author: CAMPBELL, Judge. MILLER, Judge,

text:
    Ex parte Victor CARILLO.
    Nos. 69385-69387.
    Court of Criminal Appeals of Texas, En Banc.
    March 6, 1985.
    Rehearing Denied April 17, 1985.

      John D. Reeves, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CAMPBELL, Judge.

This is a post-conviction habeas corpus proceeding under Art. 11.07, V.A.C.C.P. See Ex Parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

The facts show applicant appeared before the trial court on September 8, 1980, and entered pleas of guilty to two charges of aggravated robbery in Palo Pinto County in trial court Cause Nos. 7656A and 7658A and received two (2) concurrent life sentences for same, and that on September 12, 1980, he received a life sentence for aggravated robbery in Parker County in trial court Cause No. 8550, to run concurrent with the two Palo Pinto causes. In exchange for pleas of guilty, the prosecutors in both counties agreed to recommend to the respective trial courts that the sentences run concurrently; that additional charges in Texas and New Mexico be dropped, and that life terms be assessed. After accepting applicant’s pleas of guilty, the plea bargain agreements were submitted to and approved by the respective trial courts.

Applicant now contends that he is “illegally confined and restrained of his liberty because his pleas of guilty were not freely, knowingly, and voluntarily entered in that his attorney advised him that his initial parole eligibility date on a life sentence would be twelve years hence, and applicant pled guilty believing his initial parole eligibility would be reached in twelve years — .” He contends that this advice was erroneous; that he relied on it to his detriment, and that, ergo, his pleas of guilty were involuntary.

Additionally, applicant contends he was denied the effective assistance of counsel in that his counsel failed to investigate the law as it applied to parole.

This cause was abated to the respective trial courts and an evidentiary hearing was conducted in Palo Pinto County on April 18, 1984, and in Parker County on June 26, 1984, with all parties present.

At both evidentiary hearings, applicant testified that his attorney advised him prior to the pleas that he (the applicant) would be eligible for parole in seven (7) to twelve (12) years; that he relied upon this advise in deciding whether to plead guilty, and that he discovered, after being incarcerated at the Texas Department of Corrections, that he would not be eligible for parole until the expiration of twenty (20) calendar years.

The prosecuting attorneys for the respective counties take the position that the only inducements offered to applicant to obtain his plea were the agreement to dismiss other pending indictments and the promise to recommend that the three life terms would run concurrently. Insofar as the respective prosecuting attorneys and trial judges are concerned, such is a fair and accurate representation of the events that transpired.

Upon direct examination at the Palo Pinto County hearing, applicant’s trial attorney was questioned with regard to advice given to the applicant on the subject of parole. Trial counsel testified that he advised applicant that he would “probably be considered for parole in approximately twelve years,” and when asked by appellate counsel if he was aware of the provision in Art. 42.12, Sec. 15(b), V.A.C.C.P., trial counsel replied, in pertinent part: “I was not aware of the twenty year flat requirement under that particular statute.”

Additionally, the record contains a letter dated July 16, 1981, from trial counsel to applicant, advising applicant that he (applicant) could expect to serve twelve years, and perhaps even less, with “trusty time and other credits.”

Applicant testified that he became concerned about his parole situation when he was told by an employee of the Board of Pardons and Paroles that parole would not be a consideration until twenty calendar years had been served. He then wrote a letter to his trial counsel and received the reply of July 16, 1981, documented ante. Applicant testified that he then consulted with a member of the Staff Counsel for Inmates. Staff counsel David Payne then contacted trial counsel by letter, and subsequently received a letter, contained in the record, from trial counsel dated December 15, 1983, substantially confirming the advice given to applicant in the July 16th letter. Finally, applicant testified that, but for the advice of counsel concerning parole, he would not have entered guilty pleas.

Applicant relies on this Court’s opinion in Ex Parte Young, 644 S.W.2d 3 (Tex.Cr.App.1983), wherein we held, inter alia, that “if the defendant is grossly misinformed about his parole eligibility date by his attorney, and the defendant relies upon that misinformation to the extent that it induces him to plead guilty or nolo conten-dere, his plea may be rendered involuntary.” at pg. 5 [emphasis added] We find the facts in the instant case to be inappo-site to those illuminated in Ex Parte Young, supra, hereinafter called Young.

In Young, trial counsel advised the defendant that, if there were a negative finding of the use of a deadly weapon, the defendant would only serve three years of a fifteen year sentence, when in truth and in fact, the defendant would have to serve a minimum of five years calendar time. See Art. 42.12, Sec. 15(b), supra. As pointed out in the opinion, the “trial court also labored under this misunderstanding of the law in that he followed the ‘plea bargain’ to not enter an affirmative finding that a deadly weapon was used.” at pg. 4 [emphasis in original]. Thus in Young, the agreement was made a part of the plea bargain and sanctioned by the trial court. Additionally, the trial judge made findings of fact and conclusions of law, recommending that relief be granted. Thus there was no disputed fact issue to be resolved in Young.

In the instant case, we observe that the subject of parole was expressly discussed with appellant during his guilty plea in Parker County in trial court Cause No. 8550. The following colloquy occurred between the appellant and the trial judge therein:

“THE COURT: Have you been influenced to make your plea by any consideration of fear of any persuasion or delusive hope you might receive a pardon or parole?
“THE DEFENDANT: No, sir.
“THE COURT: Has anybody told you anything about what you could expect in the way of being eligible for parole on a Life sentence or anything like that?
“THE DEFENDANT: No, sir, but I’m aware of it.
“THE COURT: You’ve been down before?
“THE DEPENDANT: Yes, sir.
“THE COURT: How many times?
“THE DEFENDANT: Once sir.
“THE COURT: You realize that most likely — I don’t know what the Board of Pardons and Paroles does, but if you’ve got three offenses, and you’ve been down before, you’re not going to be a very good candidate for parole anytime in the foreseeable future? You understand that?
“THE DEFENDANT: Yes, sir.”

The trial judge in Parker County subsequently entered findings of fact and conclusions of law, stating, inter alia, that “The petitioner’s plea of guilty was voluntary and was not based on any advice or information given to the petitioner by anyone regarding his possible parole eligibility date.” The trial judge in Palo Pinto County entered very similar findings in trial court Cause Nos. 7656A and 7658A.

It is axiomatic that a trial court may not accept a plea of guilty or nolo conten-dere in any felony case unless it appears that the plea is free and voluntary. Art. 26.13(b), V.A.C.C.P. provides:

“No plea of guilty or plea of nolo conten-dere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.”

In the instant case, unlike the Young case, there is presented a disputed issue of fact to be resolved. Both trial judges resolved this issue adversely to the applicant, and found that applicant’s pleas of guilty were made freely, knowingly and voluntarily, and further found that, if there was any inducement for the pleas, it was the dismissal of additional charges and the concurrent running of the three sentences, both of which have been fulfilled. We agree and find that the pleas were entered freely, voluntarily and knowingly. See Art. 26.13(b), supra.

Turning to applicant’s ineffective assistance of counsel claim, the primary support for such a claim is found in trial counsel’s testimony that he “misinterpreted the statute,” and in the two letters mentioned ante. Trial counsel testified that he informed applicant that he would be eligible for parole in around twelve years prior to the pleas of guilty. This is consistent with trial counsel’s letter of July 16, 1981, wherein trial counsel additionally advised applicant that the “best information on this could be secured from the Board of Pardon [sic] and Paroles, in Huntsville, Texas.”

We further observe, in assaying the ineffective assistance claim, that trial counsel succeeding in getting several other aggravated robbery indictments against applicant dismissed; in getting a felony escape charge from the State of New Mexico dismissed; and getting the three sentences to run concurrently. We additionally note that, in one of the robberies committed by applicant, the victim was seriously wounded by applicant.

The standard to be used in determining the performance of counsel is well explicated by Presiding Judge Onion in Mercado v. State, 615 S.W.2d 225 (Tex.Cr.App.1981):

“In Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980), this court, relying on Cuyler v. Sullivan [446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)] supra, held that the effectiveness of both appointed and retained counsel are now to be judged by a single standard under the Sixth Amendment which is that of the ‘reasonably effective assistance of counsel,’ formerly applied only to appointed counsel cases. The ‘breach of a legal duty standard,’ formerly applied in retained counsel cases, [citations omitted] is gone with the wind, [citations omitted].
“The ‘reasonably effective assistance’ standard came from MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), cert. den., 368 U.S. 887, 82 S.Ct. 121, 7 L.Ed.2d 78. In MacKenna, the court said:
“ ‘We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ See also Herring v. Estelle, 491 F.2d 125 (5th Cir.1974).
“This court has previously applied this standard in appointed counsel cases. See Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974), and cases there cited. See also Harrison v. State, 552 S.W.2d 151, 152 (Tex.Cr.App.1977).
“In determining whether an accused has been denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution, the particular circumstances of each individual case must be considered. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1939); Ex parte Gallegos, supra; Ex parte Prior, 540 S.W.2d 723, 726 (Tex.Cr.App.1976).
“The adequacy of an attorney’s services must be gauged by the totality of the representation. Ex parte Prior, supra; Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974); Satillan v. State, 470 S.W.2d 677 (Tex.Cr.App.1971). The allegations of ineffective representation will be sustained only if they are firmly founded. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Long v. State, 502 S.W.2d 139 (Tex.Cr.App.1973).
“The constitutional right to counsel, whether counsel is appointed or retained, does not mean errorless counsel or whose competency of adequacy of his representation is to be judged by hindsight. Ex parte Prior, supra; Byrd v. State, 421 S.W.2d 915 (Tex.Cr.App.1967); Duran v. State, 505 S.W.2d 863 (Tex.Cr.App.1974); Pete v. State, 501 S.W.2d 683 (Tex.Cr.App.1973).” at pg. 228.

