author: CLINTON, Judge.

text:
    The STATE of Texas ex rel. Henry WADE, Criminal District Attorney, Dallas County, Petitioner, v. Honorable Richard MAYS, Judge, 204th District Court, Dallas County, Respondent.
    No. 69329.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 6, 1985.
    Rehearing Denied May 29, 1985.

      Hal E. Turley, Sharon L. Caldwell, Richard A. Anderson for the interested party Cathy Cody, Dallas, for respondent.
    Jan E. Hemphill for the interested party Joe Cody, Jr., Dallas, for petitioner.
    Henry Wade, Dist. Atty. and James R. Nelson, Asst. Dist. Atty., Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

This cause seeks to invoke the original subject matter jurisdiction of the Court provided by Tex. Const. V, § 5, and is denominated an original application for writ of prohibition by the petitioner. The salient undisputed facts follow.

I.

COMMENCEMENT OF CRIMINAL ACTION

On March 12, 1984, one Joseph Jones was apparently killed during the course of an aggravated robbery. On the same day, Joe and Cathy Cody were arrested in connection with this offense.

THE MURDER CHARGES

Joe and Cathy Cody were subsequently, in April, indicted separately for the murder of Joseph Jones. On the last day of April the State filed an announcement of ready in Joe Cody’s murder case; in the middle of May, an announcement of ready was filed in the Cathy Cody murder prosecution.

THE AGGRAVATED ROBBERY CHARGES

Both defendants were, in midJuly, additionally indicted for the March 12 aggravated robbery of Joseph Jones. The State filed an announcement of ready in the Cathy Cody aggravated robbery case on July 31, which was 140 days after “the commencement of the criminal action” against her. An announcement of ready in the Joe Cody aggravated robbery case was filed on August 2, which was 143 days after “the commencement of the criminal action” against him.

DISMISSAL OF THE AGGRAVATED ROBBERIES

Both Joe and Cathy Cody thereafter in August moved the court to set aside their indictments for aggravated robbery, alleging the State’s failure to be ready thereon within 120 days of their arrests for the offense of murder, arising out of the same transaction, entitled them to discharge under Article 32A.02, supra, § l.

The Honorable Richard Mays, Judge of the 204th Judicial District Court and Respondent herein, granted these motions and discharged each defendant from the aggravated robbery indictments, apparently without any contest or argument from the State.

MOTIONS TO DISMISS THE MURDERS

Very shortly after Respondent dismissed the aggravated robbery indictments against the Codys, each defendant moved the court in September to dismiss also the murder charges pending against them on the authority of Article 28.061, V.A.C.C.P., which provides:

“If a motion to set aside an indictment, ... for failure to provide a speedy trial as required by Article 32A.02 is sustained, the court shall discharge the defendant. A discharge under this article is a bar to any further prosecution for the offense discharged or for any other offense arising out of the same transaction.”

A hearing was convened on these motions at which time it was stipulated by the parties that the murder charges arose out of the same transaction as the previously dismissed aggravated robbery charges.

Respondent announced his belief that under the mandatory language of Article 28.-061, supra, he had no discretion to do anything other than grant the motions and discharge the Codys.

The State, however, contended the trial court need not comply with Article 28.061, supra, because the caption to the legislation creating the Speedy Trial Act [hereinafter, “the Act”] is defective for reasons discussed in Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983) (Opinion on motion for rehearing); therefore the Act itself is void and of no effect. In the alternative, the state argued that — in the event the Act is not void — Respondent erred in dismissing the aggravated robbery charges against the Codys since they arose from the same transaction as the murder charges on which the State was timely ready; thus, under the “transactional approach” taken by this Court in Kalish v. State, 662 S.W.2d 595 (Tex.Cr.App.1983), once the State was ready on the original charge, the State could subsequently bring additional charges without violating the Act.

Counsel for Cathy Cody agreed that Kalish, supra, was controlling, but argued it mandates dismissal of any further prosecution arising out of the same transaction as the aggravated robbery charges. He also contended the State had waived this argument by failure to raise it at the time Respondent dismissed the robbery charges.

Attorney for Joe Cody contended that Kalish, supra, notwithstanding, the unambiguous language of Article 28.061, “doesn’t talk at all about which charge comes first and what they are ready on or not ready on;” therefore, the trial court was required to follow the clear dictates of the Legislature. He also argued that when the State, through its Legislature, passes an act into law and a citizen relies on it, the State, through its enforcers of the law (prosecutors), is attempting to deny due process of law “by coming in and saying, in effect, ‘King’s X, Joe Cody; you can’t rely on the law the State of Texas passed, because we didn’t get a complete caption on the bill.’ ”

After hearing these arguments Respondent informed the parties that Article 28.-061 and Kalish, both supra, barred prosecution of the murder cases and therefore required dismissal of the murder indictments against the Codys. He then announced his intention to enter written orders to such effect within 10 days. On request of the State, Respondent agreed to stay his ruling so that the State could seek extraordinary remedies from this Court. Respondent then admitted Joe and Cathy Cody to bail.

II.

In this Court, all interested parties have filed briefs in which they essentially elaborate on their positions in the court below; therefore, we will not reiterate those arguments.

NATURE OF THE REMEDY SOUGHT

Effective January 1, 1978, Art. 5, § 5, Tex. Const, was amended in order to confer upon the Court powers to grant extraordinary writs in cases “regarding criminal law matters,” in addition to the previously existent mandamus and prohibition authority to enforce its own jurisdiction. See generally State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978); Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978) (Onion, P.J., concurring).

In determining the specific nature of the extraordinary relief sought, this Court will not be limited by the denomination of petitioner’s pleadings, but will look to the essence of the pleadings, including the prayers, as well as the record before us. See, e.g., Broggi v. Curry, 571 S.W.2d 940 (Tex.Cr.App.1978); see also Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971); and City of Dallas v. Dixon, 365 S.W.2d 919 (Tex.1963).

The essential difference between the writ of prohibition and the writ of mandamus is that the former issues to prevent the commission of a future act whereas the latter operates to undo or nullify an act already performed; the former will not be granted when the act sought to be prevented is already done, but will lie when such act is not a full, complete and accomplished judicial act. White v. Reiter, 640 S.W.2d 586 (Tex.Cr.App.1982); Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980); Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973).

It is clear from the record that the State seeks to have us prevent Respondent from dismissing the murder indictments pending against Joe and Cathy Cody, and the relief sought is therefore prohibition.

ENTITLEMENT TO RELIEF

“The line between writs of mandamus and prohibition is often thin, e.g., State ex. rel. Vance v. Clawson, 465 S.W.2d 164, 168-169 (Tex.Cr.App.1971), but entitlement to either must be shown to be ‘clear and indisputable,’ Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967); Denison v. Sheppard, 122 Tex. 445, 60 S.W.2d 1031 (1933); ‘unequivocal,’ Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939); ‘abundantly clear,’ Meissner v. Fuchs, 290 S.W.2d 941, 944 (Tex.Civ.App.—Galveston 1956) error dismissed. * * [T]he writ will not issue ‘if the right is doubtful’ nor ‘if there is any substantial defect in the proof of the ... right,’ English v. Treaccar, 153 S.W.2d 539, 541 (Tex.Civ.App.—Galveston 1941). We agree that the writ ‘issues to require the execution of a matter whose merit is beyond dispute_’ Wortham v. Walker, [133 Tex. 255], 128 S.W.2d at 1151 [1939].”

