author: W.C. DAVIS, Judge.

text:
    Brenda Joyce ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 62710.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 27, 1985.

      E. Brice Cunningham, Dallas, for appellant.
    Henry Wade, Dist. Atty., Stanley Kee-ton, Gerald Banks and Gerry Holden Meier, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.

      .Appellant seems to argue that her version of the murder must be refuted beyond a reasonable doubt in order to corroborate the accomplice testimony. That is not the standard for corroboration. The independent evidence links appellant with the murder.

   OPINION

W.C. DAVIS, Judge.

A jury convicted appellant of murder and assessed her punishment at confinement for life.

Appellant raises eight grounds of error, including a challenge to the sufficiency of the evidence. We turn first to the sufficiency issue.

Appellant contends that the evidence is insufficient to support her conviction because the testimony of her accomplice and co-defendant, Valerie Campbell, is not corroborated.

Valerie Campbell testified that she was seventeen years of age and had known appellant for about seven years. During the early morning hours of Saturday, July 15, 1978, appellant and Campbell sat in a Denny’s restaurant in Dallas and discussed Campbell’s possibilities for renting a house. Appellant told Campbell that she would take her to see Martha Lou Boggs, a “real estate lady”, to whom Campbell could talk about renting a house. Appellant told Campbell that she had lived with Boggs when she (appellant) was pregnant with her first child. Appellant and Campbell left Denny’s, drove around for a little while, and stopped at a Tom Thumb grocery store where appellant bought some Drano and syringes. Appellant did not say anything to Campbell about her purchase.

Campbell and appellant drove to Bogg’s house about 9:00 a.m., knocked on the door, and yelled through the window. Getting no answer, they went around to the back where a woman, later identified as Mrs. H.L. Burris, told them Mrs. Boggs was not at home. Appellant spoke to Burris and then called to Campbell, who was sitting in the car, to come inside Burris’s house. After waiting inside the house for awhile, appellant wrote a note and asked Burris to give it to Boggs.

Appellant and Campbell left the house just as Boggs drove up in a pickup truck, accompanied by two men. The men dropped her off and left. Appellant introduced Campbell to Boggs and they all went inside Boggs’s house. Boggs discussed the rental of a house with Campbell and talked with appellant. Boggs drove them, in their car, a blue and white Cadillac, to look at a house. A short time later they returned to Boggs’s house.

Campbell was feeling ill and told appellant that she was ready to go. Boggs agreed that they should go. Appellant then said to Boggs, “Bitch, I remember what you did to me when I was pregnant, when I was staying with you.” Boggs was sitting at her desk as appellant walked behind her, closed the curtains, and stabbed her in the neck with some syringes in which she had put Drano. Boggs stood up and wrestled with appellant. Appellant told Campbell to put something over Boggs’s mouth to stop her screams. Campbell put a towel over Boggs’s mouth. Appellant grabbed a crowbar that was near the fireplace and hit Boggs in the head with it, knocking her to the floor. Appellant hit Boggs several more times until Boggs stopped screaming and lay on the floor moaning.

Campbell was holding Boggs’s hands at this time to prevent her from using them. Appellant cut a cord off a lamp and tied Boggs’s feet, while Campbell used a telephone cord to tie her hands. Appellant also put a stocking or sock into Boggs’s mouth and tied another one around her head and mouth. They dragged Boggs into the bathroom and hog-tied her. Boggs spit one of the gags out of her mouth and told appellant she loved her and not to kill her. Appellant said “Bitch, you are going to die,” and kept telling Boggs to hush. Finally, appellant grabbed a steak knife from the kitchen and stabbed Boggs several times on the left side of the body and around her heart. She also cut Boggs’s wrist. Appellant told Campbell to stab Boggs and Campbell told her she could not do it. Campbell said that she did stab Boggs in the right shoulder. Campbell testified that after appellant had stabbed her appellant said, “Bitch, this is for leaving me in this house when you went out of town and leaving me home and I was pregnant.”

Campbell testified that appellant refilled two syringes with Drano while they were in the bathroom and told Campbell to inject Boggs, which Campbell did. Appellant then went through the house, ransacking it. Campbell said that appellant pulled open the file cabinet looking for some check books.

They wrapped Boggs’s body in a sheet, dragged it into the garage, and put it in the trunk of Boggs’s car. Campbell testified that appellant slammed the lid of the trunk closed, went back inside, and ransacked the house again. Appellant then took off her blue pants suit, rolled it up in something, and threw it into the closet. She put on a black pants suit belonging to Boggs, and also put on another wig. Campbell testified that appellant then drove her to the hospital because she was feeling very ill. Campbell testified that she was admitted to the hospital and that appellant visited her the next day and told her she was going back to the house to take things from Boggs’s house.

The court found and the jury was so instructed, that Campbell was an accomplice witness as a matter of law. Appellant contends that the conviction rests solely on the accomplice testimony and is insufficient to sustain her conviction. We now examine the evidence other than the accomplice testimony to determine if the other evidence tends to link appellant with the commission of the offense. Brown v. State, 672 S.W.2d 487 (Tex.Cr.App.1984).

Mrs. H.L. Burris, a neighbor of the deceased, testified that shortly after 9:00 a.m. on July 15, 1978, appellant knocked on her patio door. Appellant was wearing a blue pants suit and had a wig on her head. Appellant asked Burris if she had seen Boggs. Burris told appellant that she had not seen her. Appellant asked Burris if she could come inside because it was hot outside. Burris agreed and appellant yelled across the alley to her co-defendant to back her car, a blue and white Cadillac, into the driveway and come into the house.

Appellant told Burris that Boggs was a good friend of hers, that she was worried about her and had called to see her. Appellant also said they wanted to see if Boggs could help her find a house. After waiting inside the house for twenty-five minutes, appellant wrote a note and asked Burris to give it to Boggs. Appellant and Campbell then left.

About five or ten minutes after the two left Burris’s house, Burris saw Boggs, appellant, Campbell, and a third person standing by a truck outside Boggs’s garage. The truck drove off and Burris walked over to Boggs’s house to give her the note that appellant had left. Burris walked through the open garage door and into the house. Boggs, appellant and Campbell were inside. Appellant took the note from Burris and Burris left. A little later Burris saw the three get into the blue and white Cadillac and drive off, with Boggs driving. They returned fifteen or twenty minutes later and went back inside the house.

Harold Scott, a police officer for the city of Dallas, testified that on July 17, 1978, he investigated a call concerning an open front door at the deceased’s house. When he walked up to the door he smelled an odor which was similar to that emitted from something that was dead. After getting no response to his knock he walked into the house. The house appeared to have been ransacked and Scott saw a blood stained sheet rolled up in a closet in one of the bedrooms. He also observed blood stains in the bathroom. Scott went into the garage, noticing that the source of the odor seemed to be the trunk of a green and white Cadillac. Scott called the Physical Evidence Section of the police department to the house and the trunk was opened, revealing the body of the deceased wrapped in a sheet.

Investigators from the police department found two bloodied steak knives on a table in one room, blood on the bottom sheet of a bed, and a blood stained sheet inside the closet. Contained in the sheet found in the closet, was a blue pants suit with blood stains on it, a bloodied telephone receiver, a short, black afro type wig, and a blood stained white ladies blouse. Blood stains were found all over the bathroom. The base of the telephone to which the blood stained receiver matched was found disconnected from the wall, on the floor of the bedroom. A syringe with clear liquid in it was lying on the floor beside the telephone.

Appellant’s fingerprint was found on a file cabinet in the house. Investigator Glenn Thompson testified that he tested doorframes, doorknobs, papers — all items whose surfaces were conducive to latent prints, including the trunk of the Cadillac in which the deceased was found, and that none of the items checked, except the file cabinet, contained the latent prints of appellant.

Dr. Linda Norton, a forensic pathologist for the Dallas County Medical Examiner, testified that she performed an autopsy on the deceased. She testified that the body was wrapped in a sheet that was tied in the front. The body was well into decomposition on July 18, the day the autopsy was performed. The body was hog-tied, meaning that the hands and feet were bound separately and then were bound to each other. The body was also gagged and many articles of clothing were tied and wrapped around the mouth and neck. Norton said that various items were used to bind the victim’s hands and feet, including pieces of electric cord that had been pulled out of lamps.