We believe that the facts in the instant case present a far different picture from, those in Young. Trial counsel in the instant case did not promise applicant that he would definitely serve only twelve years, and in fact told applicant to consult with the appropriate authority to ascertain such information. We believe that the totality of the circumstances of the case and the totality of the representation rendered by trial counsel was more than adequate under the guidelines explicated in Mercado, supra.

The relief prayed for is denied.

CLINTON, J., concurs in this opinion.

TEAGUE, J., dissents.

MILLER, Judge,

concurring.

I agree that the facts of this case do not meet the test of ineffective assistance of counsel. As pointed out in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), except in cases involving presumed prejudice the defendant has the burden of proof to show not only that counsel committed an unprofessional error, but that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” The reasonable probability test falls between the “some conceivable effect on the outcome” and the “more likely than not altered the outcome” tests. A reasonable probability is one that is “sufficient to undermine confidence in the outcome.” Strickland, supra. This test should, according to Strickland, be used in collateral proceedings and habeas proceedings as well as in direct appeals.

Given this standard, the question in this case is whether there is a reasonable probability that but for counsel’s incorrect advice concerning appellant’s eligibility for parole, the appellant would not have accepted the plea bargain and pled guilty under the facts of this case. Since we must consider the totality of circumstances, we should look at least at the efforts of appellant’s counsel narrated in the majority opinion and the aggravating facts of one of the offenses (run concurrently with the others). Balancing these facts against the bad advice is enough to overcome appellant’s challenge, in part because the advice involved eligibility for parole and not the promise of parole itself.

Parole is very much a speculative proposition. Its happening is contingent on many factors unknown and nonexistent at the time of a guilty plea. Factors such as the conduct of appellant in prison, the composition and attitude of the parole board, the population of the prison system, the identity and attitude of the governor, the regulations governing “good time,” etc., all are yet to be when the defendant decides to plead guilty. The erroneous advise from counsel about the time frame of parole eligibility is then about an event, parole, whose time of occurrence, if any, cannot even be accurately guessed at. It should not be accorded sufficient importance as to outweigh the other factors considered in this case.

All in all, appellant has failed in his burden to prove there is a reasonable probability that but for the erroneous advise, he would not have pled guilty. For these additional reasons, I join the opinion of the majority.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Rafael E. GARZA, Appellant, v. The STATE of Texas, Appellee.
    No. 938-83.
    Court of Criminal Appeals of Texas, En Banc.
    March 20, 1985.

      Robin A. Hartman, Houston, for appellant.
    Amado Abascal, III, Dist. Atty., Eagle Pass, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted upon his guilty pleas before a jury of three offenses of official misconduct (Trial Court Nos. 2498, 2499 and 2500) and three felony theft over $10,000.00 offenses (Trial Court Nos. 29501, 29502 and 29503). In each of the official misconduct cases the jury assessed punishment at five years’ imprisonment and a $5,000.00 fine, and in each of the theft cases the jury assessed punishment at 10 years’ imprisonment and a $10,000.00 fine.

On appeal appellant raised a number of grounds of error. The San Antonio Court of Appeals affirmed the judgments in the six cases, reforming, however, the theft sentences ordering that they run concurrently rather than consecutively as ordered by the trial judge. Garza v. State (No. 04-82-00256-CR). We granted appellant’s petition for discretionary review to review several of appellant's contentions regarding the opinion of the Court of Appeals.

On appeal appellant complained the trial court erred by failing to sua sponte withdraw his plea of guilty to the three theft indictments when evidence was introduced which reasonably and fairly raised an issue of fact as to his guilt. Appellant contends the Court of Appeals erred in overruling this ground of error.

Appellant argues the evidence showed that at the time of the theft offenses he was County Treasurer of Maverick County and was the only person authorized to withdraw funds from the county bank account from which the money was missing, and he thus had a greater right of possession than “Ramon Saucedo, Jr., County Judge of Maverick County,” who was alleged as the “owner” in the three theft indictments. See V.T.C.A., Penal Code, § 1.07(a)(24).

Appellant was duly admonished and entered pleas of guilty to the theft indictment before the jury.

In Darden v. State, 430 S.W.2d 494, 495 (Tex.Cr.App.1968), this Court stated:

“It is well established that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed (authorities cited omitted).
“Where the guilty plea is before the jury, the presumption of innocence does not obtain under the plea and there is no issue of justification under it. Stullivan v. State, 47 Tex.Cr.R. 615, 85 S.W. 810; Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279. See also Jackson v. State, 155 Tex.Cr.R. 466, 236 S.W.2d 623. Where such plea is before a jury, the accused may at any time before the retirement of the jury withdraw his plea and thus put upon the State the burden of proving his guilt beyond a reasonable doubt. Alexander v. State, 69 Tex.Cr.R. 23, 152 S.W. 436....” See Renesto v. State, 452 S.W.2d 498 (Tex.Cr.App.1970); Brinson v. State, 570 S.W.2d 937 (Tex.Cr.App.1978).

The evidence showed that at the time of the offenses appellant was County Treasurer of Maverick County. In that capacity he could make deposits in a county bank account entitled “Maverick County Interest and Sinking and Other Funds Account, No. 8-000-530.” He was authorized to write checks on that account on his signature alone. Appellant set up a bank account in an adjoining county in the name of a fictitious company and over a two year period diverted approximately $84,000.00 in county funds from the above described account to the bank account in the adjoining county. Appellant used the money for personal expenses and to invest in businesses. The appellant made separate written judicial confessions to each offense tracking the allegations of each indictment. A further extrajudicial statement of appellant was also introduced in which he admitted that all of the money involved had been wrongfully appropriated from the rightful owner, Maverick County. Bank account records, checks and numerous other exhibits were offered and accepted into evidence.

The State called Saucedo, the County Judge, the County Auditor, and a witness as to the rental of a postal box. Numerous receipts, cancelled checks, deposit tickets and invoices were also introduced as well as appellant’s statement admitting his guilt.

Saucedo testified he had been County Judge for 12 years prior to his testimony, and that permission had not been given appellant to take the various sums of money from the said account on the various dates involved, and appellant had not been given permission to take any county money. At the conclusion of his testimony, the prosecutor asked:

“Q. This money that we are talking about is not your personal money. It is money that belonged to Maverick County. Is that correct?
“A. That is correct.”

Appellant called two reputation witnesses and then testified himself. He admitted his guilt of the offenses as charged along the lines of his statement previously introduced. He expressly admitted each and every element of the offenses charged. He asked for probation and promised to make restitution. He stated all funds taken were from the same Maverick County account while he was County Treasurer, that the Commissioners Court had required two signatures to withdraw money from other county funds, but had only required one signature — his—on the account in question. He detailed how he had spent the money once he had misappropriated the county money.

On appeal appellant seizes upon the Judge’s testimony that the money was not his personal money and the fact his (appellant’s) was the only authorized signature on the said bank account of the county. He contends that this gave him the greater right of possession than the County Judge, V.T.C.A., Penal Code, § 1.07(a)(24), and that the court on its own motion should have withdrawn the guilty pleas to the theft indictments.

In Varela v. State, 553 S.W.2d 111 (Tex.Cr.App.1977), we stated,

“This court has for years held that when evidence introduced before a jury (when a defendant has entered a guilty or nolo contendere plea) makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required, sua sponte, to withdraw the accused’s guilty or nolo contendere plea and enter a not guilty plea for the accused. [Citations omitted] ...
“For the rule to come into play the evidence must go farther (sic) than just tending to show a defensive issue, it must reasonably and fairly present such issue before the trial court is required to withdraw the guilty or nolo contendere plea. Reyna v. State, [434 S.W.2d 362 (Tex.Cr.App.1968) ]; Galvan v. State, 525 S.W.2d 24 (Tex.Cr.App.1975); Davis v. State, 507 S.W.2d 740 (Tex.Cr.App.1974); Jones v. State, 491 S.W.2d 883 (Tex.Cr.App.1973).
“This is true even though no effort was made by defense counsel at any time during the trial to withdraw the plea and no objection was made to the court’s charge to the jury instructing them that a finding of guilty be rendered, Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976), and even though the testimony of appellant himself may have shown him to be guilty of the offense. Woodberry v. State, supra; Gates v. State, supra.”

See also Montalvo v. State, 572 S.W.2d 714 (Tex.Cr.App.1978); Taylor v. State, 555 S.W.2d 483 (Tex.Cr.App.1977); Malone v. State, 548 S.W.2d 908 (Tex.Cr.App.1977); Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975); Hayes v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942).

It was undisputed that the money in question belonged to Maverick County. It appears the State attempted to follow the better practice, that where the stolen property is owned by a corporation or like entity, to allege the property was taken from the custody and control of a natural person acting for the corporation or like entity. Eaton v. State, 533 S.W.2d 33 (Tex.Cr.App.1976); Castillo v. State, 469 S.W.2d 572, 573 (Tex.Cr.App.1971). It is then necessary to prove this natural person is the special owner of the property. Castillo v. State, supra. When this is done there is no variance between proof showing true owner and allegation of special owner. Eaton v. State, supra.

The Commissioners Court is the governing body of the county, and the County Judge is a member thereof and the presiding officer of the court. See Article 5, § 18, Tex. Const.; Article 2342, V.A.C.S.; Anderson v. Parsley et al., 37 S.W.2d 358 (Tex.Civ.App.1931); Dodson v. Marshall, 118 S.W.2d 621 (Tex.Civ.App.1938).

Article 1709, Y.A.C.S., provides in part:

“It is the county treasurer’s duty to receive all moneys belonging to the county from whatever source they may be derived, and to pay and apply them as required by law, in such manner as the commissioners’ court of the county may require and direct....”

And it has been said that the Commissioners’ Court, not the County Treasurer, is the custodian of county funds. Hurley v. Buchanan, 233 S.W. 590 (Tex.Civ.App.1921).