Knowles v. Scofield, 598 S.W.2d 854, 860 (Tex.Cr.App.1980).

Here, the State’s only allegation as to its entitlement to the relief sought is that the “relevant facts are completely undisputed [and] the question resolves itself to a pure question of law.” In these regards, the State is correct. Accordingly, the threshold questions we confront are whether this condition of the dispute before us entitles the State, as a matter of indisputable right, to the extraordinary relief it seeks, and, if not, whether, the action sought to be prevented otherwise constitutes an unequivocal duty devolving on Respondent such that his failure to desist constitutes a proper subject of the exercise of our extraordinary writ authority.

CLEAR LEGAL RIGHT TO DENIAL OF THE MOTIONS TO DISMISS?

The State is correct in its implied observation that disputed facts automatically defeat a petitioner’s entitlement to extraordinary relief, e.g., Knowles v. Scofield, supra; it is also true that there are no disputes as to the facts here. But whether entitlement is demonstrated by the sole presentation of a hotly contested unsettled “question of law” is another matter. For, the law is clear that petitioner must show no impediment to the doing of the act sought to be compelled or prohibited and must also show he has an absolute right to such a judgment. Matthaei v. Clark, 110 Tex. 114, 216 S.W. 856 (1919).

We are not persuaded that any litigant has an absolute right to have a court rule in his favor on a claim such as that advanced by the State in this cause. Upon consideration of the motions before him and the State’s arguments in opposition, Respondent was required to consider and resolve several questions of law before making his ultimate rulings as to dismissal. Each of these judicial “determinations” Respondent was required to make before ruling was an “impediment” to the establishment any “right” to the relief sought, within the meaning of extraordinary writ law. See City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028 (1940) [wherein writ will not issue if right is contingent upon other acts of relator or others].

Furthermore, even the State concedes that the caption to the Act may not be void in its alternative argument which is contingent upon just such a determination by this Court. Surely, if the petitioner concedes the act (ruling) of Respondent complained of may be correct in this regard, he has not even stated a prima facie adequate claim for extraordinary relief much less demonstrated a clear legal “right” to the trial court’s ruling in his favor. Wortham v. Walker, supra. An extraordinary writ will not be used to establish a claim of uncertain merit. Busby v. Rabe, 638 S.W.2d 235 (Tex.App.—Tyler 1982, no writ).

CLEAR LEGAL DUTY ON PART OF RESPONDENT TO DENY THE MOTIONS TO DISMISS?

We turn now to the question of whether petitioner has established that Respondent had an unequivocal duty to rule in the State’s favor on the motions to dismiss.

Generally, extraordinary relief will not issue unless the very act (result) sought by the petitioner is manifestly “ministerial” in nature on the part of Respondent — as opposed to “judicial” or “discretionary.” Vance v. Routt, supra; O’Meara v. Moore, 142 Tex. 350, 178 S.W.2d 510 (1944); cf. Swann v. Wheeler, 126 Tex. 167, 86 S.W.2d 735 (Tex.Com.App.1935). Thus, an extraordinary writ is an order directing a public official to perform a duty exacted by law and will not issue to enforce a duty that is to any degree debatable. In re Corrugated Container Antitrust Litigation, 614 F.2d 958 (CA5 1980) cert. den. sub. nom Mead Corp. v. Adams Extract Co., 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980).

A “duty imposed on an official by law” means, in this context, one which is “clearly fixed and required by law;” Oney v. Ammerman, 458 S.W.2d 54 (Tex.1970); the duty must be shown to be “unequivocal,” “unconditional” and “present,” City of McAllen v. Daniel, 147 Tex. 62, 211 S.W.2d 944 (1948); it must be shown that to do other than that sought by relator would be a clear violation of official duty; e.g., King v. Moorhead, 203 S.W.2d 940 (Tex.Civ.App.—Galveston 1947, no writ).

As in this case, the petitioner in Texas Department of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Cr.App.1981), was able to demonstrate both that no other adequate remedy at law, was available, and that the question before Judge Dalehite distilled to only a question of law. Judge W.C. Davis, in rejecting the claim for the Court, noted there:

“An act is said to be [subject to extraordinary relief] when the law clearly spells out the duty to be performed by an official and does so with such certainty that nothing is left to the exercise of discretion or judgment. Forbes v. City of Houston, 356 S.W.2d 709 (Tex.Civ.App.1962).

See also Texas Board of Pardons & Paroles v. Miller, 590 S.W.2d 142 (Tex.Cr.App.1979); and 37 Tex.Jur.2d Mandamus § 47.

It is a corollary to all stated above that when there is any reason which could justify the action of the court, a writ requiring the court to do otherwise cannot issue.

In this case, it is apparent that the several legal determinations Respondent was required to make prior to issuing his ultimate rulings on the motions to dismiss, necessarily involved the exercise of a classic judicial function, as opposed to a function in the nature of a ministerial act.

Moreover, we do not find, nor do we read petitioner in the instant case to be seriously contending, that Judge Mays was “unequivocally required by law” to rule in the State’s favor on all the issues before him; that Judge Mays’ intended ruling would be a “clear violation of his official duty;” that Judge Mays’ failure to rule in the State’s favor on the motions to dismiss would “exceed his authority,” e.g., Holmes v. Denson, 671 S.W.2d 896 (Tex.Cr.App.1984), would be a violation of a “manifest duty,” see Texas Board of Pardons & Paroles v. Miller, supra, or a “gross abuse of discretion,” State v. Sewell, 487 S.W.2d 716 (Tex.1972); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956), amounting to “fraud, caprice or a purely arbitrary decision without reason.” See, e.g., White v. Reiter, supra; see also Southland-Greyhound Lines, Inc. v. Richardson, 126 Tex. 118, 86 S.W.2d 731 (Tex.Com.App.1935); Bush v. Vela, 535 S.W.2d 803 (Tex.Civ.App.—Corpus Christi 1976, no writ).

III.

The only clear right the petitioner has established here is the State’s right to have Respondent rule on (either accept or reject) its claims that the Codys’ motions to dismiss should be denied; the only clear legal duty on Respondent the petitioner has shown, is the duty to rule on (either accept or reject) the State’s arguments in opposition to the Codys’ motions to dismiss. We hold the record establishes Respondent has in all things performed this duty and the State’s unequivocal right has therefore been honored. It follows that an extraordinary writ will not issue when it is necessary to try and decide conflicting claims or collateral questions which require legal controversy for their settlement. See Porth v. Currie, 613 S.W.2d 534 (Tex.Civ.App.—Tyler 1981, no writ); see also 55 CJS Mandamus §§ 53, 58, 59.