Norton stated that at least fifteen blows had been struck on the victim’s head and face. She said that these blows could have been struck with a crow-bar. There were five stab wounds, four in the area of the left chest and left upper abdomen, and one isolated stab wound to the right shoulder. There was also a wound to the left wrist. Norton testified that the stab wounds could have been caused by State’s Exhibit No. 69, the steak knife mentioned previously. Several of the victim’s ribs were fractured and there was hemorrhaging in the muscles of the neck. Norton said that the hemorrag-ing could have been caused either by manual choking or by some of the ligatures that were wrapped tightly around the victim’s mouth and neck. The body was too badly decomposed to determine if there were any puncture marks from a syringe.

Norton stated that neither the blows to the head nor the stab wounds, alone, would have caused death. All of those injuries and the massive amount of bleeding caused by them, combined with the gagging and binding which restricted respiration, caused death. Norton could not tell if the victim was dead when she was placed inside the trunk of the car. She said that if the victim was not dead at that time, the heat and injuries would have killed her.

Dr. Norton testified that she attempted to test for Drano in the blood of the deceased and found a higher incidence of alkalinity around the wrist wound. Norton said that this could indicate the presence of Drano in the blood, but that she would not consider it presumptive evidence and would not, therefore, interpret the alkalinity to be caused by Drano.

Sarah Williams, a forensic serologist at the Southwestern Institute of Forensic Sciences in Dallas, testified, inter alia, that a syringe was tested and that the trace of insoluble residue in the syringe could not be identified, but that it did not have the characteristics of Drano or other caustic materials.

Appellant’s statement was offered in part by the State and in part by appellant. In her statement appellant said that she and Campbell drove Bruce Long’s blue and white Cadillac over to Boggs’s house on Saturday, July 15, 1978. Appellant said that she had lived with Boggs and that Boggs was a real estate lady who could help Campbell find a house.

Appellant’s confession was consistent with the testimony given by Burris and Campbell up to the part about coming back to Boggs’s house after looking at a house. Appellant stated that she and Campbell drove back to Bruce Long’s apartment after looking at the house, and told Long about it. Long, Campbell, appellant, and two other men, whom she knew as Slim and Shorty, drove back to Boggs’s house. Slim stated that Boggs had money and started pushing her around. Appellant said that Boggs started yelling and Slim pushed her into the bathroom. She saw him stab Boggs in the chest with a steak knife while Long hit her with something. Appellant said that she told them to leave Boggs alone and Slim hit her in the eye and told her to get into the front room. She said that she got blood on her pants suit at that time. The men then wrapped Boggs in a sheet, carried it out to the garage and put it in the trunk of Boggs’s car. Appellant said that the men ransacked the house and then all of them left. Long paid money to a man whom appellant did not know, and they went back to Boggs’s house in his pickup truck. They loaded a king size bed, a color television, and a stereo into the truck and took them to Long’s apartment.

Police found several items, including a bed and stereo, that belonged to Boggs, in Bruce Long’s apartment.

Charles Hallam, an investigator with the Dallas police department, said that after the police investigated the case they did not believe appellant’s version of the murder as far as it concerned the three men. They believed the murder was committed by appellant and Campbell. He said that police talked to Roy Lee Washington, the man who helped load the furniture. Hallam said that only appellant and Washington were present when the furniture was taken, and that only Campbell and appellant were present when Boggs was murdered.

Appellant testified that she did not hit or stab Boggs and that Slim, Shorty and Long murdered Boggs. Appellant claimed that on July 19, she had called the police to tell them what had happened to Boggs and that two uniformed officers arrived and she told them about the murder. While those officers were there two investigators also arrived with a warrant for appellant’s arrest for the murder. Appellant also claimed that Slim, Shorty, and Long had taken her to Lake Ray Hubbard and beaten her and then tied her up and left her in a bathtub in a vacant apartment until Wednesday, July 19. Appellant had a black eye when she was arrested.

Officer W.M. Slaughter testified that on July 19, at about 9:00 p.m., he went to a certain address in response to an assault or rape call. Appellant told him she had been beaten, raped, bound and gagged for two to three days. Slaughter said that appellant did not say anything about a murder. Two investigators arrived shortly thereafter with an arrest warrant for appellant.

Sergeant William Parker testified that he arrested appellant on the evening of July 19. He said that she told him that she had been kidnapped, taken out to Lake Ray Hubbard, and raped by two individuals. Parker said that appellant told him that she had been released that afternoon, July 19, by her assailants. Appellant did not tell Parker anything about a murder.

Officer Fred MacDonald and Officer Ricardo Silva testified that at about 6:15 a.m. on Monday, July 17, they responded to a disturbance call at a home. Appellant was arguing quite vehemently with her boyfriend and his mother because they would not give appellant’s child to her. Appellant was dressed in a white nurse’s uniform and told the officers that she had just come from work and wanted to pick up her child. Appellant also said that her boyfriend had hit her in the face. MacDonald said that appellant’s cheek bone was sort of puffy. He also said that the boyfriend attempted to hit appellant while the police were there. MacDonald said that appellant did not say anything about a murder or about having been abducted, raped or tied up in a bathtub in an abandoned apartment.

Juanita Bollinger testified that she had hired appellant to work as a nurse’s aide. Bollinger said that she spoke with appellant by telephone on July 17 and fired her at that time for absenteeism. Bollinger also said that appellant came to see her either the next day, July 18, or July 19. Bollinger did not notice any physical injuries on appellant at that time.

The court found and the jury was so instructed, that Campbell was an accomplice witness as a matter of law. Appellant contends that the conviction rests solely on the accomplice testimony and is insufficient to sustain her conviction. Appellant erroneously contends that sufficiency should be reviewed by examining evidence independent of the accomplice testimony to determine whether or not this evidence is sufficient beyond a reasonable doubt to convict appellant.

Art. 38.14, V.A.C.C.P. provides that:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense. (Emphasis added)

The test to determine the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then examine the testimony of other witnesses to ascertain if there is inculpatory evidence which tends to link the accused with the commission of the offense. Brown v. State, 672 S.W.2d 487 (Tex.Cr.App.1984); Mitchell v. State, 650 S.W.2d 801 (Tex.Cr.App.1983). The corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Shannon v. State, 567 S.W.2d 510 (Tex.Cr.App.1978).

The testimony of Mrs. Burris was consistent with Campbell’s and places appellant at the scene of the murder with the accomplice and in the presence of the victim. Burris did not see any other people, besides Campbell, with appellant. Appellant’s own testimony places her at the scene of the murder when it occurred. Appellant was the only one who knew the victim. Evidence established that the blue pants suit appellant was wearing on the day she visited Mrs. Boggs was found covered with blood and rolled up in a bloody sheet.

Proof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction. Brown, supra; Passmore v. State, 617 S.W.2d 682 (Tex.Cr.App.1981). Appellant’s blood-stained pants suit was found at the scene; her fingerprint was found on the file cabinet; appellant was in the company of the accomplice at or about the time of the murder, Rodriquez v. State, 508 S.W.2d 80 (Tex.Cr.App.1974). There is no shortage of evidence tending to connect appellant with the murder. Compare Brown, supra, Passmore, supra, Shannon, supra, and Rodriquez, supra. The ground of error is overruled.

In two grounds of error appellant complains of the admission into evidence of various photographs. The first group of thirteen photographs to which appellant objects shows the scene of the murder, including various blood stained articles like the steak knives and appellant’s pants suit, blood spots in various rooms in the house, and the open trunk of the car containing the victim’s body wrapped in a sheet. These photographs are not particularly gruesome and depict the scene as the police found it two days after the murder. Testimony concerning the scene of the murder in the instant case is admissible. Therefore, photographs depicting the same are also admissible. Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983); Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979); Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972).