As the money was the county’s, it was understandable that the State alleged Saucedo as the “owner” and alleged his official position as County Judge. It must be remembered these were pleas of guilty before the jury. These pleas admitted all the facts necessary to establish guilt, and evidence was introduced only to aid the jury in the assessment of punishment. Burks v. State, supra. The State was not required to prove each element of the offenses beyond a reasonable doubt. Under all the circumstances the trial court did not err in failing to withdraw appellant’s plea of guilty on its own motion. See Hayes v. State, supra. The evidence now referred to and isolated by appellant did not make evident his innocence or reasonably and fairly raise an issue to such fact. Appellant’s ground of review is overruled.

Next appellant contends the Court of Appeals decided an important question of state law concerning cumulative sentencing that has not and should be settled by this Court.

Appellant was charged with three Title 7 of the Penal Code theft cases and three Title 8 of the Code official misconduct cases. All six offenses were joined for trial by written motion of the district attorney approved by the appellant and his counsel. No reference in said motion was made to V.T.C.A., Penal Code, § 8.02 (Consolidation and Joinder of Prosecutions).

After the convictions, some of the sentences were made cumulative by the trial court. The sentences in Trial Court Nos. 2500 (five years and $5,000.00 fine for official misconduct), 2501 (10 years and $10,-000.00 fine for felony theft) and 2503 (10 years and $10,000.00 fine for felony theft) were each ordered to commence March 13, 1981. The sentence in Cause No. 2498 (five years and $5,000.00 fine for official misconduct) was ordered to commence after the sentence in Cause No. 2501 had ceased to operate. The sentence in Cause No. 2499 (five years and a $5,000.00 fine for official misconduct) was ordered to commence after the sentences in Cause Nos. 2498 and 2501 had ceased to operate. The sentence in Cause No. 2502 (10 years and a $10,-000.00 fine for felony theft) was ordered to commence after the sentence in Cause No. 2502 had ceased to operate.

The Court of Appeals considered that the district attorney’s motion had been filed pursuant to said § 3.02 and noted that where a defendant is convicted in a single trial of more than one offense defined in Title 7 of the Penal Code (Offenses Against Property) the theft sentences must run concurrently. See V.T.C.A., Penal Code, § 3.03; Smith v. State, 575 S.W.2d 41 (Tex.Cr.App.1979). The court concluded that the Cause Nos. 2501 and 2502, both being for the Title 7 offenses of felony theft, could not be cumulated. The Court of Appeals also concluded that Title 8 (Official Misconduct) offenses were not Title 7 offenses and that § 3.03 prohibiting cumulative sentences under certain circumstances was not applicable. See V.T.C.A., Penal Code, § 3.01, which in effect limits the provisions of § 3.03 to Title 7 offenses. The Court of Appeals then reformed the sentence in Cause No. 2502 to delete all references therein to Cause No. 2501 and ordered it (2502) to commence March 13, 1981.

Appellant complains that the Court of Appeals in effect held that the Title 8 offenses (Official Misconduct) could be made cumulative or “stacked” on each other and “on top” of a Title 7 offense (theft) even where all offenses were consolidated under a motion pursuant to § 3.02. We agree with this assessment of the action of the Court of Appeals, and uphold that action.

Normally the trial judge has absolute discretion to cumulate sentences. Article 42.08, V.A.C.C.P.; Smith v. State, supra.

In arguing the trial court could not cu-mulate the particular sentences involved, appellant relies upon V.T.C.A., Penal Code, § 3.03. Such section provides that where a defendant is convicted, at a single trial, or more than one offense arising out of the same criminal episode, the sentences must run concurrently. Section 3.02 provides that several offenses may be joined in a single trial if the State files written notice at least 30 days prior to trial and the offenses arose out of the same criminal episode. Section 3.01 limits “criminal episode” to the repeated commission of offense defined in Title 7 (Offenses Against Property) of the Penal Code. Thus it is clear that § 3.01 limits the applicability of §§ 3.02 and 3.03. Cf. Smith. In Smith at p. 42 this court noted “Also, attempted capital murder is defined in Title 5 (Offenses Against the Person) and is not subject to the Chapter 3 joinder provisions.”

Sections 3.02 and 3.03 are, of course, applicable to Title 7 offenses. However, to accomplish a proper consolidation of two or more offenses arising from the same criminal episode so that § 3.03 becomes applicable the State must file the written notice required in § 3.02(b). Smith v. State, supra; Caughorn v. State, 549 S.W.2d 196 (Tex.Cr.App.1977); McCullen v. State, 659 S.W.2d 455, 458 (Tex.App. [5th Dist.] 1983). See also Gordon v. State, 633 S.W.2d 872 (Tex.Cr.App.1982).

The Court of Appeals stated the written motion here was filed pursuant to § 3.02. Said motion rendered the Title 7 offenses (theft) applicable to the provisions of § 3.03 but not the Title 8 offenses (official misconduct), which were included in the written motion. We do not view the incorporation of offenses outside Title 7 in a § 3.02 motion as making § 3.03 applicable thereto even where consolidated with Title 7 offenses.

In the instant case appellant agreed to the consolidation. It has long been held that pending indictments may be consolidated in a single trial with the consent or absent an objection by and with the implied consent of the defendant. See Watson v. State, 488 S.W.2d 816 (Tex.Cr.App.1972); Jones v. State, 480 S.W.2d 623 (Tex.Cr.App.1972); Royal v. State, 391 S.W.2d 410 (Tex.Cr.App.1965). See also Johnson v. State, 509 S.W.2d 322, 323 (Tex.Cr.App.1974).

In such cases normally the absolute discretion to cumulate sentences is applicable. Article 42.08, supra. That is still the law except where the provisions of §§ 3.02 and 3.03 become applicable to Title 7 offenses. Appellant’s ground of review is overruled.

Appellant also urges the Court of Appeals erred in overruling his contention that in three cases he should have been prosecuted under V.T.C.A., Penal Code, § 39.01(a)(5) (Official Misconduct), a more particular statute, rather than under Y.T. C.A., Penal Code, § 31.03, the general theft statute.

The general rule is that a specific statute controls over a general statute, see Cuellar v. State, 521 S.W.2d 277 (Tex.Cr.App.1975). See also Sarratt v. State, 543 S.W.2d 391 (Tex.Cr.App.1976); Ex parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.1976); Hines v. State, 515 S.W.2d 670 (Tex.Cr.App.1974). And as appellant noted, the Court of Appeals indicated the theft statute (§ 31.03) was the more specific statute applicable to the criminal conduct of any person appropriating money of value of $10,000.00 or more.

The Court of Appeals disposed of the contention on the basis of waiver. Each of the three indictments contained two counts. The first charged theft of property over $10,000.00 and the second charged official misconduct by misapplying public funds under V.T.C.A., Penal Code, § 39.01(a)(5). The State abandoned the second count in each of these indictments with approval of the trial court without objection from appellant, who then entered guilty pleas before the jury to the said first counts.

The question of waiver aside, we shall address the contention.

Appellant argues that his position as County Treasurer at the time of the offenses immunized him from exposure to prosecution for a second-degree felony (theft over $10,000.00) and that he should have been prosecuted for official misconduct under § 39.01(a)(5), a third-degree felony.

V.T.C.A., Penal Code, § 31.02 (Consolidation of Theft Offenses), provides:

“Theft as defined in Section 31.03 of this code constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.”

The Practice Commentary to said § 31.02 provides in part:

“No part of the old Penal Code produced more confusion, more appellate litigation, and more reversals on technicalities unrelated to the actor’s guilt or innocence than the multitude of offenses proscribing criminal acquisitions of another’s property * * *
“For this reason in the new code most of the theft offenses are consolidated into a single, comprehensive offense ... Section 31.02 serves merely to explain and emphasize the intent of the theft section: theft is a single offense with a uniform culpable mental state, a uniform result, uniform penalties, and uniform defenses, all of which focus on culpability rather than, as under prior law, whether the state is pursuing under the appropriate offense label.”

V.T.C.A., Penal Code, § 31.02, defines theft and divides the offense into classes of misdemeanors and degrees of felonies depending upon the value of the property stolen.

Section 31.03(d)(5), provides:

“(d) An offense under this section is:
U * sfc *
“(5) a felony of the second degree if the value of the property stolen is $10,-000.00 or more.”

Y.T.C.A., Penal Code, § 39.01 (Official Misconduct), provides:

“(a) A public servant commits an offense if, with intent to obtain a benefit for himself or to harm another, he intentionally or knowingly:
“(1) commits an act relating to his office or employment that constitutes an unauthorized exercise of his official power;
“(2) commits an act under color of his office or employment that exceeds his official power;
“(3) refrains from performing a duty that is imposed on him by law or that is clearly inherent in the nature of his office or employment;
“(4) violates a law relating to his office or employment; or
“(5) takes or misapplies any thing of value belonging to the government that may have come into his custody or possession by virtue of his employment, or secretes it with intent to take or misapply it, or pays or delivers it to any person knowing that such person is not entitled to receive it.
“(b) For purposes of Subsection (a)(2) of this section, a public servant commits an act under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
“(c) An offense under Subsections (1)(1) through (a)(4) of this section is a Class A misdemeanor. A offense under Subsection (a)(5) of this section is a felony of the third degree.”

Section 39.01 replaced a large number of the statutes of the former Penal Code (1925), most of which applied to violations of specific duties by specific public servants. The five subdivisions of § 39.01 describe the different ways in which the offense may be committed.

The Practice Commentary to said statute did note:

“Subdivision (5) was not included in the 1970 proposed code and its inclusion is an unfortunate departure from the consolidation of theft offenses, see the commentary on Sections 31.02 and 31.03. The conduct described by Subdivision (5)— taking and misapplication — is covered by the theft chapter with much greater precision_” (Emphasis supplied.)