Indeed, to hold the mere presentation of a pure but unsettled question of law alone constitutes an adequate basis for exercise of our extraordinary writ authority would grossly undermine and distort the historical function of that authority in our system of justice; such a holding would intolerably erode the authority and unique role of our trial judges within that system. See generally Garcia v. Dial, supra; and Holmes v. Denson, supra, [wherein the nature of the jurisdiction of our criminal district trial courts is assayed].

In sum, we decline petitioner’s invitation and adhere to the well settled principle that petitioner’s failure to establish an indisputable right to have Respondent deny the Codys’ motions to dismiss, constitutes a failure to invoke this Court’s extraordinary writ authority.

Accordingly, the application for writ of prohibition is denied.

ONION, P.J., and McCORMICK and WHITE, JJ., dissent.

W.C. DAVIS, J., not participating.

      . "Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and in criminal law matters, the writs of mandamus, procedendo, prohibition, certiorari_”

      . All events occurred in 1984; we will therefore delete the year throughout. Dates of events will not be specified unless of consequence.

      . In Cause Numbers F84-73011-RQ and F84-73010-RQ, respectively.

      . Joe Cody in Cause Number F84-91898-Q and Cathy Cody in Cause Number F84-91897-SQ.

      . Article 32A.02, V.A.C.C.P., provides in pertinent part:
      "Sec. 2(a) Except as provided in Subsections (b) and (c) of this section, a criminal action commences for purposes of this article when ... prior to the filing [of an indictment, information or complaint] the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or, any other offense arising out of the same transaction, in which event the criminal action commences when he is arrested. ”

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

      . “Sec. 1. A court shall grant a motion to set aside an indictment, ... if the State is not ready for trial within:
      (1) 120 days of the commencement of a criminal action if the defendant is accused of a felony; * * *”

      . The State now contends Respondent erred in granting these motions, but there is no dispute between briefs of all interested parties filed in this Court that the State did not raise such a complaint at the time the indictments were dismissed. The respondent trial judge also contends the State waived this complaint by failing to pursue objections to the rulings at the time they were made.

      . The records before us indicate that four days after Respondent dismissed the aggravated robbery indictment against Joe Cody, a second murder indictment was returned against him for the murder of Joseph Jones in Cause No. F84-92351-Q, which differed only on the enhancement allegations. Apparently, the first murder indictment, Cause No. F84-73011-RQ, against Joe was never dismissed. Thus, his counsel has filed duplicate motions and Respondent has made duplicate rulings in both causes since the return of the second murder indictment.
      Since the original murder indictment was never dismissed, we will, for the sake of clarity, continue to refer only to it as "the murder charge.” But everything we say regarding it applies with equal force to the second murder indictment against Joe Cody.

      . That the petitioner has no other adequate remedy at law is the second prong of his threshold burden of proof in extraordinary proceedings. In the instant case, there is no question that if Respondent were to dismiss the subject murder indictments against the Codys, the State would have no other remedy whatsoever. See generally Garcia v. Dial, supra; see also Art. V, § 26, Tex. Const.
      For this reason — even if the State could demonstrate Respondent’s dismissal of the aggravated robbery indictments was in error — that issue cannot be relitigated here, nor form the basis for the relief sought today. Holmes v. Denson, 671 S.W.2d 896 (Tex.Cr.App.1984).

      . See arguments of the parties set out in part I, ante, at 896-897.

      . Petitioner must make a clear showing that under certain facts, the law is subject to but one interpretation; he then must show that undisputed facts exist which entitle him unequivocally to a right flowing from that single interpretation. Knowles v. Scofield, supra.

      . "The remedy ... is summary, extraordinary, harsh and drastic, and when it is resorted to for the purpose of compelling a court to render a particular judgment when that court thinks [otherwise], its enforcement is attended by some delicacy. Accordingly, we believe that when there is any reason which could justify the action of the court ..., a writ ... requiring him to enter a judgment cannot be issued.”

        Tide Products, Inc. v. Braswell, 586 S.W.2d 146, 147 (Tex.Civ.App.—Texarkana 1979, no writ), quoting Southwestern Bell Tel. Co. v. Shell, 266 S.W.2d 476, 478 (Tex.Civ.App.—Ft. Worth 1954, no writ).


source: Caselaw Access Project

author: McCORMICK, Judge. CLINTON, Judge,

license: Public Domain

text:
    Raymond GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 63964.
    Court of Criminal Appeals of Texas, En Banc.
    May 15, 1985.
    R. Leonadis McKinney, III, Colorado City, for appellant.

      Frank Ginzel, Dist. Atty., Colorado City, Russell L. Carroll, Asst. Dist. Atty., Sweet-water, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

This is a direct appeal of a conviction for murder wherein punishment was assessed by the jury at fifty years’ confinement. We will affirm.

Appellant challenges the sufficiency of the evidence, arguing the trial court erred in overruling his motion for new trial on the ground that the verdict rendered is contrary to the law and evidence. See Article 40.03, V.A.C.C.P. The standard by which we measure sufficiency of evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): “The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See, Benson v. State, 661 S.W.2d 708, 714 (Tex.Cr.App.1982) (Opinion on State’s Second Motion for Rehearing).

The State’s evidence at the guilt stage of the trial reveals that Raymond Gonzales and the deceased, Malva Forbes, lived together with their infant daughter and Jeb-by Forbes, Ms. Forbes’ twenty-year-old son. On January 28, 1978, appellant Gonzales and Ms. Forbes arrived at their home in the early evening arguing. As the argument continued, the deceased told her son Jebby that Gonzales had been hitting her, whereupon Gonzales stated that he was going to shoot a cat that had apparently wandered into the house. Gonzales appeared intoxicated to Jebby Forbes, who left the couple arguing in the kitchen to go to the bathroom. While in the bathroom, Jebby heard a shot and his mother say, “He shot me.” Jebby dashed to the kitchen to find his mother sitting in a chair bleeding from a wound in the chest. Appellant had a pistol in his hands and a “mean look on his face.” He pointed the gun at Jebby, who ran into another room, closed the door, and held it while Gonzales attempted to force his way in. Shortly thereafter, Jebby wrestled the gun from appellant, who was attempting to make a phone call. The phone was ripped from the wall in the scuffle and the pair landed out in the back yard, where Jebby pointed the gun at appellant. Appellant retrieved a rifle from a bedroom and pointed it at Jebby as he fled the scene in a pickup truck. Jebby testified that he drove directly to his grandmother’s house, where he reported the shooting to police.