The second set of photographs of which appellant complains show the decomposed body of the victim, including the wounds, lacerations and discolorations resulting from the brutal murder. The photographs depict the body as it appeared when discovered by police. A verbal description of the same is admissible, thus making admission of the photographs proper. See Luck, supra, Burks v. State, 583 S.W.2d 389 (Tex.Cr.App.1979), and Denney v. State, 558 S.W.2d 467, 471 (Tex.Cr.App.1977). The grounds of error are overruled.

Appellant alleges that the trial court erred in admitting her oral statement concerning the whereabouts of her co-defendant when appellant was arrested. The record shows that the trial court conducted a Jackson v. Denno hearing in regard to the admissibility of appellant’s confession. The court ruled that the oral statement was admissible under Art. 38.22, Sec. 1(e). However, during the trial before the jury the State never elicited either the statement itself or the existence of the statement. The record reveals that appellant’s attorney elicited the statement during questioning of one of the police officers. Appellant introduced the evidence of which she now complains: No error is presented. See Withers v. State, 642 S.W.2d 486 (Tex.Cr.App.1982); Womble v. State, 618 S.W.2d 59 (Tex.Cr.App.1981).

Appellant’s next objection concerns the admission of her written statement. Essentially appellant’s contention is that the trial court erred in permitting the State to withdraw portions of the statement after having admitted the entire statement.

The record reflects that the State introduced the statement through Officer Ha-llam. Hallam read the beginning of the statement wherein appellant identified herself and knowingly and intelligently waived her rights under Art. 38.22, V.A.C.C.P. Hallam then testified that after he recorded appellant’s statement and investigated the case, he determined that some of the things contained in the statement were not true. After this testimony, the prosecutor asked the court for some time to excise these portions determined to be untrue, “because of the court’s prior ruling ...” Defense counsel objected because the entire statement had already been offered and received into evidence. Defense counsel argued that the State was therefore bound to disprove any exculpatory statements. Palafox v. State, 608 S.W.2d 177 (Tex.Cr.App.1980). The court permitted the State to withdraw portions of the statement because the witness had not testified to those portions and the jury had not heard them.

The State is allowed to introduce part of a statement or confession and a defendant may then introduce the rest of the statement. Harrington v. State, 547 S.W.2d 616 (Tex.Cr.App.1977); Art. 38.24, V.A.C.C.P. In the instant case the prosecutor intended to do that, and believed, mistakenly, that the court had admitted the statement in part. The jury had not seen or heard any of the withdrawn portions. Appellant subsequently introduced the excised portions of the statements.

The trial court acted within its discretion in withdrawing something from evidence which had never gotten before the jury. We see no error in its action. The ground of error is overruled.

Appellant contends that the trial court erred in failing to grant her motion for mistrial after the State questioned a defense witness about two misdemeanor theft cases for which the witness had received probated sentences for which the probationary period had expired.

During the guilt/innocence stage of trial, Paula Barlett, a defense witness, testified that she was currently confined in the Dallas County jail and had been confined in jail at the time appellant and Campbell were also confined there. Barlett admitted that she had been in jail for awhile and that she had been previously convicted of theft by passing a worthless check. The prosecutor then questioned Barlett about another misdemeanor theft conviction. Barlett told him that she was given probation on that one and another one, and that the probationary period had expired about two weeks previously, on November 3.

During the ensuing discussion out of the presence of the jury, the prosecutor told the court that he had just checked the computer records and they showed that Barlett received thirty days in jail on one of the cases and that the other was probated. The court recessed, checked the computer record, and determined that the prosecutor was mistaken. Barlett had received thirty days probated for six months on both misdemeanor cases.

The court instructed the jury to totally disregard the testimony about the misdemeanors in which Barlett had received probation. Appellant’s motion for mistrial was overruled.

A witness may be impeached by showing that she has been finally convicted of a felony or a misdemeanor involving moral turpitude, or has been given a suspended sentence which has not been set aside, or has been given probation which has not expired. Art. 38.29, V.A.C.C.P. Kirvin v. State, 575 S.W.2d 301 (Tex.Cr.App.1978). In the instant case Barlett’s probationary term had expired. The prosecutor erred in impeaching her with that conviction. However, given the trial court’s instruction to the jury to disregard the testimony, and given Barlett’s testimony that she had been finally convicted in one case, had been in jail for awhile, and was currently in jail, we do not believe the error was harmful. See Hamel v. State, 582 S.W.2d 424 (Tex.Cr.App.1979); Waller v. State, 581 S.W.2d 483 (Tex.Cr.App.1979). The ground of error is overruled.

Appellant’s next ground of error concerns various portions of the State’s argument to the jury made at the guilt/innocence stage and at the punishment stage. Appellant contends that in each instance the State was arguing outside the record.

The first argument of which appellant complains concerns the prosecutor’s statements that appellant was lying when she told them that she was tied up in a tub for four days, and that just as that was a lie, so were the exculpatory parts of appellant’s statement to the police. He said that the State did not offer those parts because they knew they were lies. Appellant’s objection was sustained and the jury was instructed to disregard the statement. Appellant did not move for a mistrial. Appellant received all the relief requested. Nothing is presented for review.

The court sustained appellant’s objection to the State’s argument that the police checked out appellant’s statement about the three men and did not file cases on anybody except appellant and Campbell. Once again, nothing is presented for review because appellant received all the relief requested.

The State then argued the following: Do you really believe for one minute that if there were any evidence that Bruce, Slim and Shorty had anything to do — had anything to do with what is involved in this case, this gruesome picture, that you saw, the pictures that we saw, Dr. Norton pointed out to you, that they wouldn’t be here? They wouldn’t be on trial? Do you really think that?
* * * * * *
You know that that is not correct, under a reasonable deduction from the evidence, is that the Dallas Police Department has let, in this city, three of the most brutal murderers go around walking free since the 20th of July, that you are ever going to find. I just tell you, Ladies and Gentlemen, that just didn’t happen, and that is not the truth and that is not the facts in this case—

The court overruled appellant’s objection to the argument. Appellant contends that the argument is outside the record. The State replies that this statement was a response to appellant’s earlier argument that:

If you find this woman here guilty, Ms. Adams, guilty of this charge, then homicide will close the books on this case, because they will have two people, and there are three maniacs out here walking the streets and the next time we hear from them, somebody else will be dead.

Appellant then argued that other evidence demonstrated that these other men were involved.

We note first, that testimony at trial brought out appellant’s version that three men murdered Boggs. Testimony was also adduced that the police had investigated appellant’s version and found it to be untrue. Therefore, the prosecutor’s argument was proper not only as a summation of the evidence and as a reasonable deduction from the evidence, but also as a response to appellant’s earlier argument. Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973). The court properly overruled appellant’s objections.

Appellant also contends that her objection to the following argument made by the State was erroneously overruled:

Now, let’s talk about Brenda Adams and see what you know about her. You know that she is the only one of all the names we mentioned who knew Martha Lou Boggs before she was murdered on the 15th of July, 1978. You know that she selected this victim and perhaps it started out as—

There was evidence that appellant bought syringes and Drano before visiting Boggs and that appellant stabbed Boggs with the syringes. The record also shows that appellant was the only one who knew Boggfe and that she made statements suggesting her motive for killing Boggs was that Boggs had left her at home while she was pregnant. The argument that appellant selected Boggs was a reasonable deduction from this evidence. The ground of error is overruled.

Appellant also contends that certain statements made by the prosecutor during his argument to the jury at the punishment stage were outside the record.

Evidence at the punishment phase showed that appellant had five prior convictions, one for theft, and four involving weapons or assault. In his argument to the jury the prosecutor explained that he recommended twenty years confinement for Campbell and that “[i]t was a decision I made, and I felt like it had to be done, but that is certainly the lowest, and I only did that because as we talked about her earlier, she is a juvenile and was a juvenile at the time, and she admitted her guilt from the start, and she has testified and she doesn’t have these five things behind her, either.”

Appellant objected that there was nothing in the record to indicate what Campbell’s record was. The court sustained the objection and instructed the jury to disregard the statement. Appellant’s motion for mistrial was overruled.