Section 39.01 proscribes generally misfeasance and nonfeasance in public office. Subdivision 5 was designed to punish a public servant who takes or misapplies any thing of value belonging to the government while the description of the proscribed conduct is specific, the description of the possible item taken (stolen) or misapplied and its value in general and without limit. For example, the taking or misapplication of a thing of the value of five dollars or a million dollars would be a third-degree felony under § 39.01(a)(5). The theft statute (§ 31.03) by contrast to the official misconduct (§ 39.01) statute is a general statute in describing both the conduct and the perpetrator. The specific definition of “property” applicable to § 31.03 expressly includes money. See Y.T.C.A., Penal Code, § 31.01(6). The range of punishment is specially related to the value of the property appropriated. For example, a person convicted of theft of property including money over $10,000.00 would be guilty of a second-degree felony. We conclude that the theft statute is the more specific statute applicable to the criminal conduct of any person stealing money of the value of $10,000.00 or more.

Both statutes were applicable to the alleged conduct of the appellant. Since the statutes are pari materia and when construed together can be harmonized and given effect with the special governing the general in the event of a conflict where the property is money and the value thereof is $10,000.00 or more. See 53 Tex.Jur.2d, Statutes, § 186, p. 280; Hines v. State, 515 S.W.2d 670, 675 (Tex.Cr.App.1974). See and cf. Ex parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.1976).

Appellant’s contention is overruled.

Appellant further urges the trial court erred in failing to admonish him at the time of the guilty pleas that the sentences could be cumulated. Appellant candidly admits this issue was not raised before the Court of Appeals, but requested that we consider the same in the interest of justice. This we decline to do. However, see and cf. Simmons v. State, 457 S.W.2d 283 (Tex.Cr.App.1970), holding the trial court did not have to admonish a defendant as to the court’s discretion to cumulate sentences.

The judgment of the Court of Appeals is affirmed.

CAMPBELL, J., not participating.


author: McCORMICK, Judge. TEAGUE, Judge,

text:
    Joe Allen DISHEROON, Appellant, v. The STATE of Texas, Appellee.
    No. 64827.
    Court of Criminal Appeals of Texas, En Banc.
    March 27, 1985.

      Floyd D. Holder, Jr., Lubbock, for appellant.
    John T. Montford, Dist. Atty. and Jim B. Darnell, Asst. Dist. Atty., Lubbock, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

This is a direct appeal from a conviction for the aggravated robbery of a pharmacy clerk in Lubbock County. The jury assessed punishment at ninety-nine years’ confinement in the Texas Department of Corrections. The sufficiency of the evidence is not challenged.

Joe Allen Disheroon was initially indicted for aggravated robbery with two enhancement paragraphs alleging previous felony convictions for burglary and swindling by worthless check. See V.T.C.A., Penal Code, Section 12.42. Although the State later “dropped” the enhancement paragraphs of the indictment, the district attorney introduced proof of the prior convictions into evidence at the punishment stage of trial as part of appellant’s “prior criminal record.” Article 37.07, Section 3(a), V.A.C.C.P. Appellant contends the trial court erred in admitting his 1965 felony worthless check conviction, Cause No. 3284-B, from Taylor County. Specifically, Disheroon argues that the felony worthless check conviction is void because he was not represented by counsel in 1964-65 when he pled guilty to two misdemeanor worthless check charges that were used to enhance Cause No. 3284-B to a felony.

The progeny of the United States Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), designed to enforce the Sixth Amendment right to counsel, form the basis for appellant’s argument. In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Court held:

"... absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Id. 407 U.S. 37, 92 S.Ct. 2012, 32 L.Ed.2d 538.

The rule of Argersinger is retroactive, Berry v. Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187 (1973), but limited in misdemeanors to those cases where the defendant is actually sentenced to jail. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). However, an uncoun-seled misdemeanor conviction without jail sentence cannot be used to enhance a penalty so as to convert a subsequent misdemeanor to a felony with a prison term. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). See also, Ex parte Olvera, 489 S.W.2d 586, 589 (Tex.Cr.App.1973) (where accused is indigent, without counsel, and does not waive same, conviction is void and cannot be used for enhancement of punishment for another offense).

Prior to 1972, a defendant’s right to counsel in a misdemeanor proceeding was not generally recognized in all jurisdictions. See, Argersinger v. Hamlin, supra. Therefore, appellant’s counsel in Cause No. 3284-B in 1965 could not be expected to object to the enhancing misdemeanors on that basis, and appellant is not precluded by our decision in Hill v. State, 633 S.W.2d 520 (Tex.Cr.App.1982) from raising the issue now. However, appellant has the burden to prove that with respect to the enhancing misdemeanors (1) he was indigent, (2) he was without counsel, and (3) he did not voluntarily waive the right to counsel. See, Chancy v. State, 614 S.W.2d 446, 447 (Tex.Cr.App.1981); Maddox v. State, 591 S.W.2d 898, 902 (Tex.Cr.App.1979) cert. denied 447 U.S. 909, 100 S.Ct. 2994, 64 L.Ed.2d 859 (1980); Bray v. State, 531 S.W.2d 633, 634 (Tex.Cr.App.1976).

Before the State “dropped” the enhancement paragraphs from appellant’s indictment, the trial court held a hearing on the appellant’s motion to quash. At the hearing the parties delved into the question of admitting the allegedly void felony conviction. Appellant testified that the value of the check on which the felony was prosecuted was $10.00 and that the two underlying prior worthless check convictions were misdemeanors. According to Disheroon, he was not represented by counsel when he entered guilty pleas prior to the felony plea in January, 1965 (Cause No. 3284-B). He was not aware he had a right to an attorney when he entered the pleas and did not affirmatively waive his right to an attorney. He was indigent and received jail time on one of the earlier misdemeanors, but did not remember the length of the jail sentence or the specific misdemeanor for which jail time had been assessed. The prosecution on cross-examination established that in 1965 appellant was 18 or 19 years old, married with two children, employed as a carpenter’s helper at $2.75 an hour, rented a furnished house and owned a car. Thus, according to the district attorney, he was not indigent. The trial judge ruled the conviction admissible, noting that the copy of judgment in Cause No. 3284-B was regular on its face and recited that appellant appeared with counsel. No records of the enhancing misdemeanors were made available to the court.

Appellant’s testimony alone fails to meet the burden of showing indigency, lack of counsel and lack of waiver. As in Maddox, we find

“appellant’s testimony alone was not sufficient to disprove the recitations in court papers profferred by the State. In the absence of further proof, which appellant did not offer, we adhere to our consistent holdings that bald assertions by an accused that he was without counsel at his prior convictions are insufficient to overcome the presumption of regularity of the records that were before the trial court in this case.” Maddox v. State, supra, and cases cited therein.

In sum, appellant must show that he was without counsel by some evidentiary vehicle other than simply his own testimony. To hold otherwise would allow the mere assertions of a defendant to invalidate convictions obtained nearly twenty years ago. Ground of error number one is overruled.

Disheroon also contends the State was barred by the doctrine of collateral estoppel from relitigating the issue of the validity of Cause No. 3284-B because a court had previously ruled the conviction void and inadmissible at an earlier trial of another offense. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). A bill of exception appears as part of the papers in the transcript of this cause, No. 20,015, and the text is as follows:

“Be it remembered that prior to the trial of the above entitled cause, the Defendant, Joe Allen Disheroon, was tried for the offense of aggravated robbery in Cause No. 20016, Hon. Robert C. Wright presiding under an exchange of bench, the trial being conducted on August 22 and August 23, 1979, the State of Texas appearing by the Criminal District Attorney, Lubbock County, Texas.
“Be it further remembered that at the trial of said cause, Defendant Joe Allen Disheroon moved the order of the court to rule, outside the presence of the jury, whether or not a prior conviction for swindling by worthless check in Taylor County, Texas was valid. Upon motion by the defendant, after the presentation of testimony outside the presence of the jury, the court found and held that the conviction was void and not admissible either for impeachment purposes or for purposes of enhancement. The State of Texas was present and fully represented at this hearing.
“Be it further remembered that the same conviction found and held to be void at the prior trial was subsequently offered by the State of Texas and admitted into evidence over defendant’s objection at the trial of the above styled and numbered cause.
“Defendant now tenders this bill of exception on the issue of whether or not the State of Texas was barred by the doctrine of collateral estoppel from again litigating the issue as to the validity of the aforesaid prior conviction having once been found and held void, and asks that it be approved and ordered filed as part of the appellate record herein.”

The bill of exception was filed with the clerk within the time prescribed in Article 40.09, V.A.C.C.P., and was unqualifiedly approved by operation of law by the trial court’s failure to act upon it.

Unfortunately, the bill of exception is ineffective to present any question for review. No objection to the introduction of the prior conviction based on the doctrine of collateral estoppel was made in the instant case. Nothing is presented for review. Ground of error number two is overruled.

The judgment is affirmed.

TEAGUE, Judge,

concurring.

This case represents a perfect example of why Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1981), should be expressly overruled by this Court. Garza held that this Court’s members may not review this Court’s records when considering a case involving the same defendant. Because of Garza v. State, supra, this Court is unable to properly address appellant’s contention that because of the doctrine of collateral estoppel the trial court was precluded from relitigating the validity of a prior felony conviction appellant had sustained.

This Court’s records reflect that this is the second appeal from Lubbock County that this Court has considered involving Joe Allen Disheroon, appellant. This Court just recently affirmed his conviction for committing another aggravated robbery. See Disheroon v. State, 653 S.W.2d 823 (1983). It was what occurred in that cause that gives rise to appellant’s contention that the State was precluded from using in this cause a prior felony conviction for punishment purposes.

The “Bill of Exception” that appellant filed in this cause comports in all things with what occurred in the trial that was conducted by the Hon. Robert C. Wright in the 137th Judicial District Court of Lubbock County in April of 1979. In that cause, appellant had been indicted as an habitual criminal. One of the prior felony convictions that was alleged had been elevated to the status of a third degree felony by virtue of two prior misdemeanor convictions. Appellant asserted in that cause that that felony conviction could not be used for punishment purposes because the two prior misdemeanor convictions were void. He asserted and proved that he did not have counsel, did not waive his right to counsel, was indigent, and was not warned of his right to counsel. After a hearing that was held before Judge Wright, Judge Wright agreed with appellant and ruled that the prior felony conviction was inadmissible evidence. The record of that cause reflects that the State was represented by Assistant District Attorneys Rick Howell and Mark McBride. Appellant was represented by attorneys Floyd Holder and Sam Medina. Appellant was convicted and his punishment was assessed at thirty-three (33) years’ confinement in the penitentiary. As noted, that conviction was subsequently affirmed by this Court.