Joe Urbanasky, a chemist from the Department of Public Safety, testified that he examined the blouse worn by the deceased and performed tests to show the distance of the shot by comparing the powder residue around the bullet holes in the blouse with powder residue from two controlled test shots. In Urbansky’s opinion, the pistol was a distance of between four feet and seven feet away from the victim when fired, and it would have been impossible for both victim and assailant to have had contact with the pistol at the time it was fired due to the awful long distance to stretch. Ronald B. Richardson, an employee of the Firearms Section of the Scientific Crime Laboratory of the Texas Department of Public Safety, also testified. He opined that the bullet retrieved from the body of Ms. Forbes was shot from the appellant’s weapon, a single action revolver. He also explained that in order to remove the cylinder from that particular handgun, the hammer had to be forward and the loading gate down. Richardson further testified that, in order to fire, the gun had to be manually cocked each time, and when the gun was cocked the loading gate would not come down to permit removal of the pin and cylinder. Bobby Sparks, a reserve sheriff's officer, also testified about the gun and explained that it could not be fired unless the hammer was fully cocked because only in the fully cocked position did a transfer bar come up between the hammer and the firing pin. Sparks explained that the hammer of the gun did not strike the firing pin directly, so the transfer bar had to be raised between the hammer and firing pin in order for the gun to be fired.

The State called three witnesses to testify about the previous relationship existing between appellant and the deceased. See, V.T.C.A., Penal Code, Section 19.06. The victim’s mother testified that, while she was staying with appellant and her daughter during the previous year, appellant threatened the life of the deceased while he was drunk. Pamela Owens, the deceased’s daughter, testified that within the previous year the couple had had frequent fights and difficulties in their relationship. She recalled an incident where appellant had beaten her mother, giving her a bloody nose and swollen jaw. The victim’s sister testified that when she visited the couple at their home in July, 1977, an argument ensued over shooting a pig during which appellant got out his gun, pointed it at the deceased and said, “Shut your goddamn mouth, or I will shoot you.”

Gonzales testified in his own behalf and related that he did beat the deceased during one incident but the beating occurred after she had threatened to kill him. According to appellant, on the day of the shooting he drank very little but Ms. Forbes was drunk. He and Ms. Forbes were arguing over Jebby leaving marihuana seed and “roach” butts in his car. Ms. Forbes was cursing him so he told her to go to bed. He took her to bed and laid her down. He wanted something to do with his hands so he got up and took the gun from the chest of drawers. He was cleaning the gun in the kitchen when Ms. Forbes entered, still arguing with him. She said, “You goddamn son-of-a-bitch Mexican, I hate you.” She talked to him like that on many occasions, he testified, and at the time he was angry and upset but he was not upset to such a degree that he wanted to hurt her.

The shooting occurred, according to appellant, while he was trying to remove the cylinder from the weapon in order to clean it. He testified that he was sitting at the kitchen table with the gun. He stood up with the gun and Ms. Forbes stood up too. He had the hammer back to pull the cylinder out. When she reached for him to try to get the gun away from him, he pushed her. She tripped over a rug and fell toward him. The gun went off. She was almost right on him when the gun went off. Gonzales attempted to refute Jebby’s version of the events immediately after the shooting. He testified that he pointed the gun at Jebby Forbes to show him that he did not think it was loaded and Jebby ran to his bedroom. Appellant then attempted to use the phone to call the police. Jebby grabbed appellant from behind as he was dialing the number and wrestled him out the back door and proceeded to get the gun away from him, pointing it at Gonzales. Gonzales testified that he retreated to his bedroom to get his car keys. After Jebby left, Gonzales drove to a friend’s house, but no one was home. He then went to the home of Jack Autry, told Autry that he had accidentally shot Ms. Forbes and asked Au-try to call the police. When Gonzales returned to the house with Autry, he was taken into custody by police.

The State chemist’s testimony indicating that the victim was from four to seven feet away from the gun when it fired and the ballistic investigator’s testimony concerning the inability of the murder weapon to fire unless the hammer was completely cocked directly contradict appellant’s assertion that the shooting was an accident that occurred while appellant was trying to clean the weapon. It is also significant that the officers who first arrived at the scene testified that there was no gun cleaning articles on the kitchen table when they arrived, not even the screwdriver appellant claims to have been using to initial the gun. The discrepancies between the appellant’s version of the shooting and the evidence presented by the State, together with the testimony of Jebby Forbes about the argument prior to the shooting and conduct of appellant immediately afterwards, render it wholly rational for a jury to conclude that Raymond Gonzales knowingly caused the death of Ms. Forbes by shooting her with a gun, as charged in the indictment. We hold the evidence sufficient to show murder. Compare Foster v. State, 639 S.W.2d 691 (Tex.Cr.App.1982).

Appellant received a charge from the court on voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide. He claims on appeal, however, that he was essentially denied a proper charge on the defensive issue of voluntary manslaughter because the statutory definition of “adequate cause” submitted in the charge of the court is void due to impermissible and unconstitutional vagueness. We disagree.

Y.T.C.A., Penal Code, Section 19.04(c), provides:

“ ‘Adequate Cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.”

We perceive no violation of due process in the Legislature’s failure to specifically define the person of ordinary temper, a standard borrowed from the common law’s “reasonable man” test and introduced to the criminal law well over a hundred years ago. See, Regina v. Welsh, 11 Cox Cr.Cas. 336, 338 (1869); Maher v. People, 10 Mich. 212, 220 (1862). No direct authority for such a proposition has been cited to us by appellant, nor have we been able to discover any through research indicating that most jurisdictions use the ordinary man test in manslaughter statutes. See e.g. Model Penal Code, Section 201.3, comment at 47 (Tent.Draft No. 9, 1959).

The practice commentary to V.T.C.A., Penal Code, Section 19.04, recognized by this Court in McCartney v. State, 542 S.W.2d 156 (Tex.Cr.App.1976), makes it quite clear that the definition of adequate cause is both objective and subjective:

“... It is objective because it views the alleged provocation through the eyes of the ordinary man; it is subjective because the fact-finder must view from the actor’s standpoint in order to view ‘the condition of the mind of the accused at the time of the offense,’ which is necessitated by the mens rea requirement and emphasized by Section 19.06 [V.T.C.A.], from which the quoted phrase is taken.” Id. at 160.

Appellant seems to contend that because he is an Hispanic farm worker who was living with a Caucasian woman on a low income he should be granted more latitude in the degree of insult, etc., sufficient to enrage him. Yet appellant fails to recognize that the standard of the reasonable man, the person of ordinary temper, is employed precisely to avoid different applications of the law of manslaughter to defendants of different races, creed, color, sex or social status.

We see no reason to depart from the view expressed by Judge Lattimore, in Zimmerman v. State, 85 Tex.Cr.R. 630, 215 S.W. 101 (1919):

“We are not the writers of the law, nor do we believe we would be justified in going beyond the statutory definition which uses the words, ‘person of ordinary temper.’ Our merciful law concedes to one rendered incapable of cool reflection, by anything which would produce such condition of mind in any person of ordinary temper, a less punishment for a homicide than would be otherwise inflicted, but the statutory definition is as far as we feel justified in going.” Id. 215 S.W. at 104.