In light of the evidence introduced concerning appellant, and in light of the fact that the argument was an explanation of the prosecutor’s punishment recommendation for Campbell, rather than an argument directed at inflaming the jury against appellant, we believe the court’s instruction to disregard was sufficient to cure error in the argument. Johnson v. State, 583 S.W.2d 399 (Tex.Cr.App.1979).

Finally, appellant contends that the court erroneously overruled her objection to the following:

You ask yourselves, what is the best for Dallas County, and that is all of us, everybody in here, as opposed to Brenda Adams—

The State replies, and we agree, that the statement was a proper plea for law enforcement. Stone v. State, 574 S.W.2d 85 (Tex.Cr.App.1978); Hicks v. State, 545 S.W.2d 805 (Tex.Cr.App.1977). The grounds of error are overruled.

Appellant contends that the trial court erred in finding that appellant used a deadly weapon, to-wit, a crowbar. The docket sheet contains the court’s finding that appellant used a deadly weapon, and the sentence contains a notation at the top of the page to the same effect. However, there is no recitation in the judgment concerning the use of a deadly weapon.

An affirmative finding that a deadly weapon was used must be made by the jury when the jury is the trier of fact. Barecky v. State, 639 S.W.2d 943 (Tex.Cr.App.1982). The jury found appellant “guilty of murder, as charged in the indictment.” Neither the indictment nor the charge to the jury mentions a deadly weapon. The court’s finding as noted on the docket sheet and on the sentence, was improper since no affirmative finding of a deadly weapon was made by the jury. Ba-recky, supra.

Because there is no such recitation in the judgment we presume that the improper notations in the docket sheet and sentence will not affect appellant’s confinement. See Art. 42.12, Sec. 15(b), V.A.C. C.P. We reform the sentence by ordering the notation regarding the deadly weapon deleted. Joles v. State, 563 S.W.2d 619 (Tex.Cr.App.1978).

The judgment is affirmed.

      . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

      . Under current law that section is Art. 38.22, Sec. 3(c), V.A.C.C.P.


source: Caselaw Access Project

author: W.C. DAVIS, Judge. TEAGUE, Judge,

license: Public Domain

text:
    Ex parte Clint Warren HOWARD.
    No. 69,167.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 27, 1985.
    James P. Finstrom, Garland, for appellant.
    Henry M. Wade, Dist. Atty., and R.K. Weaver, Asst. Dist. Atty., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W.C. DAVIS, Judge.

This is an application for post-conviction writ of habeas corpus pursuant to Art. 11.07, V.A.C.C.P.

Applicant was convicted of burglary of a building. Pursuant to a plea bargain, adjudication was deferred and applicant was placed on probation. During the probation, applicant was accused of aggravated robbery. Pursuant to a second plea bargain, applicant pled “guilty” to the robbery and “true” to the allegations in the State’s motion to revoke the unadjudicated probation. No punishment recommendation was to be made by the State, but the terms of the two offenses were to run concurrently. The court assessed punishment in each case at 12 years’ confinement.

Applicant brings us four contentions related to the burglary conviction, but we granted leave to file in order to address only two of them.

Applicant contends that he was denied the right to appeal the judgment of conviction for burglary; and so he was. Applicant pled guilty in the cause pursuant to a plea bargain; his right to appeal as thus limited to those complaints brought forth by pre-trial motions of which there were none, and those matters for which the court gave its permission to appeal. Art. 44.02, V.A.C.C.P. To the extent he wishes to appeal the decision to proceed to adjudication, he is barred by Art. 42.12, V.A.C. C.P., Sec. 3d(b). That section provides that, upon proceeding to adjudication, appeal proceeds as if adjudication had not been deferred. If adjudication had not been deferred, applicant would have had to seek permission to appeal in the instant case. The court would have been authorized to deny the right to appeal; we see no reason it could not do so in the instant case.

Applicant’s final contention is that the use of a magistrate to accept applicant’s plea to the motion seeking adjudication, and his judicial confession to the probation violations alleged was in violation of Art. 1918c, V.A.T.S., Sec. 4(b), which states:

In no event may a judge refer to a magistrate a criminal case permitting the magistrate to preside over a trial on the merits, either with or without a jury.
Art. 1918c, V.A.T.S., Sec. 4(a) provides:
The judge of a court having a magistrate appointed as provided by this Act may refer to the magistrate any criminal case for proceedings involving:
(1) negotiated pleas of guilty before the court;
(2) bond forfeitures;
(3) pretrial motions;
(4) post conviction writs of habeas corpus;
(5) conducting examining trials;
(6) any other matters that the judge deems necessary and proper, except as otherwise provided by Subsection (b) of this section.

Sections 5(a)-5(c) and 7(a)-7(c) of the same article provide:

5. (a) Except as provided by Subsections (b) and (c) of this section, a magistrate to whom a case is referred may:
(1) conduct hearings;
(2) hear evidence;
(3) compel the production of relevant evidence;
(4) rule on the admissibility of evidence;
(5) issue summons for the appearance of witnesses;
(6) examine witnesses;
(7) swear witnesses for the hearing;
(8) make findings of fact on the evidence;
(9) formulate conclusions of law;
(10) rule on pretrial motions;
(11) recommend the rulings, orders, or judgment to be made in the case;
(12) regulate all proceedings in a hearing before the magistrates; and
(13) do all acts and take all measures necessary and proper for the efficient performance of the duties required in the order of referral.
(b) The order of referral may limit the powers of the magistrate and direct the magistrate to report only on specific issues, do particular acts, or receive and report on evidence only. The order may set the time and place for the hearing, prescribe a closing date for the hearing, and provide for a date for the filing of the magistrate’s findings.
(c) A magistrate appointed under this Act to whom a case is referred may not enter a ruling on any issue of law or fact of which the determination thereon could result in dismissal or require the dismissal of a pending criminal prosecution. A magistrate may, however, make findings, conclusions, and recommendations on such issues, within the scope of the order of referral.
7. (a) On the conclusion of the proceedings, the magistrate shall transmit to the referring court all papers relating to the cases involved, together with the findings, conclusions, orders, recommendations, or other actions taken.
(b) The referring court may modify, correct, reject, or reverse any action taken by the magistrate, or recommit it for further information, as the court may deem proper and necessary in the particular circumstances of the case.
(c) If no modification, correction, rejection, reversal, or recommittal is made by the referring court, the actions taken by the magistrate become the decree of the court.

In the instant case, the magistrate took applicant’s plea and judicial confession, and proposed a judgment which was adopted by the court pursuant to Sec. 7(c).

Applicant insists that the magistrate’s actions in receiving his plea and confession were tantamount to presiding over a trial upon the merits, which is specifically prohibited by Sec. 4(b). But what the magistrate did was no more than would have been done in accepting a negotiated plea before the court pursuant to Sec. 4(a)(1), and we hold that a hearing to proceed to adjudication is one of the other matters contemplated by Sec. 4(a)(6). Where, as here, the judgment of the court is an independent action of the court and the magistrate’s role is limited to advisory and fact-finding functions as provided by Art. 1918c, we see no error in permitting the magistrate to preside over the hearing to proceed to adjudication.

The relief sought is denied.

ONION, P.J., dissents.

TEAGUE, Judge,

concurring and dissenting.

This is a post-conviction application for writ of habeas corpus filed on behalf of Clint Warren Howard, applicant. See Art. 11.07, V.A.C.C.P. Howard is the same defendant as the one in Howard v. State, our no. 0291-84, which case is pending before this Court on appellant’s petition for discretionary review. This Court has granted Howard’s petition for discretionary review in order to review the decision of the Dallas Court of Appeals that held that because a magistrate was used in that cause, pursuant to Art. 1918c, V.A.C.S., that this did not, standing alone, void the applicant’s conviction in that cause. See Howard v. State, 667 S.W.2d 265 (Tex.App.—Dallas 1984). Over my objection, the majority of this Court refuses to consolidate these two causes for review purposes, even though they contain one central issue, namely, whether Art. 1918c, V.A.C.S., the Dallas Magistrate’s Act, is unconstitutional, either in general or as applied. To the action of the majority in refusing to consolidate these causes, I respectfully dissent. I also dissent to the majority’s refusal to discuss whether the statute in general is constitutional.