In October, 1979, appellant was tried in this cause before the Hon. John T. McFall, which trial also occurred in the 137th Judicial District Court of Lubbock County. The State was represented by then District Attorney John T. Montford and Assistant District Attorney Mark McBride, who presumably was the same McBride as in the first trial. The appellant was again represented by Holder. Thus, one of the prosecuting attorneys and one of the defense attorneys were one and the same as in the former trial. Of course, appellant was one and the same defendant. The indictment in that cause also alleged that appellant was an habitual offender. One of the prior felony convictions was the same one that Judge Wright had ruled was void and inadmissible evidence. Although no reference was made to the above ruling that Judge Wright had made, appellant, nevertheless, attacked in this cause the same prior felony conviction on the same grounds as before. This time, however, Judge McFall ruled against appellant and admitted the prior felony conviction into evidence at the punishment stage of the trial. The majority correctly points out that the State dropped the enhancement paragraphs of the indictment in this cause. However, the State did introduce into evidence at the punishment stage of the trial the challenged prior felony conviction. Appellant was convicted and his punishment was assessed by the jury at ninety-nine (99) years’ confinement in the penitentiary.

The majority correctly states that prior felony convictions cannot be used either to enhance the punishment or for punishment purposes in general where such convictions are subsequently rendered void upon a determination that the accused was denied his Sixth Amendment right to counsel. Ex parte Cooper, 493 S.W.2d 810 (Tex.Cr.App.-1973). Of course, the same principle of law carries over to misdemeanor cases when the accused faces a substantial punishment. Ex parte Olvera, 489 S.W.2d 586 (Tex.Cr.App.1973).

In implicitly rejecting the appellant’s formal bill of exception, the majority totally overlooks the fact that because of the fundamental nature of the double jeopardy clauses of the respective Constitutions, jeopardy can be raised for the first time on appeal or even through a postconviction writ of habeas corpus. Therefore, such a plea is not waived merely because the defendant failed to object at trial, failed to comply with state statutes regarding special pleas, or pleads guilty to the offense. Menna v. New York, 423 U.S. 61, 62-63, fn. 2, 96 S.Ct. 241, 242, fn. 2, 46 L.Ed.2d 195 (1975); Pleasant v. State, 577 S.W.2d 256, 257 (Tex.Cr.App.1979); Ex parte Jewell, 535 S.W.2d 362, 365 (Tex.Cr.App.1976).

The doctrine of “collateral estoppel,” which is embraced within the constitutional guarantees against double jeopardy, simply means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be reliti-gated between the same parties in any future lawsuit. See the decisions collated under “Collateral Estoppel,” 7A Words and Phrases. “Collateral estoppel” is in the nature of a compromise between a litigant’s interest and the interest of the public in terminating litigation over a particular issue or subject matter. In this instance, Judge Wright’s decision that the prior felony conviction was void became, for legal purposes, a final decision on that issue. Thus, it was improper for Judge McFall to overrule Judge Wright’s decision — because the former adjudication of the issue, whether the prior felony conviction was void, became binding on him and the State in any subsequent litigation involving that same issue. Therefore, both the State and Judge McFall were barred from relitigating the validity of the prior felony conviction. As a matter of law, Judge Wright’s decision could not be disturbed by either Judge McFall or the State.

If a majority of this Court will expressly overrule Garza v. State, supra, it can then determine whether what I have stated is a correct statement of the law — and there is no doubt in my mind that the majority will see why I am correct in what I have stated — if it will only take the time to properly review appellant’s contention.

Because the majority refuses to expressly overrule Garza v. State, supra, I am compelled to dissent.

The majority states that because the judgment in Cause No. 3284-B, which was the felony conviction that was predicated upon the two prior misdemeanor convictions, which Judge Wright held were void, reflects that appellant had counsel in that cause, and appellant’s testimony alone was insufficient to establish the invalidity of the two underlying misdemeanor convictions. The majority states the following: “In sum, appellant must show that he was without counsel by some evidentiary vehicle other than simply his own testimony.” This is an incorrect statement of the law— as applied to this cause. In this instance, appellant’s testimony, standing alone, was sufficient to void the prior misdemeanor convictions he had sustained.

It is now elementary law that it is only when the judgment of conviction that is attacked reflects that the defendant had counsel does the rule that his testimony alone is insufficient to overcome the presumption of regularity become applicable. If the majority will carefully read the decision of Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976), which it cites in its opinion, I believe it will see why its above statements are, in this instance, erroneous as a matter of law.

Notwithstanding the above erroneous statements by the majority, with Garza v. State, supra, still on the books, and the record of appeal being in the shape it is in, the majority probably reaches the correct result.

However, all appellant has to do, once this Court’s decision becomes final, is to file a post-conviction writ of habeas corpus, alleging therein and proving up what is now in this Court’s archives. He will then be entitled to relief. I suggest to appellant that when he prepares his application for post-conviction writ of habeas corpus he incorporate by reference the record of appeal in the former cause as well as the record of appeal in this cause.

But, isn’t this judicial ridiculousness? To prolong the inevitable is, in my view, needlessly expending the limited judicial resources of not only the trial court but this Court as well. Therefore, let us join together and unanimously and expressly overrule Garza v. State, supra. The majority, however, declines to take this action.

Therefore, I reluctantly concur.


author: W.C. DAVIS, Judge.

text:
    Faelyn Ann ROGERS, Appellant, v. The STATE of Texas, Appellee.
    No. 66440.
    Court of Criminal Appeals of Texas, En Banc.
    March 27, 1985.

      Paul J. Chitwood, Dallas, for appellant; Edgar A. Mason, Dallas, of counsel.
    Donald R. Ross, Co. Atty., and David P. Brown and Richard W. White, Asst. Co. Attys., Henderson, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W.C. DAVIS, Judge.

A jury found appellant guilty of aggravated kidnapping. The court assessed punishment at 30 years’ confinement.

Appellant alleges five grounds of error, including a challenge to the sufficiency of the evidence. We first address appellant’s contention that the evidence is insufficient.

The indictment charged:

that FAELYN ANN ROGERS, on or about the 20th day of November, A.D. 1979, and before the presentment of this indictment, in said County and State, did then and there, with intent to prevent the liberation of Jo Lynn Rogers, and without her consent, restrain the said Jo Lynn Rogers by secreting and holding her in a place where she was not likely to be found, and the said FAELYN ANN ROGERS intentionally and knowingly abducted the said Jo Lynn Rogers with the intent to terrorize Ted Murf Rogers,....

In the opening statement to the jury, the State briefly summarized their case, listing their witnesses, including Ted Murf Rogers. The State then presented its case.

Randy Horton lived at Cherry Park Trailer Park, near Tatum, with his wife and two children. Ted Rogers and Jo Lynn Rogers lived in an adjacent trailer house. Horton testified that on November 20, 1979, at about 5:30 a.m. as he got ready for work, he noticed that Ted Rogers had already left for work. He saw a brown Ford, with its parking lights on, move from in front of his trailer over to the Rogers’ trailer. Horton heard a car door slam and looked outside, but did not see anything unusual. Two minutes later, Horton heard a high-pitched scream. His wife tried, unsuccessfully, to call the Tatum police. Horton got in his truck and drove by Ted Rogers’ trailer. The Rogers’ trailer door was open. The brown Ford was parked next to the trailer door with the parking lights now off. Horton drove by for a second look and saw a figure seated behind the wheel of the Ford. The trunk of the Ford was open. Horton drove by a third time and saw a body lying on the ground partially behind and to the side of the Ford, and a second person standing in front of the body. He testified that the body on the ground appeared to be a female in a blue nightgown or housecoat, and the person standing by the body appeared to be male.

Horton drove to the trailer park store and asked James Horn, the manager of the store, to go to the Rogers’ trailer with him. Horton drove back to his trailer, grabbed his rifle from his truck, and walked toward the brown Ford. As he approached it, the Ford drove away in the direction of the highway. Horton shouted at them to stop. He saw light blue material hanging from the left rear door. Horton shouted to Horn, who had come in his own car, to chase the Ford. Horton followed in his own truck but couldn’t catch up. He saw Horn at the 4-way stop in Tatum and both returned to the Rogers’ trailer, finding the door open and a baby crying in its crib.

James Horn was the Cherry Park Trailer Court manager and operated the grocery and laundromat. He testified that on November 20, 1979, Horton ran into his store and said something was happening at the Rogers’ trailer. Horn drove over to the Rogers’ trailer. A two-toned Ford passed him on the way and Horton yelled for Horn to give chase. As the Ford turned onto the highway toward Tatum, Horn saw material dangling from the left rear door. Horn said that he chased the Ford at speeds in excess of 80 mph, and that when the Ford slowed at the 4-way stop in Tatum he wrote down the license plate number. He lost the chase there and returned to the trailer.

Carl Gage, chief of police for Tatum, testified that at 6:30 a.m. on November 20, 1979, he responded to a call at the trailer court. He met Horn and Horton at the Rogers’ trailer. Gage said he entered the trailer and conducted a search. He said the trailer was clean and in order and that he found a purse containing $500.00. Gage testified that the license plate number written down by Horn was the same as that on the certification registered to appellant’s vehicle. Both the piece of paper used by Horn and the certification were admitted into evidence.

Betty Outler worked at the University of Texas Health Science Center in Dallas. She testified that appellant was her secretary, and that on November 20, the appellant came to work late, around 10:00 a.m. She further stated that she noticed scratches on appellant’s neck; scratches which were not present the day before.