As Associate Justice Miller opined in Hart v. United States:

“While sympathy might at first glance suggest a more lenient rule for persons of low mentality or unstable emotions, the result would be disastrous in the uncertainty of its application. The rule suggested by appellant would become a refuge for ill-tempered, irresponsible citizens; it would put a premium upon lack of self-control and would penalize the reasonable man, the average man, the prudent man, because of the restraint which he practices in his dealings with his fellows.” Hart v. United States, 130 F.2d 456, 458 (D.C.Cir.1942).

Any dissatisfaction with the standard’s failure to consider the peculiar conditions of the individual defendant is a subject more properly addressed to the Legislature. See, e.g. Model Penal Code, Section 201.3, Comment at 47 (Tent.Draft No. 9, 1959). Appellant’s ground of error is overruled.

We note that appellant has urged a pro se supplemental brief on appeal, and although appellant is not entitled to hybrid representation, we have reviewed his claim that the punishment assessed is defective for want of compliance with Article 42.-09(1), V.A.C.C.P., concerning indeterminate sentencing. Amended by Acts 1981, 67th leg., page 810, chapter 291, section 117 effective September 1, 1981. Apparently, appellant based his claim only on the court’s judgment reflecting the jury’s verdict that he be sentenced to confinement for fifty years. The sentence, signed by the trial judge, expressly states that appellant’s term of confinement is “for a term of not less than five (5) years nor more than fifty (50) years....”

The conviction is affirmed.

CLINTON, Judge,

concurring.

The majority states: “Yet appellant fails to recognize that the standard of the reasonable man, the person of ordinary temper, is employed precisely to avoid different applications of the law of [voluntary] manslaughter to defendants of different races, creed, color, sex or social status.” P. 903. That broad statement does not take into account pertinent provisions of V.T.C.A. Penal Code, § 19.06, viz:

“In all prosecutions for ... voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to ... all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.”

Coupled together, § 19.04(c) and the quoted portion of 19.06, particularly the underscored words, render the definition of adequate cause “both objective and subjective,” Practice Commentary to § 19.05. Thus, whether a cause is adequate must be measured not only by understanding “a person of ordinary temper” but also by considering the standpoint of the accused. Ibid.

One, and probably the best, reason “to depart from the view expressed by Judge Lattimore, in Zimmerman v. State, 215 S.W.[] 101, 85 Tex.Cr.R. 630 (1919),” is that when he was writing that which the majority quotes, Judge Lattimore was addressing the former manslaughter law then in effect. However, it was repealed by the “Murder Act,” Acts 1927, 40th Leg., ch. 274, p. 412, § 3. That act also inserted in the penal code “a new article numbered 1257a relating to what may be proved and considered by the jury ...” See Mercer v. State, 111 Tex.Cr.R. 657, 13 S.W.2d 689, 691 (1928). Former article 1257a is the progenitor of § 19.06. Thus, Judge Lattimore was expounding his views without benefit of the very legislative expression now extant.

As to what Associate Justice Miller of the District of Columbia Circuit Court of Appeals opined in Hart v. United States, 130 F.2d 456, 458 (D.C.Cir.1942), suffice to say that, like Judge Lattimore, he did not have to treat any counterpart to article 1257a or § 19.06.

The point of it all is that the statutory definition in § 19.04(c) is just one aspect of what a jury may consider in deciding whether an accused acted under the immediate influence of sudden passion “arising from an adequate cause.” Under § 19.06 the jury also may and should take into account “all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.” Appellant does not claim that the jury was not properly charged in the latter respect. Therefore, § 19.04(c) is not vague facially or as applied for the reasons claimed by appellant.

Other than the statement questioned, with the observations made, I join the opinion of the Court.

      . Cf. the concurring opinion of Judge Clinton with which this writer has no disagreement.

      . All emphasis is mine unless otherwise indicated.


author: MILLER, Judge. TEAGUE, Judge,

text:
    Ex parte Perry Gene PRUITT.
    No. 69375.
    Court of Criminal Appeals of Texas, En Banc.
    May 22, 1985.
    John Stauffer, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Gregg Long and Ruth Lown, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

MILLER, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P. The record reflects that applicant was convicted on a plea of guilty for the offense of aggravated robbery under V.T.C.A. Penal Code, § 29.-03(a)(2). Punishment was assessed by the court at 25 years confinement in the Texas Department of Corrections.

In his application for writ of habeas corpus, applicant alleges that his guilty plea was rendered involuntary because of a broken plea bargain. Specifically, applicant maintains that there was an understanding between him, his attorney, and the district attorney that his “good time” served would be considered when his parole eligibility was determined. This special consideration was necessitated by Art. 42.12, § 15(b), V.A.C.C.P., which disallows consideration of good time for parole purposes upon conviction for aggravated robbery. As a result of this understanding between the parties, the terms of the plea bargain were that applicant would plead guilty in exchange for a recommendation of confinement in the Texas Department of Corrections for 25 years. The record also reflects that all parties understood and agreed as a part of the plea bargain that there would be no affirmative finding of the use of a deadly weapon in order to avoid the one-third calendar “flat” time requirement of Art. 42.12, § 15(b), supra, before eligibility for parole.

Based on this understanding, applicant entered his plea of guilty to aggravated robbery. The one-third calendar time requirement, however, was not avoided since it applies when either a conviction for aggravated robbery or an affirmative finding of the use of a deadly weapon occurs. By implication, the record shows the trial court also misunderstood the law since it followed the “plea bargain” and did not enter an affirmative finding that a deadly weapon was used.

The record reflects and the trial judge agrees in his findings of facts and conclusions of law filed with this application, that this was indeed the understanding between the State and the attorney for applicant. The agreement between the parties concerning the avoidance of serving one-third calendar time before eligibility for parole, as evidenced from the record, elevates this agreement to the status of an element of the plea bargain. See Ex parte Evans, — S.W.2d — (1985) (Tex.Cr.App. No. 69,364, delivered this date). The issue here concerns a plea bargain entered into and agreed to, the terms of which were impossible to fulfill. “If applicant’s understanding of his parole eligibility is manifested as an affirmative part of the plea bargain and that understanding is relied on as an essential part of the quid pro quo for pleading guilty, then applicant’s plea is involuntary if that part of the plea bargain is not or cannot be carried out.” Ex parte Evans, supra. See also United States v. Lopez, 571 F.2d 1345 (5th Cir.1978); United States v. Hill, 564 F.2d 1179 (5th Cir.1977); Wooten v. State, 612 S.W.2d 561 (Tex.Cr.App.1981). A plea bargain that is broken or not kept renders the plea involuntary. Ex parte Holmes, 687 S.W.2d 363 (1985); Bass v. State, 576 S.W.2d 400 (Tex.Cr.App.1979); Joiner v. State, 578 S.W.2d 739 (Tex.Cr.App.1979); Washington v. State, 559 S.W.2d 825 (Tex.Cr.App.1977); McFadden v. State, 544 S.W.2d 159 (Tex.Cr.App.1976). See also Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 20 L.Ed.2d 427 (1971); and Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). Also, “... improper plea bargains render the plea involuntary.” Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1975), reh’g denied; Ex parte Huerta, — S.W.2d — (Tex.Cr.App. No. 69,352, delivered January 30, 1985); Garcia v. State, 682 S.W.2d 581 (Tex.Cr.App.1985); and Ex parte Young, 644 S.W.2d 3, 5 (Tex.Cr.App.1983).