The general validity of Art. 1918c, supra, is also before this Court in petitions for discretionary review that have been granted in Jones v. State, our number 428-84, (State’s petition for discretionary review was granted on October 10, 1984); Henry v. State, our number 707-84, (Appellant's petition for discretionary review was granted on November 7, 1984); and Scott v. State, our number 502-84, (State’s petition for discretionary review was granted on November 7, 1984).

Because I am a firm believer that piecemeal litigation is the antithesis of judicial economy, and does not gain respect from members of the Bench and Bar of this State, I also dissent to the failure of this Court to consolidate all of these cases and decide the issue, whether Art. 1918c, supra, is in general a valid statute.

In Kelley v. State, 676 S.W.2d 104 (Tex.Cr.App.1984), this Court reversed the decision of the Dallas Court of Appeals that had held that the actions of a Dallas County Magistrate, who was acting pursuant to Art. 1918c, supra, and who had conducted the defendant’s hearing and denied his application for probation, was in violation of the Constitution of the State of Texas. See Kelley v. State, 669 S.W.2d 329 (Tex.App.—Dallas 1983). The majority of this Court, in our Kelley v. State, supra, implicitly held that as long as what is presented to a magistrate does not involve contested issues, and as long as the record reflects that the regular district court judge approved what the magistrate had done, then, as applied, the statute is not unconstitutional.

In this instance, a majority of this Court, implicitly adopting what the majority of this Court held in our Kelley, supra, holds that “what the magistrate did was no more than would have been done in accepting a negotiated plea before the court pursuant to Section 4(a)(1), and we hold that a hearing to proceed to adjudication is one of the other matters contemplated by Section 4(a)(6). Where, as here, the judgment of the court is an independent action of the court and the magistrate’s role is limited to advisory and fact-finding functions as provided by Art. 1918c, we see no error in permitting the magistrate to preside over the hearing to proceed to adjudication.”

Howard asserts the following, inter alia, in his writ application: “(2) Petitioner was tried by a court without jurisdiction and in violation of Article 1918c, V.A.C.S. in that the evidence which was adduced in support of the State’s motion to adjudicate his conviction was heard without agreement on the part of the Petitioner before an appointed magistrate and not before a district judge in violation of the State of Texas Constitution and Article 1918c, Sections 4(b) and (c). Petitioner was denied his right to trial before a duly qualified judge of this State. In this regard, Petitioner would show that his adjudication was a trial on the merits on the issue of punishment and that no plea bargain agreement affected the punishment assessed by the court.”

The record in this cause reflects that on September 4, 1981, Howard, the applicant, pursuant to a plea bargain agreement, entered a plea of guilty to committing the offense of burglary of a building. See V.T.C.A., Penal Code, Section 30.02(a)(1). Hon. Kelley Loving, the duly elected judge of the 282nd Judicial District Court of Dallas County, presided. Thereafter, Judge Loving, acting pursuant to Art. 42.12, Section 3d(a), V.A.C.C.P., which statute has been held by this Court to be constitutional, see McNew v. State, 608 S.W.2d 166 (Tex.Cr.App.1980), deferred further proceedings without an adjudication of guilt, and placed applicant on probation for a period of three (3) years.

The record does not reflect that within thirty (30) days after applicant entered his plea of guilty, and after Judge Loving deferred further proceedings, that applicant requested Judge Loving adjudicate his guilt. See Art. 42.12, Sec. 3d(a), supra. Thus, from a legal standpoint, the matter temporarily became final. At that time, applicant had not been convicted of the charge to which he had pled guilty. See Ex parte Shillings, 641 S.W.2d 538 (Tex.Cr.App.1982).

Notwithstanding that there is no appeal from an order deferring the adjudication of defendant’s guilt, see McDougal v. State, 610 S.W.2d 509 (Tex.Cr.App.1981), nevertheless, “After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.” Art. 42.12, Sec. 3d(b), V.A.C.C.P.

On September 1, 1982, the State filed a motion to proceed with an adjudication of guilt. On September 7, 1982, pursuant to the State’s Motion to Adjudicate, applicant entered a plea of “true” to the State’s motion to adjudicate before Hon. John Ellis, who was then acting as a magistrate pursuant to Art. 1918c, supra. Magistrate Ellis granted the State’s motion to adjudicate and adjudicated the applicant’s guilt by finding him guilty. However, Judge Loving, not Magistrate Ellis, assessed applicant's punishment at twelve (12) years’ confinement in the penitentiary.

Applicant did not appeal.

In a sworn post-conviction application for writ of habeas corpus filed in our cause number 69,167 by the Hon. James Fin-strom, a Garland attorney, it was alleged, inter alia, that the proceedings that related to the adjudication of the deferred plea of guilty before Magistrate Ellis were void because, inter alia, “Petitioner was tried by a court without jurisdiction and in violation of Article 1918c, V.A.T.S., in that the evidence which was adduced in support of the State’s motion to adjudicate his conviction was heard without agreement on the part of petitioner before an appointed magistrate and not before a district judge in violation of the Constitution of the State of Texas and Article 1918c, Sections 4(b) and (c). Petitioner was denied his right to trial before a duly qualified judge of this State. In this regard, Petitioner would show that his adjudication was a trial on the merits on the issue of punishment and that no plea bargain agreement affected the punishment assessed by the court.”

The trial court, after finding that the State’s brief that was filed by the District Attorney in Kelley v. State, 669 S.W.2d 329 (Tex.App.—Dallas, 1983), was persuasive, and further finding that “All that the Magistrate did with respect to the proceeding was to hear the plea [of true] and find that the evidence supported the State’s motion to proceed to adjudication of guilt,” rejected the applicant’s contention that the adjudication proceedings conducted by Magistrate Ellis were void, and recommended that applicant not be granted any relief.

When a defendant has had his guilt deferred, and he does not personally move to have his guilt adjudicated within thirty (30) days, and the State thereafter moves to adjudicate his guilt, what this means legally is that although the defendant might have at sometime in the past entered a plea of guilty or nolo contendere, he is then before the court only to have his guilt adjudicated and punishment assessed, as if the deferred adjudication had never occurred. There is no punishment hearing as provided for by the provisions of Art. 37.-07, V.A.C.C.P. Also see McDougal v. State, 610 S.W.2d 509 (Tex.Cr.App.1981) (Teague, J., Dissenting Opinion).

It is true that Magistrate Ellis accepted the applicant’s plea of true to the State’s motion to adjudicate, that he found that the evidence supported the State's Motion to Proceed to Adjudication of Guilt, and further found applicant guilty, “as charged in the indictment.” This occurred without objection and by agreement of applicant. '

In this instance, as to the original proceedings, Judge Loving heard the evidence and found as a fact that the evidence substantiated applicant’s guilt, a finding required by Art. 42.12, Section 3d(a), supra. Thus, Magistrate Ellis’ decision to proceed to an adjudication of guilt was not predicated upon, or even concerned with, the evidence pertinent to applicant’s guilt; that evidence had already been heard, evaluated and found sufficient by Judge Loving. However, what Magistrate Ellis was deciding was whether applicant should be permitted to remain in an unadjudicated status or incur the numerous stigmas of a formal adjudication. The magistrate’s decision was grounded on activities by applicant after Judge Loving had found that he had committed the offense with which he was initially charged.

Art. 42.12, Sec. 3d, supra, provides that if a defendant who has been placed on “deferred probation” is alleged to have violated the terms or conditions of his probation, he “may be arrested and detained as provided in Section 8 of this Article.” Section 8 provides what “the court” might do. Recently, in Kelley v. State, supra, this Court stated and held the following: “The Court of Appeals found that, contrary to the appellant’s claim, Art. 1918c did not create ‘courts’ with independent jurisdiction, but simply authorized a procedure whereby magistrates, acting as surrogates and not judges, are appointed to assist the district court judges in certain limited matters. We agree with the Court of Appeals on this issue.”