Outler testified that on December 1, appellant told her that she had gone to the Rogers’ trailer on November 20. Appellant explained that she wanted to see Ted, but that he had already gone to work. Appellant told Outler that she and Jo Lynn decided to confront Ted because he had been lying to both of them. They left in appellant’s car. At one point the appellant realized they were headed in the wrong direction. Appellant told Outler that, as she negotiated a U-turn, Jo Lynn jumped from the car and ran off through the woods.

Ricky DeAx, a warrant investigator for Dallas County, testified that he arrested appellant on November 20, 1979 at approximately 12:15 p.m. He said that as he escorted appellant to his car, he observed a black man slumped down in the appellant’s car — as if waiting for someone.

Ann Montgomery worked with appellant at U.T.H.S.C. She testified that she and appellant became close friends. She said that appellant referred to Jo Lynn as Ted’s girlfriend, and that appellant wanted “to get her husband [Ted] back.”

Montgomery testified that in August of 1979, she and appellant drove to Tatum. They waited for Ted Rogers to go to work. Then, under the pretense of conducting a survey, Montgomery knocked on the trailer door to see if Jo Lynn was still there. Appellant waited in the car. Montgomery said that a young blond weighing in excess of 200 pounds answered the door.

In subsequent conversations with Montgomery, appellant made clear that she was determined to “get” Jo Lynn, that she wanted Jo Lynn to disappear to get revenge on Ted. Montgomery testified that appellant asked her for the name of someone who would “make this girl [Jo Lynn] disappear.” Appellant showed Montgomery a vial of white liquid and told her it was chloroform for Jo Lynn. Appellant asked Montgomery to be her alibi and meet her in Mexico. Appellant told Montgomery that all of her sources were falling through and that it looked like she would “have to do it herself.”

Lynda Leard also worked at U.T.H.S.C. with appellant. Leard had relatives in Tatum and on several occasions, appellant would borrow her car to go to Tatum.

Leard testified that she went to Tatum with appellant and Jessie Proffer one weekend so that appellant could see Ted. Leard said appellant told her and Proffer that Ted was coming back to her after he returned from overseas.

Leard testified that appellant also told her that she always paid her debts and would get back at Ted, and that she wanted Jo Lynn to disappear so Ted would suffer mental torture.

William Brown, criminal investigator for Rusk County, testified that he had conducted two thorough land and air searches for Jo Lynn, had circulated photo flyers to the law enforcement communities in the area, and had issued a description of Jo Lynn, that was sent by computer statewide. Jo Lynn has not been found.

The last witness called by the State was Arrilian Smith, the father of Jo Lynn Rogers. Jo Lynn and her baby visited Smith the weekend before she disappeared. Smith said that Jo Lynn had injured her ankle and required assistance to move about. She had used a walker for five weeks. Smith did not think it was possible for Jo Lynn to jump from a car and run through a field.

Appellant’s attack on the sufficiency of the evidence is threefold. First, she urges that the aggravating element of “terrorize Ted Murf Rogers” is unsubstantiated by the evidence. Second, appellant asserts that the element of “abduction” has not been proved, because there is not one word of testimony that Jo Lynn had been secreted and held in a place she was not likely to be found. Third, appellant contends that the State did not prove force, intimidation, or deception as required by Article 20.-01(1)(A), Texas Penal Code.

We review the evidence in the light most favorable to the verdict.

The elements of aggravated kidnapping are:

1) a person
2) intentionally or knowingly
3) abducts
4) another person
5) with the intent to terrorize a third person.

V.T.C.A. Penal Code, Sec. 20.04.

Appellant maintains that terror is a fear greater than that produced by mental torture. Appellant cites authority defining “terror” as that which is agitating and excessive fear, which usually benumbs the body and mind. Arto v. State, 19 Tex.App. 126 (1885); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); Armstrong v. Ellington, 312 F.Supp. 1119 (1970).

Webster’s New Collegiate Dictionary defines “terror” as “to fill with intense fear or to coerce by threat or force.” Rodriguez v. State, 646 S.W.2d 524 (Tex.App. — Hous. [1st Dist.], 1982). “One’s acts are generally reliable circumstantial evidence of one’s intent.” Rodriguez v. State, supra at 527. The aforementioned facts demonstrate that appellant clearly had the intent to terrorize Ted Murf Rogers by her actions. She expressed these intentions specifically on more than one occasion when she told Leard and Montgomery that she wanted to cause Jo Lynn to disappear in order to mentally torture Ted Rogers — to get revenge. These facts coupled with the circumstantial proof of Jo Lynn’s abduction show the intent. No magic words nor incantations on part of the witness is necessary to establish “terror.”

Next we turn our attention to the proof of abduction and restraint. Abduct is defined as “means to restrain a person with the intent to prevent his liberation by (A) secreting and holding him in a place where he is not likely to be found,.... ” Y.T.C.A. Penal Code, Sec. 20.01(2). Restrain is defined as “means to restrict a person’s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. Restraining is ‘without consent’ if it is accomplished by: (A) force, intimidation, or deception; ....” V.T.C.A. Penal Code, Sec. 20.01(1). “It is clear that our law imposes no minimal requirement for restraint other than the interference with the victim’s liberty be substantial.” Rodriguez, supra. In Sanders v. State, 605 S.W.2d 612 (Tex.Cr.App.1980), abduction was proved by a showing that the defendant stole an automobile with a young boy discovered therein. In Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1980), the defendant gave two hitchhikers a ride, and before letting them out, restrained them at gunpoint and forced them to commit fellatio on him. This temporary restraint was sufficient to constitute the “restraint” requirement. Rodriguez, supra. In short, there is no time limitation: the proper measure is that the interference of liberty must be substantial.

The circumstantial evidence in the present case is sufficient to show that appellant substantially interfered with the liberty of Jo Lynn Rogers, by use of force, with the intent to prevent her liberation by secreting and holding her in a place where she was not likely to be found. Appellant admits going to Tatum and seeing Jo Lynn. Horton heard a scream and saw a body lying motionless on the ground. He also saw the appellant’s car speed away with the clothing of the body hanging from the car. That same morning, appellant was seen with fresh scratch marks on her neck. Prior to that day, appellant had mentioned her plans and intent to commit the crime. Jo Lynn Rogers has not yet been found.

Viewing this evidence in the light most favorable to the verdict, we find that “ ‘any rationale trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Griffin v. State, 614 S.W.2d 155 [ (Tex.Cr.App.1981) ].’ ” Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983). Since the evidence supports no inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is a rational finding. This ground of error is overruled.

Appellant contends in her second ground of error that “the trial court erred in overruling appellant’s motion for mistrial because the State had called appellant’s spouse to the stand to testify against her.” The appellant, by way of pretrial motion, requested that the State give an opening statement outlining the State’s case-in-chief. In this statement, the prosecutor named Ted Murf Rogers as a witness, and described what testimony Rogers was expected to relate. Ted Rogers was called as a witness by the prosecution during their case-in-chief. He stated his name and appellant objected, claiming the witness was incompetent to testify. Defense counsel then questioned Rogers out of the presence of the jury. Rogers testified that he and appellant had been married but had since been divorced. Further testimony was adduced that the divorce was on appeal at the time of trial. The court ruled that the witness was incompetent to testify. The witness was dismissed and the jury was brought back into the courtroom. Appellant contends that this constituted reversible error, relying on Johnigan v. State, 482 S.W.2d 209 (Tex.Cr.App.1972). In Johnigan, we held that reversible error results when the State calls a defendant’s spouse, forcing the defendant to object in the presence of the jury, when such is done in such a manner as to convey to the jury the impression that the spouse, if allowed to testify, would rebut defensive testimony previously given.

We do not believe Johnigan controls this case. We find the rule established in Clayton v. State, 465 S.W.2d 769 (Tex.Cr.App.1971) is more appropriate. In Clayton, the prosecuting attorney asked to have the wife of the defendant sworn in and that the State might call her to the stand was improper but was not reversible error. In Clayton, the incompetent witness was not called upon to rebut any defensive testimony. While the witness in the case before us was called to the stand, the jury was not left with the impression that the witness-spouse would refute the appellant’s case. The witness was called during the State’s case-in-chief, not on rebuttal. No defensive theory had been asserted. In addition, in his opening statement, the prosecutor named Rogers and described his expected testimony. Appellant did not object and apparently the State had no idea the testimony would be objectionable. Appellant’s ground of error is overruled.

Appellant contends that the court’s charge was fundamentally erroneous in that it permitted the jury to convict appellant on a theory not alleged in the indictment.

The indictment, in pertinent part, charges that appellant did:

... with intent to prevent the liberation of Jo Lynn Rogers, and without her consent, restrain the said Jo Lynn Rogers by secreting and holding her in a place where she was not likely to be found, and the said Faelyn Ann Rogers intentionally and knowingly abducted the said Jo Lynn Rogers with the intent to terrorize Ted Murf Rogers, _

The charge to the jury states, in pertinent part, as follows:

1.
A person commits the offense of aggravated kidnapping if she intentionally or knowingly abducts another person with the intent to terrorize her or a third 'person.
3.
Now if you find from the evidence beyond a reasonable doubt that on or about the 20th day of November, 1979, in Rusk County, Texas, the defendant, FAELYN ANN ROGERS, did then and there, with intent to prevent the liberation of Jo Lynn Rogers, and without her consent, restrain the said Jo Lynn Rogers by secreting and holding her in a place where she was not likely to be found, and the said FAELYN ANN ROGERS intentionally and knowingly abducted the said Jo Lynn Rogers with the intent to terrorize Ted Murf Rogers, then you will find the defendant guilty of aggravated kidnapping.
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reason doubt thereof, you will acquit the defendant of aggravated kidnapping.

The appellant asserts that by switching the gender in paragraph one of the charge, the trial court’s charge expanded the scope of theories upon which the appellant could be found guilty — that she terrorized Ted Murf Rogers, Jo Lynn Rogers, or both.