We find that applicant’s plea was involuntary since the terms of the plea bargain were impossible to fulfill. The relief prayed for is granted. The judgment in Cause No. F80-6687-LNM is set aside. Applicant is ordered remanded to the Sheriff of Dallas County to answer the indictment in Cause No. F80-6687-LNM of the 194th Judicial District Court of Dallas County.

It is so ordered.

TEAGUE, Judge,

dissenting.

This is a post-conviction application for writ of habeas corpus that was filed in the trial court by Perry Gene Pruitt, applicant, that is before this Court pursuant to Art. 11.07, V.A.C.C.P.

A majority of this Court holds: “We find that applicant’s plea was involuntary since the terms of the plea bargain were impossible to fulfill.” It then orders that applicant is entitled to relief.

Because of the condition of the record that is before us, and, furthermore, because the joint statement of the attorneys who presently represent the applicant and the State of Texas, upon which the majority relies, is not based upon facts; instead, it is based upon conclusions of the parties, there is need for a full-scale evidentiary hearing to be conducted in the trial court.

The joint statement reflects, inter alia: “Therefore, although the State and Applicant entered into a written plea bargain agreement, the confusion concerning the terms of the agreement make it unclear exactly to what the parties were agreeing. [My Emphasis]. There was no meeting of the minds. Thus, there was no plea bargain.” This joint statement is totally unsupported by any facts in the record before us. The affidavit of the attorney who represented applicant states, inter alia: “In the confusion in the courtroom the day this case was tried, my client pled guilty to aggravated robbery and received 25 years imprisonment in the Texas Department of Corrections ... In my opinion, because of the confusion, there was no true agreement between my client and the State with regard to the terms of the plea offered ...” If there was “confusion” in the courtroom that day, pray tell, what on earth was the “confusion”?

An evidentiary hearing needs to be conducted in order that we can know exactly what occurred on the day applicant entered his plea of guilty.

The record before us clearly reflects that applicant was convicted on a plea of guilty to the charge of aggravated robbery, and that this occurred pursuant to the written “Plea Bargain Agreement” that is in the record before us, that was entered into by applicant, his attorney, and the prosecuting attorney. By the terms of the agreement, applicant agreed to plead guilty to the offense of aggravated robbery in exchange for the State recommending punishment to be assessed at twenty-five (25) years’ confinement in the Department of Corrections. In addition, it was agreed between the parties that “No finding of firearm exhibited” would be made by the trial judge. Thus, the record clearly reflects that there was a plea bargain agreement and that the agreement was in all things carried out.

Without a full-scale evidentiary hearing having been conducted, the majority holds that applicant’s conviction is void because of a broken plea bargain agreement. In light of the record before us, how can this Court state that there was a plea bargain agreement? The trial judge himself, who originally presided over the case, has expressly found that because of the confusion” that existed in the courtroom that day there was “no plea bargain.” If “confusion” reigned in the courtroom that day, how could there have been a valid plea bargain agreement? If there was “confusion” in the courtroom that day, before deciding whether to grant applicant relief, shouldn’t we at least know what the “confusion” was?

There is a right way and a wrong way to dispose of the issue that is before us. The right way is to remand this cause to the trial court in order that a full-scale eviden-tiary hearing might be conducted. Today, however, the majority takes the wrong way.

In light of the record that is before us, I cannot in good conscience vote to grant applicant relief on the basis that there was a broken plea bargain agreement. I respectfully dissent to the manner in which the issue that is before this Court is being disposed of by the majority.

ONION, P.J., joins.

      . Art. 42.12, § 15(b), V.A.C.C.P., provides in pertinent part:
      "... If a prisoner is serving a sentence for the offenses listed in Section 3f(a)(l) [capital murder, aggravated kidnapping, aggravated rape, aggravated sexual abuse, or aggravated robbery ] of this Article or if the judgment contains an affirmative finding under Section 3f(a)(2) of this Article [that the defendant used, or exhibited a deadly weapon during the commission of an offense or during immediate flight therefrom the trial court shall enter the finding in the judgment of the court], he is not eligible for release on parole until his actual calendar time served, without consideration of good conduct time, equals one-third of the maximum sentence or 20 calendar years, whichever is less, but in no event shall he be eligible for release on parole in less than two calendar years. All other prisoners shall be eligible for release on parole when their calendar time served plus good conduct time equals one-third of the maximum sentence imposed or 20 years, whichever is less.” [Emphasis supplied.]

      . The trial judge also found that there was confusion concerning the terms of the agreement and applicant’s plea. To have the effect of releasing applicant from the one-third calendar time requirement, the bargain would have required that both the "aggravated” portion of the offense and the "affirmative finding" be dropped. This action would also have the effect of reducing the offense to (unaggravated) robbery, a second degree felony, rendering the 25 year plea bargain an impossible agreement since the maximum allowable time penalty for the second-degree felony offense of robbery is 20 years.


author: BROOKSHIRE, Justice.

text:
    Lucille RIGHI, Appellant, v. The STATE of Texas, Appellee.
    No. 09-83-182A CR.
    Court of Appeals of Texas, Beaumont.
    Nov. 15, 1984.
    Discretionary Review Refused July 3, 1985.
    See also, Tex.App., 689 S.W.2d 910.

      Donald M. Brown, D.O. Van Burén, Con-roe, for appellant.
    James Keeshan, Dist. Atty., Conroe, for appellee.
   OPINION

BROOKSHIRE, Justice.

Appellant was found guilty by a jury of intentionally and knowingly, by omission, engaging in conduct that caused serious physical deficiency and impairment to her natural child, who is younger than fourteen years of age, by failing to provide necessary food and medical attention. The jury assessed punishment at six years in the Texas Department of Corrections.

In her first ground of error, Appellant argues that there was insufficient evidence to sustain the jury’s finding of guilt of knowingly and intentionally, by omission, engaging in conduct that caused serious deficiency and impairment to the child. The briefest sketch of this record lucidly demonstrates that the child suffered multiple injuries. Testimony from a physician showed she was suffering from battered child syndrome. She had four fractures and two large black eyes. The child had sustained serious second degree burns on her back. There was strong evidence that the child was being starved as a form of punishment. She had a protruding abdomen even when she was flat on her back which is a determinative sign showing protein energy malnutrition. There was also evidence of a skull fracture. Testimony showed that the child appeared quiet and withdrawn. Additionally, the record shows that Appellant did not attempt to take the child to a medical facility for treatment for the burns. We think the testimonies of the pediatrician, the radiologist and the Department of Human Resources case worker were sufficient to sustain the jury’s verdict that these deficiencies and impairments were caused by Appellant’s omissions. We find that the evidence in this case satisfies the requirements of Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983) and Freeman v. State, 654 S.W.2d 450 (Tex.Crim.App.1983). We overrule Appellant’s first ground of error.