A proceeding to revoke probation is not a “trial,” as that term is used and contemplated by the Constitution in regard to criminal cases. Lynch v. State, 159 Tex.Cr.R. 267, 263 S.W.2d 158 (1953). Also see Cross v. State, 586 S.W.2d 478 (Tex.Cr.App.1979); Branch v. State, 465 S.W.2d 160 (Tex.Cr.App.1971); Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774 (1951). In the latter case, this Court stated the following: “The convict surrenders no right, privilege, or consideration for the clemency extended. In accepting the clemency, he does so under the conditions upon which it is extended. Obviously, therefore, the proceeding to revoke probation is not a trial, as that term is used and contemplated by the Constitution in reference to criminal cases, and is not a proceeding required to be conducted as such a trial.” (776).

I agree with the majority that a hearing on a State’s motion to adjudicate is not “a trial on the merits.”

Under our present law, see Art. 42.12, supra, if a defendant has been placed on “regular” adult probation, but at a later date the probation is ordered revoked by the trial court, the defendant would then be required to serve his sentence in the penitentiary, subject, of course, to his right to appeal the order revoking his probation. The review by an appellate court of an order revoking a defendant’s probation is limited to a determination of the question whether the trial judge abused his discretion in revoking the order granting probation. Lynch v. State, supra.

However, when it comes to adjudicating the defendant’s guilt, when the proceedings have been deferred, the effect of adjudicating the defendant’s guilt is not the same as when a defendant’s probation has been revoked, because even though the defendant’s guilt is adjudicated, the trial court is still permitted to place the defendant on “regular” adult probation, provided the punishment assessed does not exceed ten (10) years, whereas if the defendant’s probation is ordered revoked, the trial court must sentence the defendant to serve his sentence in the penitentiary.

Although this Court has yet to expressly state that there is no difference between the rights a defendant might have regarding a revocation proceeding and the rights a defendant might have when confronted with a motion to adjudicate, it would appear that there is no meaningful distinction between the two.

The majority states that there was a plea bargain agreement in this cause. However, this statement is only true to a certain extent. The State did agree that the punishment that would ultimately be assessed would be identical and would run concurrently with the punishment that would ultimately be assessed in applicant’s companion case. Assuming that this constituted a “plea bargain agreement,” nevertheless, what everyone has overlooked is that this did not implicate a “negotiated plea of guilty,” for the simple reason that in this cause applicant had already entered a plea of guilty and the only issue that was before the trial court as a result of the State’s motion to adjudicate being filed was whether the trial court should adjudicate applicant’s guilt and find him guilty. Even assuming that the magistrate had the lawful authority under Art. 1918c, supra, to hold a hearing on the State’s motion to adjudicate, the one thing that everyone has overlooked is that once the decision to adjudicate was approved by the trial judge, the trial judge, contrary to a decision to order a defendant’s probation revoked, still had the option of placing the applicant on “regular” probation, and not causing him to serve his sentence in the penitentiary, provided, that any punishment assessed did not exceed ten (10) years. Art. 42.12, supra. Although the record is silent whether applicant or his attorney urged the trial court not to assess the punishment at more than ten (10) years and to place applicant on “regular” probation, in light of the fact that the trial judge assessed punishment at twelve (12) years, it is clear that he implicitly rejected such argument, if it was made. Furthermore, as this is a collateral attack upon the proceedings before the magistrate, whether the trial judge did or did not consider the permissible alternative punishment, in this instance, such is without meaning.

Therefore, in light of this Court’s decision in Kelley v. State, supra, the majority correctly rules against applicant on the issue of whether the magistrate was authorized to conduct a hearing on the State’s motion to adjudicate the applicant’s guilt.

As previously noted, applicant also attacks the constitutionality of Art. 1918c, supra, asserting that the statute is in violation of provisions of the Texas Constitution. See Art. 5, Section 1, Texas Constitution. Also see Kelley v. State, supra, (Teague, J., Dissenting Opinion.)

It is, of course, true that an appellate court will not address the constitutionality of a statute unless it is necessary to determine the case. Ex parte Salfen, 618 S.W.2d 766 (Tex.Cr.App.1981). Thus, in this instance, in light of the above, it is necessary that this Court make the determination whether the statute is constitutionally valid. Because the majority refuses to discuss the issue, I dissent.

Having given the matter a great deal of thought, I would hold that because the statute does not create “courts,” because the statute specifically limits the powers of the magistrates, because the statute clearly prohibits the magistrates from hearing contested matters, and because the statute prohibits the magistrates from performing ultimate judicial functions, I would vote to hold the statute constitutional. As to the validity of any act performed by a magistrate, I would decide that issue on an ad hoc basis.

For the above reasons, I respectfully dissent.

      . The bargain, as understood by the parties and the court, effectively limited the maximum time for the aggravated robbery conviction (normally life or 99 years) to the 20 year maximum for burglary of a building, a second-degree felony.

      . It should be kept in mind that his plea of "true” to the allegations of the motion to proceed to adjudication was also made pursuant to a plea bargain.


author: DIES, Chief Justice.

text:
    Robert Lee LADAY, Appellant, v. The STATE of Texas, Appellee.
    No. 09-83-056 CR.
    Court of Appeals of Texas, Beaumont.
    Feb. 29, 1984.
    Rehearing Denied March 7, 1984.
    Discretionary Review Granted Oct. 17, 1984.
    Douglas Barlow, Beaumont, for appellant.
    John R. DeWitt, Asst. Criminal Dist. Atty., Beaumont, for appellee.
   OPINION

DIES, Chief Justice.

This is an appeal from a conviction for burglary of a building, with punishment enhanced by a prior conviction for aggravated assault. A jury found appellant guilty and the enhancement paragraph to be true. The jury assessed punishment at thirty years in the Texas Department of Corrections. Appeal has been perfected to this Court.

Appellant’s first two grounds of error state that the trial court erred in admitting State’s Exhibits Thirty-two and Thirty-three in evidence. Exhibit Thirty-two was a certified copy of the judgment and sentence of a Robert Lee Laday in Cause No. 36820 in the 252nd District Court of Jefferson County, Texas, for aggravated assault, which had been alleged in the indictment for enhancement purposes. Exhibit Thirty-three was a certified copy of a judgment and sentence of a Robert Lee Laday in Cause No. 37774 in the 252nd District Court of Jefferson County, Texas for burglary. The contention is that there was no evidence offered by the State to identify appellant as the person so convicted in these exhibits. Of course, it is the State’s burden “to go further and show by independent testimony that appellant was the identical person convicted under each of the ... judgments and sentences_” Vessels v. State, 432 S.W.2d 108, 116-117 (Tex.Crim.App.1968). Daniel v. State, 585 S.W.2d 688, 690-691 (Tex.Crim.App.1979), sets out specifically four ways this can be done. The State counters that appellant’s objection to the exhibits at trial (where he was represented by a different attorney than his attorney in this appeal) was not the same as that urged on appeal and, therefore, not properly preserved for review, citing McIlveen v. State, 559 S.W.2d 815 (Tex.Crim.App.1977); Lejeune v. State, 538 S.W.2d 775 (Tex.Crim.App.1976).

As to Exhibit Thirty-two, which had been alleged in the indictment for enhancement purposes and which the jury found as true, no objection was necessary. The State simply did not carry through its burden of proof.

However, appellant’s trial counsel objected to the admission of Exhibit Thirty-two, informing the court that appellant had already pled guilty to the enhancement allegation of the indictment. This would, we believe, satisfy the second method of proof found in Daniel v. State, supra, at page 690 (stipulation or judicial admission).

As to Exhibit Thirty-three, it is true as contended by the State, that there was no specific objection at trial of the failure to offer identification. Where the State offers such evidence, the defendant should either contest it or be found to waive its admission. But here, the State simply introduced the exhibit without any proof whatsoever that appellant and the person named in the exhibit were one and the same. We have examined numerous Texas cases on what is and what is not fundamental error.

We have found no case precisely on point. We believe and find that when the State introduces a previous conviction and offers absolutely no proof of identification, the error is fundamental. For this reason, the ground of error is sustained and the case is remanded for a new trial.

Reversed and Remanded.