The Code Construction Act, Vernon’s Ann.Civ.Stat., Art. 5429b-2, Sec. 2.02(c) hold that words of one gender include the other gender. The switching of “her” for “him”, by itself, does not amount to error. However, we believe the jury’s difficulty over the charge does not stem from this gender switch.

The jury sent the trial court a note which read:

Judge Colley,

The purpose of this request is to clarify section one (1) and section three (3). It is believed that section three (3) is more restrictive with regard to the charge of aggravated kidnapping.
Section one (1) states that ‘A person commits the offense of aggravated kidnapping if she intentionally or knowingly abducts another person with the intent to terrorize her or a third person.’ It is the underlined phase [sic] that seems to be less restrictive than Section three (3). Section three (3) in part states that ‘intent to terrorize Ted Murf Rogers, ... ’ Our question is—can the defendant be found guilty or not guilty, as charged, if she intended to terrorize Jo Lynn Rogers, Ted Rodgers [sic] or both?
Or should we only consider if the defendant intended to terrorize Ted Rogers?

The trial court, in its First Supplemental Charge, instructed the jury:

In response to your communication you are advised to read the Court’s Charge in its entirety and be governed by the instructions therein contained.

The jury was not confused by the choice of gender. Rather, they were confused by the broad abstract paragraph and the more “restrictive” application paragraph.

It is proper for the trial court to set forth in the jury charge the general law defining the offense charged and then make a direct and pertinent application of the law to the facts in the case. Toler v. State, 546 S.W.2d 290 (Tex.Cr.App.1977); Martinez v. State, 157 Tex.Cr.R. 603, 252 S.W.2d 186 (Tex.Cr.App.1952).

No evidence was presented to the jury concerning intent to terrorize Jo Lynn Rogers. Nor was any evidence presented to the jury concerning intent to terrorize both Jo Lynn Rogers and Ted Murf Rogers. The supplemental charge sent to the jury advises the jury to read the charge “in its entirety and be governed by the instructions therein contained.” The application paragraph concisely sets forth what the jury must find from the evidence beyond a reasonable doubt in order to convict appellant. The charge, read in its entirety, and in light of the specificity of the application paragraph and in light of the supplemental charge, leads any rational person to realize that a conviction could only be obtained on the theory of “intent to terrorize Ted Murf Rogers.” Appellant’s ground of error number three is overruled.

In her fourth ground of error, appellant contends that the trial court erred in not granting her request for a charge on the lesser included offense of kidnapping. Appellant asserts that the State failed to establish the aggravating element of “terrorize Ted Rogers”, and therefore the lesser included offense of kidnapping should have been included in the charge. Appellant contends that Outler’s testimony concerning appellant’s exculpatory statement negates the “terrorize” element, which entitled appellant to a charge on the lesser included offense. Briceno v. State, 580 S.W.2d 842 (Tex.Cr.App.1979); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976).

We utilize a two-step analysis to determine whether a charge on a lesser included offense is required. First, the lesser included offense must be included within the proof necessary to establish the charged offense. Second, there must be evidence in the record that if the defendant is guilty, he is not guilty of the charged offense, but only of the lesser offense. Salinas v. State, 644 S.W.2d 744 (Tex.Cr.App.1983); Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981).

Kidnapping is a lesser offense of aggravated kidnapping. See Art. 37.09, V.A.C.C.P. The first step is met. Appellant relies on the exculpatory statement that, if believed, asserts guilt of no crime at all. The exculpatory statement plainly states that Jo Lynn Rogers voluntarily accompanied the appellant and exited the car at her own insistence. This does not constitute evidence of kidnapping. “If a defendant presents evidence that he committed no offense at all, or if he presents no evidence, a charge on the lesser offense is not required. Eldred v. State, 578 S.W.2d 721 (Tex.Cr.App.1979).” Hall v. State, 630 S.W.2d 709 (Tex.App. — Hous. [1 Dist.], 1982). Appellant relies solely on the statement as evidence of the lesser included offense. This statement is no such evidence. No evidence was presented to establish kidnapping. We overrule her ground of error.

Appellant’s fifth and final ground of error is that the State failed to disprove appellant’s exculpatory statement which entitled her to an acquittal. The exculpatory statement was produced by Outler during the State’s case-in-chief. The pertinent passage is as follows:

Q. I will ask you to state to the jury, Mrs. Outler, what the Defendant told you on that occasion concerning the incident?
A. She said she had gone down to see Ted and that she was surprised that he was not at home and that Jo Lynn was there, and that she and Joe [sic] Lynn had got in Faelyn’s car to go to confront Ted because the thing was that he was lying to both of them and that Faelyn made a wrong turn and as she was making a U-turn to get back on the correct road or street, Jo Lynn jumped out of the car and took off through a field.

At the close of the State’s case, the defense rested without presenting any evidence. When the State produces an exculpatory statement by the appellant and does not refute it, either directly or indirectly, the defendant is entitled to an acquittal. Banks v. State, 119 S.W. 847 (Tex.Cr.App.1909). Appellant relies on the rule enunciated in Palafox v. State, 608 S.W.2d 177 (Tex.Cr.App.1979). The rule is twofold: first, the statement must amount to an admission; second, it must amount to an assertion which exculpates the appellant from the charged offense. Palafox, supra; Davis v. State, 474 S.W.2d 466 (Tex.Cr.App.1971); Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971); Simon v. State, 488 S.W.2d 439 (Tex.Cr.App.1972). To invoke the rule, the appellant must admit to committing the acts which constitute the grava-man of the offense.

The above-mentioned passage is not an admission of acts constituting any offense. When the appellant’s statement is entirely exculpatory with no admission of guilt, then the rule does not apply. Trevino v. State, 87 S.W. 1162 (Tex.Cr.App.1905); Dixon v. State, 128 Tex.Cr.R. 584, 83 S.W.2d 328 (Tex.Cr.App.1935).

The record is replete with testimony and evidence tending to refute, directly and indirectly, the truth of the statement. We overrule this ground of error.

The judgment in this cause is affirmed.

ONION, P.J., and CLINTON, McCOR-MICK, MILLER and CAMPBELL, JJ., concur in result.

      . Hereinafter referred to as U.T.H.S.C.

      . Art. 38.11 V.A.C.C.P.

      . See footnote two in Johnigan v. State, supra; Espericueta v. State, 649 S.W.2d 336 (Tex.App. 13 Dist. 1983); Stewart v. State, 587 S.W.2d 148 (Tex.Cr.App.1979).

      . All emphasis added by this writer.

      . See also Broussard v. State, 642 S.W.2d 171 (Tex.Cr.App.1982); Eldred v. State, 578 S.W.2d 721 (Tex.Cr.App.1979); McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974).


author: McCORMICK, Judge.

text:
    A.I. O’KEEFE, Jr., Appellant, v. The STATE of Texas, Appellee. A.I. O’KEEFE, Sr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 67894, 67895.
    Court of Criminal Appeals of Texas, En Banc.
    March 27, 1985.

      Stu Stewart, Houston, for appellant.
    Charles J. Sebesta, Jr., Dist. Atty., Caldwell (Gerald M. Brown, Temple, of counsel), Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

In a joint trial, appellants were convicted of arson and both were sentenced to ten years’ confinement and a $10,000 fine, probated.

During the evening of July 7, 1979, appellants were seen driving away from their weekend home in Brenham around 8:00 p.m. Neighbors testified that appellants left the house in separate cars and drove at a normal rate of speed. Some five to ten minutes after appellants’ departure, neighbors noticed smoke coming from the three story house. Within minutes flames could be seen in the northeast first floor section of the house. By the time the first firefighters reached the scene at approximately 8:20 p.m., the house was fully involved, with fire on all floors. One fireman testified that the most intense part of the fire was in the central part of the house while the Brenham fire marshall testified that when he arrived around 8:25 p.m., the most intense fire was on the northeast side of the bottom floor.

The State’s expert testimony came from Don Hicks, the manager of the special investigations division of CGS Development Laboratories (a forensic engineering company) and from Dr. Andrew Armstrong, an associate professor of chemistry at the University of Texas at Arlington. Hicks testified that his company was hired to investigate the fire by the American General Insurance Company. He went to the fire scene on the afternoon of July 11, 1979, and made a fire scene examination. After walking around the house, he took three samples from areas with low burn patterns and heavy fire damage. He then went to the Brenham fire department and interviewed several individuals who were present at the fire, including the fire chief and the fire marshall. As a result of these interviews, Hicks went back to the fire scene and closely examined the northeast portion of the building. Hicks testified that this examination revealed a definite flammable pour pattern on the floor in the northeast corner of the house. Hicks took a sample from this corner and forwarded all four samples to Dr. Armstrong for chemical analysis. Hicks also testified that he found evidence of low burning and a trailer effect around the south porch and kitchen doorway, indicating that an acceler-ant was poured in the area. Finally, Hicks testified that in his expert opinion the fire was the result of the deliberate act of an arsonist who used gasoline as an acceler-ant. On cross-examination, Hicks admitted that because of the large amount of debris covering the entire area of the house, he did not do a detailed examination of the house. He also admitted that three of the samples taken from areas where he saw burn patterns tested out negative as to the presence of an accelerant. Although he knew the house had wood floors and wood shingles on the roof, Hicks had no knowledge as to the type of interior wall coverings nor did he take into consideration in his investigation any of the furnishings of the house. Finally, he testified that he believed the fire began in the center portion of the house.

Dr. Andrew Armstrong testified that he specialized in arson investigation. On July 14, 1979, he received four samples taken from the fire scene by Don Hicks. After testing each sample with a gas chromato-graph, Armstrong found that the first sample contained some components which could be associated with gasoline, but they were insufficient for absolute identification. Samples two and three were negative and he found that the fourth sample taken from the northeast portion of the building showed a positive residue of gasoline. Furthermore, the fact that this residue was thermally stressed showed that it had been put on the area before the fire.