Appellant argues in her second ground of error that the court erred in overruling Appellant’s motion for mistrial based on the ground that no instruction could cure the harm done by improper admission of Appellant’s involuntary statement resulting from custodial interrogation. The confession was admitted subsequent to a Jackson v. Denno hearing. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Appellant testified at trial that the confession was coerced. The State failed to rebut her contentions. The court withdrew the confession from evidence and instructed the jury to disregard and not to consider it for any purpose.

In view of the nature and wording of Appellant’s statement and in view of the charge of the court, which was direct, clear and mandatory, we find no reversible error. Harper v. State, 533 S.W.2d 776 (Tex.Crim.App.1976). We believe that the jury could properly follow the judge’s instructions. We overrule Appellant’s second ground of error.

Appellant’s third and fourth grounds of error argue that the trial court erred in denying her motion for mistrial based on the admission of her husband’s extra-judicial confession and the cumulative effect of both Appellant’s confession and her husband’s extra-judicial confession. TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon 1979 and Supp.1984) provides that the limitations of the statute apply only to statements that are the product of custodial interrogations. Hence, a voluntary oral statement is admissible if it is not the “result of” or does not “stem from custodial interrogation”. May v. State, 618 S.W.2d 333 (Tex.Crim.App.1981). Generally, then, voluntary oral statements although spoken in the county jailhouse, are now admissible under Art. 38.22, supra. We overrule Appellant’s third and fourth grounds of error.

In grounds of error five and six, Appellant complains that the trial court refused to include requested charges on recklessly engaging or negligently engaging in the conduct of which Appellant was convicted. The testimony of Appellant indicates that she was fully aware of the burns on her child’s back and of the black eyes the child sustained as well as the other injuries the child had experienced. The record demonstrates that Appellant perceived that her care of the injuries was not proper. Further, testimony shows Appellant at first refused and only later reluctantly allowed the case worker from the Texas Department of Human Resources, when accompanied by officers from the sheriff’s office, to observe the entirety of the child’s body. It was then that the second degree burns on the child were discovered. For the accused to be entitled to a charge on a lesser included offense, the lesser included offense must be included within the proof necessary to establish the offense charged. Further, there must be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser offense. Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981). Reviewing this record coupled with the definitions of the culpable mental states found in TEX.PENAL CODE ANN. sec. 6.03 (Vernon 1974), we find that it was not error for the trial court to decline the requested charge on recklessly engaging or negligently engaging in the conduct of which Appellant was convicted. We overrule Appellant’s fifth and sixth grounds of error.

Appellant’s seventh ground of error argues that the court erred in overruling Appellant’s motion to suppress Appellant’s statement because it was not taken in compliance with Art. 38.22, sec. 2, supra. This court was presented with the same issue in Williamson v. State, 679 S.W.2d 523 (Tex.App.1983) (not yet published), rev’d on other grounds 672 S.W.2d 484 (Tex.Crim.App.1984). The confession forms in this case present no different problem from those found in Williamson, supra. We overrule Appellant’s seventh ground of error.

Finding no reversible error, we affirm the judgment of the trial court. See companion opinion of this date on Joseph Righi.

AFFIRMED.


text:
    Joseph RIGHI, Appellant, v. The STATE of Texas, Appellee.
    No. 09 83 182B CR.
    Court of Appeals of Texas, Beaumont.
    Nov. 15, 1984.

      See also, Tex.App., 689 S.W.2d 908.
    Donald M. Brown, D.O. Van Burén, Con-roe, for appellant.
    James Keeshan, Dist. Atty., Conroe, for appellee.
   OPINION

BROOKSHIRE, Justice.

Appellant was charged with injury to his natural child, who is younger than fourteen years of age. A jury found him guilty of engaging in conduct that caused disfigurement and deformity by burning her back by placing her under hot water; by omission, engaging in conduct that caused serious physical deficiency and impairment by failing to provide necessary food and medical care; and, by engaging in conduct that caused bodily injury to her by hitting her in the head with a stick. Appellant’s first ground of error contends there was insufficient evidence to sustain a finding of guilt. Upon review of the record before us, we find the evidence sufficient to sustain a guilty verdict by the jury. Appellant’s first ground of error is overruled.

Appellant’s second ground of error argues that no instruction could cure the harm done by improper admission of Appellant’s wife’s involuntary statement. Appellant did not file a motion for severance and, in effect, elected to be tried together with his wife, Lucille Righi. Appellant has no grounds to challenge the admission of his wife’s confession. In any event, the trial court withdrew that confession from evidence and instructed the jury to disregard the confession altogether and not to consider it for any purpose. Appellant’s second ground of error is without merit and is overruled.

Appellant’s third ground of error is that no instruction by the trial court could cure the harm done by improper admission of Appellant’s extra-judicial confession to a fellow jail inmate. We find that the trial judge strictly admonished the jury in his charge to the jury stating in part:

“... You are further instructed to disregard and not to consider for any purpose the testimony of [the fellow jail inmate].”

We believe that the jury could conscientiously and properly follow such an instruction and, therefore, we overrule Appellant’s third ground of error.

We find that Appellant’s fourth ground of error which complains of the cumulative effect of permitting into evidence Appellant’s wife’s confession and the testimony of the jail inmate is without merit and is overruled.

In Appellant’s fifth, sixth and eighth grounds of error he argues that the court’s charge was defective in that the court failed to charge on the lesser included offenses of recklessness and criminal negligence in the conduct of which Appellant was convicted. The paragraphs of the charge of which Appellant complains deal with the allegations that Appellant intentionally or knowingly engaged in conduct that caused disfigurement or deformity to the child and that Appellant intentionally or knowingly by omission, engaged in conduct that caused serious physical deficiency or impairment to the child. In accordance with our holding in the opinion regarding Lucille Righi’s similar contentions, we overrule Appellant’s fifth, sixth and eighth grounds of error.

Appellant’s ground of error seven is without merit and is overruled.

We find that Appellant’s grounds of error nine and ten attacking the sufficiency of the evidence are without merit and are overruled.

Finding no reversible error, we affirm the judgment of the trial court. See companion opinion of this date on Lucille Ri-ghi’s appeal.

AFFIRMED.


author: BURGESS, Justice. DIES, Chief Justice,

text:
    Brenda Marie BURNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 09-84-057 CR.
    Court of Appeals of Texas, Beaumont.
    Dec. 19, 1984.

      Harold Laine, Jr., Beaumont, for appellant.
    John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.
   OPINION

BURGESS, Justice.

The Appellant was convicted by a jury for the offense of murder and punishment was assessed at life in the Texas Department of Corrections. Appeal has been perfected to this Court.

Appellant urges a single ground of error: “The trial court erred in denying Appellant’s Motion for Mistrial concerning the State’s comment on the failure of the Appellant to testify made during the State’s argument at the punishment phase of the trial.”