      . See authorities cited in 26 TEX.JUR.3d, Criminal Law §§ 3919 and 3949 (1983).


author: CADENA, Chief Justice.

text:
    CITY OF SAN ANTONIO, Appellant, v. Joyce Perez HIGLE, Appellee.
    No. 04-82-00228-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 29, 1984.
    Rehearing Denied Jan. 31, 1985.
    Second Rehearing Denied Feb. 25, 1985.

      Nelson Clare, Asst. City Atty., San Antonio, for appellant.
    Dennis P. Bujnoch, Tinsman & Houser, Inc., San Antonio, for appellee.
    Before CADENA, C.J., and CANTU and DIAL, JJ.
   OPINION

CADENA, Chief Justice.

Defendant, City of San Antonio, appeals from a judgment, based partially on a jury verdict, awarding defendant, Joyce Perez Higle, $59,000.00 for injuries sustained by her when she was shot in the hand by Detective Tackett, a San Antonio police officer.

The jury attributed 75% of the causative negligence to defendant and 25% to plaintiff, and fixed the total amount of plaintiff’s damage at $59,000.00. The trial court, on plaintiff’s motion, disregarded the finding concerning plaintiff’s negligence and awarded plaintiff the full amount of the damages found by the jury.

On February 28, 1980, Tackett and five other officers attempted to execute a search warrant authorizing the search of apartment 413 at the Habitat Apartments in San Antonio. They were met by gunfire from the occupants of the apartment and one officer was wounded. One police officer went to apartment 411, adjacent to 413, which was occupied by plaintiff. The officer asked plaintiff to call an ambulance and to furnish a chair for the wounded officer. He explained the situation to plaintiff and warned her to stay in the apartment and to stay away from the window. Plaintiff called her mother and her uncle and they told her to hide in the closet and stay there.

When the officer spoke to plaintiff the gunfire continued. After a short time the gunfire stopped. One of the men in apartment 413 telephoned police headquarters and said that the men in the apartment would surrender as soon as their attorney arrived on the scene. The police dispatcher relayed this information to the officers on the scene and gave them instructions to “contain” the situation.

Some 20 or 30 minutes after the cessation of the gunfire, plaintiff became curious and decided to look out the window to determine if the police were still there. As she approached the window she began to move the curtain so that she could see what was happening. Detective Tackett, who was stationed about 15 feet from the window, saw the movement of the curtain and immediately fired his shotgun, striking plaintiff in the hand. At no time had any shots been fired from plaintiff’s apartment, nor is there any evidence indicating that the officers had any reason to fear that a threat to their safety could possibly emanate from plaintiffs apartment.

Defendant urges that the judgment must be reversed because of four instances in which it was suggested to the jury, or stated to the jury, that Lt. Smith, a San Antonio police officer, told plaintiff that she would not have to pay her hospital and medical expenses. These incidents were:

1. During voir dire examination of the prospective jurors, plaintiff’s attorney stated that the evidence would show “that a couple of the officers wanted to pay [plaintiff’s] medical bills....” The trial judge sustained defendant’s objection and instructed the prospective jurors not to consider the remark, but defendant’s motion for mistrial was overruled.

2. While Lt. Smith was being examined by appellee, he was asked whether, during one of the lieutenant’s visits to the hospital, there was “some mention of the fact that the city would take care of” plaintiff’s medical expenses. Defendant’s objection was sustained and the jury was properly instructed, but defendant’s motion for mistrial was overruled.

3. Counsel for plaintiff, while still examining Lt. Smith, asked, “What did you say, if anything, to Mrs. Higle about her medical expenses while she was in the hospital?” Defendant objected and, before the court ruled on the objection the question was withdrawn. Defendant again moved unsuccessfully for a mistrial. Lt. Smith did not answer either question concerning payment of plaintiff’s medical expenses.

4. Plaintiff was allowed to testify, over defendant’s objection, that Lt. Smith told her that she did not have to worry about anything, that “they would take care of” her bills and that if she wanted anything she had only to ask for it.

We are not permitted to reverse a judgment because of error committed in the course of the trial unless we are of the opinion that the error complained of amounted to such a denial of the rights of the appellant “as was reasonably calculated to cause and probably did cause the rendition of an improper judgment....” TEX.R.CIY.P. 434. To determine whether an error was reasonably calculated to cause and probably did cause rendition of improper judgment, the reviewing court must consider the entire record. Gomez Leon v. State, 426 S.W.2d 562, 565 (Tex.1968).

The statement by plaintiff’s counsel to the prospective jurors that the evidence would show that a “couple of” unidentified police officers wanted to pay plaintiff’s medical bills was promptly ruled improper by the trial court and the jury was instructed to disregard it. The same is true of the question inquiring of Lt. Smith if there had been some mention of the fact that defendant would pay such bills. The second question to Lt. Smith as to whether he had said anything to plaintiff concerning her medical bills was withdrawn following defendant’s objection. Whatever harmful inferences might have been drawn from the instances was of the curable type and was removed by the court’s instructions in the first two instances and by the withdrawal of the question in the third instance. Liberty Mutual Insurance Company of Texas v. Rawls, 358 S.W.2d 920, 931 (Tex.Civ.App.—Fort Worth 1962, no writ).

We agree that the admission of plaintiff’s testimony that Lt. Smith told her that “they” would take care of her medical expenses was error. Evidence concerning such offer is completely irrelevant unless the fact that the offer was made is intended to form the basis for an inference of admission of liability. Without extended discussion, it is sufficient to point out that there is not evidence which even suggests that Lt. Smith was authorized to make such an offer and admission on behalf of the city. Statements or declarations of an agent or employee are admissible against the principal only when they are made within the scope of his authority. There is no evidence of express authority, and the record does not disclose any evidence that Lt. Smith’s statement accompanied an authorized act or that it was closely enough connected with his performance of an authorized act to come within the meaning of that nebulous and much abused term, “res gestae.” 2 C. McCORMICK & R. RAY, TEXAS LAW OF EVIDENCE § 1164 (1956).

Plaintiff’s testimony was not admissible on the theory that it was evidence of a prior inconsistent statement offered for the purpose of impeaching Lt. Smith. Lt. Smith never denied making such a statement. In the absence of such a denial, plaintiff’s statement concerning the alleged offer does not contradict any portion of Smith’s testimony. 1 C. McCORMICK & R. RAY, op. cit. § 692.

However, in view of the ample evidence of negligence on the part of Detective Tackett, the officer who fired the shotgun blast which injured plaintiff, we cannot say that the admission of plaintiff’s testimony constitutes reversible error. The evidence establishes:

1.At the time plaintiff was injured, there had been no gunfire or other threat to the safety of the officers for 20-30 minutes.

2. There is no evidence of any activity originating in plaintiff’s apartment which might be considered a threat to the officers. No shots had been fired from such apartment.

3. Tackett fired when he had seen only a movement of the drapes, making no effort to learn the identity of the person at the window.

4. According to San Antonio Police Department policy, the instructions to “contain” the situation meant that the officers were not to fire their weapons unless they were fired at or otherwise attacked or the “suspects” were attempting to escape. The evidence shows that apartment 413, from which the shots at the officers had been fired, was being closely observed by the officers present and that all means of exit from such apartment were being observed. There is no evidence that any person had left apartment 413 or that any person had entered apartment 411, plaintiff’s apartment. The movement of the drapes in plaintiff’s apartment which prompted Tackett to fire is no evidence of an attack on the officers or of an attempt of any person in 413 to escape. It is clear from the evidence that the officer had no idea of the identity of the person at whom he fired.

Such evidence, particularly when viewed with the fact that the jury found that plaintiff had been guilty of 25% causative negligence, makes it clear that defendant has not met its burden of showing that plaintiff’s evidence probably resulted in the rendition of an improper verdict.

Defendant’s claim that it was entitled to an instructed verdict, based on the defense of governmental immunity, is grounded on the provisions of TEX.REY. CIV.STAT.ANN. art. 6252-19, § 14(8), the Texas Tort Claims Act (Vernon 1970 and Vernon Supp.1982-1983), which provides that the waiver of immunity contained in the statute does not apply “to any claim arising out of the action of an officer ... while responding to an emergency call or reaction to emergency situations when such action is in compliance with the laws and ordinances applicable to emergency action.” Defendant does not call our attention to any “laws” or “ordinaftces” with which Tackett’s actions in this case complied. Instead, the evidence shows that Tackett acted in violation of prescribed departmental procedures. Defendant has not brought itself within the provisions of § 14(8).

