidence to support the jury’s findings or that said findings were against the overwhelming weight of the evidence as to be clearly wrong and unjust.

The jury as fact finders were free to believe that any one failure on the part of the defendant constituted negligence and it is not for this court to substitute its findings for those of the trier of the facts. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). See also Jones v. Tarrant Utility Company, 638 S.W.2d 862 (Tex.1982); Carrasco v. Goatcher, 623 S.W.2d 769 (Tex.Civ.App.—El Paso 1981, no writ); Upper Valley Aviation, Inc. v. Fryer, 392 S.W.2d 737 (Tex.Civ.App. Corpus Christi 1965, writ ref’d n.r.e.).

Upon the showing that the goods were lost by fire, the burden of proof rested on Moorer and Maloney to prove negligence and proximate cause on the part of Brodrick, D & D Associates, Inc. v. Sierra Plastics, Inc., 570 S.W.2d 205 (Tex.Civ.App.—Waco 1978, no writ), which burden was met. Points of error three and four are overruled.

Brodrick’s fifth point of error complains of the jury’s award of damages and the finding that Brodrick should recover of Allied, on Brodrick’s cross-action, citing TEX. REV. CIV.STAT.ANN. art. 2212(a) (Vernon Supp.1984).

We overrule this point of error because in perfecting its appeal, Brodrick named only Moorer and Maloney as obli-gees in its cost bond, named only Moorer and Maloney as appellees in its appeal and in its brief stated the only parties to the appeal were Brodrick, as appellant, and Moorer and Maloney, as appellees. Thus, the judgment as to Allied and Eighmie is final. Speckels v. Kneip, 170 S.W.2d 255 (Tex.Civ.App.—El Paso 1942, writ ref’d); Miller v. Dunagan, 123 S.W.2d 363 (Tex.Civ.App.—El Paso 1938, writ dism’d). Bro-drick’s failure to perfect its appeal as to Allied and Eighmie leaves this court without jurisdiction to alter any portion of the judgment as to Allied or Eighmie.

Moorer and Maloney’s cross-point with respect to the claim for prejudgment interest is overruled; the damages not being established as of a definite time and amount. Black Lake Pipe Line Company v. Union Construction Company, Inc., 538 S.W.2d 80 (Tex.1976).

The judgment is affirmed.

AFFIRMED.

BROOKSHIRE, J., not participating.

      ."In connection with Special Issue No. 4, you are instructed that you may consider the following allegations of negligence, and none other:
      1. In failing to maintain its warehouse in a manner to keep the safekeeping of the Plaintiffs’ property as a reasonably careful man would;
      2. In maintaining its warehouse in an extremely overcrowded condition;
      3. In failing to store items in its warehouse in a orderly and safe manner;
      4. In failing to equip its warehouse with effective smoke and fire detecters [sic];
      5. In failing to take ordinary and normal precautions to keep the safekeeping of the Plaintiffs’ property as a reasonably careful man would;
      6. In failing to have proper and sufficient storage facilities for the amount of property stored;
      7. In failing to have adequate storage in that the Defendant, BRODRICK MOVING & STORAGE CO., did not have sprinkler systems, fire alarms, night watchmen, or adequate room in the aisles and the items were packed too high, whereby, if a fire started, the entire contents of the building would burn rather than just a small area;
      8. In failing to mitigate the damages by having inadequate cleanup crews.
      SPECIAL ISSUE NO. 4

        Do you find from a preponderance of the evidence that the Defendant, BRODRICK MOVING & STORAGE CO., was negligent in any of the respects as contended by the Plaintiffs, which was a proximate cause of the Plaintiffs' damages, if any?
      ANSWER:
      "We do” /s/ H.D. Mimms "We do not”_