The appellant complains of a particular assertion and about the argument in general. That portion of the argument germane to the ground of error follows:

“[PROSECUTOR]: ... But what, if anything, have we heard to really tell you about this Defendant’s background? Have we heard anything good about that background? Have we heard any good reputation witnesses, her mother, her preacher or her priest or somebody like that? No, we haven’t. All you have heard about is the evidence that was brought in the first phase of the trial about what she did in this particular instance and then about her being on probation for arson of a habitation. That is about it. So you have got to kind of look closely to find out about this particular Defendant”
“What do you find out from what she used the Rape Crisis Center for? Is it reasonable, looking at the testimony, that she called them to use them when she needed money, sleeping pills, medication, glasses or whatever? Did she use them? We all know that she was a paid informant to the undercover police. What does that tell you? We also know that she is a liar. Not only did she tell at least two different stories to different people in the case but by your verdict—
“[DEFENSE ATTORNEY]: Your Honor, I’m going to object to that as an assertion on the part of the State at this time as to any testimony that may or may not have come from the Defendant as being a direct assertion on her failure to testify.”
“THE COURT: Sustain the objection as far as it may relate to the Defendant. ...”
“[DEFENSE ATTORNEY]: I request that the jury be instructed to disregard it, Your Honor.”
“THE COURT: The jury will disregard the last comment by [prosecutor].”
“[DEFENSE ATTORNEY]: I move for a mistrial, Your Honor.”
“THE COURT: Mistrial denied.”
“[PROSECUTOR]: I am certainly not speaking about this Defendant’s failure to testify. I don’t want you to take it that way. But you heard the testimony from various witnesses as to what she had told them. You saw upon what the Defense based their case. I think you can see that that wasn’t the truth.”
“Now what else do we know? Is the Defendant dangerous? Forty-six stab wounds. Is she dangerous? But what have you been able to tell about her during this trial? And again, I am not talking about anything about testifying or not testifying. I don’t want you to take it that way because I’m not talking about that. But have you have [sic] an opportunity to observe this Defendant during the trial? You get a chance to look at her? She has had a little pad out part of the time and has been writing some notes. But have you seen any emotion at all?
“[DEFENSE ATTORNEY]: Your Honor, we are going to object to that as being improper argument at this time and outside the record. Also it is an attempt to inflame the minds of the jurors, it is improper.”
“THE COURT: Overruled.”
“[PROSECUTOR]: Have you seen any emotion at all? Have you seen her express any sorrow or anything like that, even when these pictures—
“[DEFENSE ATTORNEY]: I’m going to object to that as being a direct assertion on the failure of the Defendant to testify, Your Honor.”
“THE COURT: Objection sustained.”
“[DEFENSE ATTORNEY]: I ask that the jury be instructed to disregard, Your Honor.”
“THE COURT: The jury will disregard the last comment by the Prosecutor.”
“[DEFENSE ATTORNEY]: Move for a mistrial.”
“THE COURT: Mistrial denied.”
“[PROSECUTOR]: Have you seen her as she is sitting there — and again, I am not talking about — I hope that I have made that clear — about anything about testifying — as she sits in the courtroom have you seen anything, even when the photographs of the body were being introduced into evidence? She show anything besides just sitting there being cool? Probably not cool, more cold.”

Appellant’s counsel made his initial objection to language which we believe, the jury would not naturally and necessarily take as a comment on the defendant’s failure to testify. Davis v. State, 670 S.W.2d 255 (Tex.Crim.App.1984). Therefore, no error was committed. This led to the prosecutor taking the defensive on the issue and making a specific disclaimer about alluding to the appellant’s failure to testify.

The next trial objection was a general objection as to improper argument. This objection was insufficient to preserve error. Houghham v. State, 659 S.W.2d 410 (Tex.Crim.App.1983). Appellant’s counsel follows with an objection that the State’s comment “is an attempt to inflame the minds of the jurors_” This objection was overruled. When the State continued on the lack of emotion theme, an additional objection as to commenting on the appellant’s failure to testify was made. This objection was sustained, and the jury was instructed to disregard the comment. Hawkins v. State, 660 S.W.2d 65 (Tex.Crim.App.1983) involved such a comment on the lack of emotion displayed by a defendant and held an instruction to disregard was sufficient to cure any error. See also Turner v. State, 504 S.W.2d 843 (Tex.Crim.App.1974).

Appellate courts are, as Judge Teague commented in a concurring opinion in Davis, supra at 257, “almost on a weekly basis ... exposed to improper prosecutorial jury arguments”, and a great many fall into the area complained about here. Generally, the defense counsel makes his objections to the prosecutor’s arguments, pointing out an alleged comment on the defendant’s failure to testify. The State responds, usually by denying such a claim to the Court and then disclaiming to the jury. All of this, in front of the jury, further compounds the error, if any. Trial courts would be well advised to require all counsel to make these types of objections and responses outside the hearing of the jury, thus avoiding further harm.

In reviewing the prosecutor’s entire argument particularly the comments previously addressed, we find the comments were not ones the jury would naturally and necessarily take as a comment on appellant’s failure to testify. Appellant’s ground of error is overruled. The conviction is affirmed.

AFFIRMED.

DIES, Chief Justice,

dissenting.

I respectfully dissent for the following reasons.

Where not invited, the prosecutor has no business emphasizing to the jury that his argument is not to be taken by them (the jury) as a comment on the defendant’s failure to testify. This is just a roundabout way of making such a comment. In the case at bar, as set forth in the majority opinion, the prosecutor three times made such an argument to the jury. To this writer, this clearly violates the spirit of TEX. CONST. art. I, sec. 10; TEXCODE CRIM.PROC.ANN. art. 38.08 (Vernon 1979); Myers v. State, 573 S.W.2d 19 (Tex.Crim.App.1978), and the authorities cited therein.

In the TEX. CONST art. I, sec. 10, interp. commentary (Vernon 1984), we find, at 443:

“In declaring that the accused shall not be compelled to give evidence against himself, the Constitution guarantees immunity from self-incrimination. Such immunity is granted to prevent repetition of certain inquisitorial proceedings once practiced in England. The principle is hereby established that no one shall be compelled to give testimony which may expose him to prosecution for crimes. Hence, an accused cannot be required to take the stand himself, nor can he be forced to testify. His failure to do so cannot be taken as a circumstance against him and counsel are not permitted to comment thereon. Unless he voluntarily becomes a witness, he is completely immune from inquiry_” (emphasis supplied)

This is not a “technicality” but a bedrock of our conviction. Unless and until the appellate courts speak out clearly and positively rejecting this “negative” way of getting the condemned comment before the jury, some prosecutors will continue to use it. See Nordyke v. State, 682 S.W.2d 589 (Tex.App.—Beaumont, 1984), petition for discretionary review filed Oct. 17, 1984.

This is an erosion we should not tolerate. I would reverse this case and remand it for a new trial.