William Thompson, an arson investigator with the State Fire Marshall’s office testified that he executed a search warrant on the premises in December, 1979, some five months after the fire. He searched for and found three burn patterns, indicating that some type of liquid had been poured on those three locations.

Further evidence showed that the house was purchased by the O’Keefe family some fourteen years prior to the fire and in May of 1978, A.I. O’Keefe, Sr. and his wife transferred ownership of the property to Industrial Plant Services, Inc., the family business, although they still maintained the home as a residence. Furthermore, on January 22,1979, a loan had been taken out on the house in the amount of $50,000.

Paul Peterson, the property claims supervisor for American General Insurance Company, testified that he was handling the insurance claims filed by the O’Keefe family. Two policies were outstanding on the house. The household contents or unscheduled personal property was insured for $95,500. This policy was in the name of A.I. O’Keefe, Sr. and his wife. The second policy was in the name of Industrial Plant Services and insured the dwelling for $228,-000. Proofs of loss and claims were filed on both policies.

The defense presented evidence that during the fire at least one fireman saw a blue flame burning on the first floor. George Cordemeyer, the Brenham fire chief, testified that when he arrived at the fire around 8:15 p.m. the highest area of intensity was on the northeast third floor. Shortly after he arrived Cordemeyer assisted in turning the natural gas supply off where it entered the north side of the house.

The defense presented expert testimony showing that the cause of the fire was either due to a natural gas leak or a cigarette igniting papers and spreading to a plastic container of gasoline that had been left in the house. George Green, a forensic engineer, testified that he had been hired by the defense to investigate the fire and had spent December 7 and 8, 1979, examining the fire scene. He believed the fire started in the east side of the house, possibly in the dining room/parlor area. This was indicated by the fact that the area was burned heavily through the floor, thus showing the longest duration of burning. Green testified that it was possible the fire had originated under the floor. This was evidenced from the fact that there was heavy deep charring underneath the floor. Green testified that the house did not have any sheetrock and the walls in the dining room area had a burly pine wainscot paneling that had been heavily treated with linseed oil.

Green presented two explanations for the quick spread of the fire. First, he found evidence of a gas leak in piping underneath the east side of the house. This would account for the blue flame which the firemen saw near the stairway. The natural path for the fire to travel upward to the second and third floors was through the empty area between the wall and chimney on the east side of the house. Green’s second explanation took into account that A.I. O’Keefe, Sr. said he had been using gasoline to clean a piece of furniture in the dining room. O’Keefe, a heavy smoker, had the gasoline in a plastic gallon container and the container was sitting on a pile of papers. Green theorized that after the appellants left the house, an abandoned cigarette may have caught the papers on fire. The accompanying heat eventually ruptured the container of gasoline, throwing the gasoline throughout a large area. The burly pine paneling quickly caught fire and flames spread rapidly.

Green refuted Hick’s testimony in several areas. First, he testified that he found no evidence of puddling or pouring on the steps or porch, nor was there any evidence of puddling or pouring in the kitchen. The kitchen floor was made of an epoxy resin material that was highly combustible and this might account for what Hicks thought were pour patterns. In addition, examination of the natural gas pipes close to the furnace showed that there was a gas leakage. Green also testified that the patterns Hicks identified as pour patterns in the center part of the house were caused by the rupture of the container of gasoline. Green found no evidence of puddling but did find an indication of a long-listed burn-through which would be caused by the burning of heavy pieces of furniture. Green attributed the rapid spread of the fire to the drift of the natural gas through the space between the walls of the dwelling. Finally, Green testified that during his examination of the fire scene, he found evidence that a large number of valuables and personal items had been consumed in the fire. He stated that in an arson case where the fire was started to collect insurance proceeds, it was highly unusual that such valuables would not have been removed from the building. He concluded his testimony by stating that he found no evidence that the fire was intentionally set.

The defense also introduced the testimony of Joe Perino, a fire protection consultant. Perino testified that he examined the fire scene in January, 1980, and concluded that the fire originated on the east wall of the dwelling between the fireplace and the outside heating and air conditioning unit. He testified that the fire started underneath the floor as a result of a natural gas leak. He found no evidence of any acceler-ant being poured on either the back porch or the steps. He found no evidence of any puddling, finger effects or trailer, all of which would have been present had an accelerant been used to intentionally set the fire.

Several witnesses testified that the appellants’ reaction to the fire was one of shock and disbelief. A.I. O’Keefe, Jr. testified that he and his father left the house the night of the fire to go to the car wash. While they were at the car wash, they were informed that a house in their neighborhood was burning. They immediately returned home and found the house engulfed in flames. Immediately before they had left the house, his father had been using gasoline to clean a piece of furniture in the dining room. O’Keefe testified that although business for the family company, Industrial Plant Services, was slow at the time of the fire, the company was not at its lowest financial point and had from $60,000 to $65,000 cash available. He had $17,000 available to himself personally.

Finally, A.I. O’Keefe, Sr. took the stand and testified that he did not intentionally burn the house down.

Both appellants were indicted under V.T. C.A., Penal Code, Section 28.02(a)(2) (1974) which provided at the time:

“(a) A person commits an offense if he starts a fire or causes an explosion:
“(2) with intent to destroy or damage any building or habitation to collect insurance for the damage or destruction.”

Cause No. 67,895 A.I. O’Keefe, Sr.

In his first ground of error, appellant contends the evidence is insufficient in that there was no evidence of his intent to collect insurance proceeds. In his third ground of error, he argues that the evidence is insufficient in that not every reasonable hypothesis except that of arson was negated. We find after reviewing the evidence that we must sustain both of appellant’s contentions as to the sufficiency of the evidence. Viewing the evidence in the light most favorable to the verdict as we are required to do by Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we find there is no evidence to show any intent to collect insurance. The evidence as to insurance produced by the State shows only that the house and its contents were covered by two insurance policies — one in the name of the appellant and his wife and the other in the name of Industrial Plant Services, Inc. — and, that after the fire, claims were made on each policy.

The record fails to include any evidence which might suggest that the policies were taken out shortly before the fire or increased in value shortly before the fire so as to give support to an inference of some criminal intent on the part of the appellant. Compare Miller v. State, 566 S.W.2d 614 (Tex.Cr.App.1978) (where evidence showed an insurance policy had been renewed and coverage increased some two months prior to fire). In short, there is nothing in the record to support a finding by “a rational trier of fact” that appellant set the fire with the intent to collect insurance proceeds.

Likewise the evidence adduced by the State did not negate every reasonable hypothesis as to the cause of the fire. In Denby v. State, 654 S.W.2d 457, at 464 (Tex.Cr.App.1983) (Opinion on Rehearing), this Court noted that “if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding.” Not only does the evidence in the instant case suggest at least two other reasonable hypotheses besides arson, there is nothing in the record connecting the appellant with the act of arson. The mere fact that it was appellant’s residence and he was seen leaving the scene shortly before the fire was discovered is not sufficient to show that he set the fire.

The State relies on Miller v. State, 566 S.W.2d 614 (Tex.Cr.App.1978), in support of their argument that the evidence is sufficient. Although the instant case has many similarities to Miller, we find it to be distinguishable on one key point: the evidence showing that the defendant actually started the fire. In that case, the defendant was shown to have been present shortly before the fire was discovered. He was trying to notify potential customers and his employees that his restaurant would be closed that day. He was seen leaving the scene in a hurried manner and most importantly, he tried to cover up his prior presence on the day of the fire. In the instant case, although appellant was seen leaving the scene shortly before the fire was discovered, none of the other incriminating facts found in Miller are present. Compare Burrow v. State, 481 S.W.2d 895 (Tex.Cr.App.1972) (where evidence showed that the defendant was seen leaving the scene of the fire shortly after it had been set, after the fire the defendant was seen with singed hair and eyebrows, and prior to the fire defendant had threatened to either blow the house up or burn it down); Smith v. State, 450 S.W.2d 92 (Tex.Cr.App.1970) (where after natural gas explosion in the house, among other things, defendant was found lying on floor in house along with burned candle, matches, gas heater was turned on but not lighted, old clothes and paper had been soaked in a substance smelling like kerosene, and insurance policy covering house and contents was found lying on a table in the living room).

We find the evidence insufficient to support the appellant’s conviction in Cause No. 67,895.

Cause No. 67,894

A.I. O’Keefe, Jr.

In his first ground of error, appellant contends the evidence is insufficient to show that he started a fire with intent to collect insurance. A review of the evidence adduced at trial leads us to find that there is nothing in the record to show that appellant had the requisite intent regarding collecting insurance. Because there is no evidence to show that appellant had any right to the insurance proceeds or was in any way connected to the insurance policies, it was encumbent upon the State to show that he knew of the insurance and that he set the house on fire at the instigation of the owner. Moore v. State, 66 Tex.Cr.R. 169, 146 S.W. 183 (Tex.Cr.App.1912). Although it may be inferred that appellant knew of the insurance policies, we find no evidence whatsoever that he set the house on fire at the instigation of the owner. The mere fact that appellant was at the scene shortly before the fire was discovered does not support the State’s burden.

Appellant also contests the sufficiency of the evidence in two more grounds of error. First, he maintains that the evidence is insufficient in that not every reasonable hypothesis except that of arson was negated and second, he argues that the evidence was insufficient to show that he was a party to the offense. As we noted above in his father’s case, the evidence is insufficient to show that the fire was incendiary in origin. Furthermore, because we have found the evidence lacking in proving that appellant’s father actually started the fire and there was nothing additional adduced at trial which incriminates appellant, we are compelled to also find that the evidence is insufficient to sustain appellant’s conviction as a party to the offense.

Because of our finding in each cause that the evidence is insufficient to sustain the verdict of the jury, and because of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), we must not only reverse the appellants’ convictions, but must direct the trial court to enter a judgment of acquittal in each cause.

W.C. DAVIS, J., dissents.

TEAGUE, J., not participating.