Defendant, contending that the question of the existence or non-existence of an emergency is a matter of law for the court to determine, argues that the trial court erred in submitting the question of emergency to the jury. Where the issue of emergency is raised by the evidence, the issue is one to be decided by the jury under proper instructions. Abalos v. Oil Development Company of Texas, 544 S.W.2d 627, 634 (Pope, J., Concurring) (Tex.1976); Yarborough v. Berner, 467 S.W.2d 188, 193 (Tex.1971). The evidence already detailed does not establish the existence of an emergency as a matter of law. Therefore, the court did not err in submitting the question of fact to the jury.

Defendant asserts that it was entitled to an issue on justification under TEX. PENAL CODE ANN. § 9.51 (Vernon 1974). This section justifies the use of force by an officer when he believes the use of such force is immediately necessary to make or assist in the making of an arrest or search, or to prevent or assist in preventing an escape after arrest. In view of the “containment order,” it cannot be said that Tackett discharged the firearm in an effort to make or assist in the making of an arrest or search. There is no evidence which furnishes a basis for a finding that Tackett had reason to believe that any person in plaintiff’s apartment was attempting to escape or attempting to prevent a search of apartment 413. Further, § 9.05 of the Penal Code provides that even if the use of force is justified, the actor is not entitled to the defense of justification if in using such force he recklessly injures or kills an innocent third person.

According to § 6.03(c) of the Penal Code, a person acts recklessly with respect to circumstances surrounding his conduct or the result of his conduct “when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” The risk “must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

Prior to the time the court prepared its charge, some discussion took place concerning the charge. Counsel for defendant at that time conceded that no issue should be submitted inquiring whether Tackett was aware that he was firing into plaintiff’s apartment because all of the evidence established that he had such knowledge at the time he fired. Defendant also pointed out that no issue should be submitted inquiring whether Tackett knew that plaintiff was in such apartment because the evidence conclusively established his knowledge of that fact. When these concessions are considered with the fact that Tackett had no reason to believe that firing into plaintiff’s apartment was necessary in order to execute the search warrant calling for the search of another apartment and no reason to believe that the movement of the drapes in apartment 411 indicated the need for the use of force against the occupant of that apartment in order to prevent the escape of the persons in another apartment, the refusal of a charge on justification was justified.

In any event, the question of justification is clearly in the nature of an affirmative defense, and the burden was on defendant to request its submission in writing in substantially correct wording. The record does not reflect such written request by defendant, and the court’s failure to submit an issue on justification cannot be ground for reversal. TEX.R.CIV.P. 279. While the exchange between defendant’s counsel and the court contains reference to submission of an issue which had been tendered, the tendered issue is not in the record.

Defendant’s complaint that there was ho evidence to support an award to plaintiff for loss of earning capacity is without merit. The evidence reflects a serious injury to plaintiff’s hand, resulting in permanent impairment and disfigurement. She suffered a 75% physical impairment of the ring finger, 7% permanent impairment of the left hand, an 6% permanent impairment of the upper extremity. She is unable to make a fist of her left hand; has difficulty in lifting objects; and continues experiencing weakness in her fingers. The evidence amply supports an award for loss of earning capacity.

The trial court did not err in submission of damage issues for mental pain and anguish separate from damages for disfigurement. Sax v. Votteler, 648 S.W.2d 661, 667 (Tex.1983).

We agree that the trial court erred in disregarding the jury finding that plaintiff was guilty of 25% causative negligence and awarding her the full amount of damages found by the jury. A trial court may disregard a jury finding only if there is no evidence to support such finding. Sanders v. Harder, 148 Tex. 593, 596, 227 S.W.2d 206, 209 (1950); Escamilla v. Garcia, 653 S.W.2d 58, 61 (Tex.App.—San Antonio 1983, no writ).

The evidence establishes that plaintiff was aware of the situation and the firing. The evidence establishes the existence of a dangerous situation, and plaintiff was told by several persons to stay away from the window. Such testimony clearly constitutes some evidence that plaintiff was aware of the danger and that her disregard of .the advice of the police and her relatives constituted negligence.

The judgment of the trial court is reformed to provide that plaintiff, Joyce Perez Higle, recover from defendant, City of San Antonio, the sum of $44,250.00. As so reformed, the judgment is affirmed.

Costs are taxed 80% against defendant, City of San Antonio, and 20% against plaintiff, Joyce Perez Higle.

ON MOTIONS FOR REHEARING

In this opinion we address only the continued insistence by appellant, City of San Antonio, that the trial court erred in refusing to submit an issue inquiring whether the police officer, Detective Tackett, was justified in using force under section 9.51 of the Penal Code. The portion of the opinion discussing this contention is subject to being interpreted as asserting that City failed to request an issue submitting this affirmative defense. As so interpreted, the opinion does not correctly reflect that which is shown by the record. The intention was to point out that the City had failed to request an issue in substantially correct form. While an issue was requested, it was not in substantially correct form.

The issue requested inquired whether the officer “believed that deadly force was immediately necessary to make or assist in making an arrest or search...”. The provisions of section 9.51 authorizing the use of deadly force provide that an officer is justified in using deadly force if he reasonably believes the “deadly force is immediately necessary to make an arrest or to prevent escape after arrest” if the officer reasonably believes that the conduct for which arrest is authorized included the use or attempted use of deadly force, or reasonably believes that there is a substantial risk that the person to be arrested will cause death or serious bodily injury to others if the arrest is delayed.

There is no provision in section 9.51 authorizing the use of deadly force in order to assist in the making of a search. Under section 9.51, an officer is permitted to use force to the extent that he believes the use of force is necessary to make an arrest or search. The issue requested by City would leave the jury to believe that the use of deadly force was justified if the officer believed that deadly force was necessary “to make or assist in the making of an arrest or search.” Insofar as the requested instruction authorized the jury to find that the use of deadly force was authorized when necessary to make or assist in making a search it was clearly erroneous and was properly refused.

The motions for rehearing are overruled.


author: SHUMPERT, Justice.

text:
    Ben McCALLISTER, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-00499-CR.
    Court of Appeals of Texas, Dallas.
    June 14, 1984.
    Rehearing Denied July 5, 1984.
    Discretionary Review Refused March 13, 1985.
    Michael Nelson, Lawrence Mitchell, Dallas, for appellant.
    Donald Davis, Dallas, for appellee.
    Before STOREY, STEWART and SHUM-PERT, JJ.
   SHUMPERT, Justice.

This is an appeal from a conviction of murder. Appellant contends that the trial judge committed reversible error in refusing to give the jury his requested instruction regarding the consideration of his written confession. We agree, and accordingly, we reverse.

It is undisputed that the trial judge instructed the jury on the voluntariness of the confession pursuant to TEX.CODE CRIM.PROC.ANN. art. 38.22 §§ 6 & 7 (Vernon 1979). Appellant contends, however, that the jury was improperly instructed because there was a fact issue as to whether he was warned that he could at any time terminate the interview during which he made his confession, and the jury was not instructed to consider whether he had received that warning.

During the trial, a police officer testified that he read appellant all of the warnings necessary for a written confession to be admissible under TEX.CODE CRIM.PROC. ANN. art. 38.22 § 2 (Vernon 1979). One of those warnings concerns the right to terminate the interview at any time. Appellant, however, testified as follows:

Q. Did they ever tell you that you could stop the interview at any time?
A. No.
* * * * * *
Q. He was the one who told you you don’t have to talk to us. You’ve got a right to remain silent. You’ve got the right to stop talking. You don’t even have to talk to us. That’s what Johnson told you. (emphasis added).
A. No; he never said that. No; he never said that.

We agree with appellant that a fact issue was raised.

The confession here had been found admissible by the trial judge. The instruction to be given the jury when there is evidence before it as to the voluntariness of the confession, however, relates to the jury’s consideration of the confession — not the confession’s admissibility. Moon v. State, 607 S.W.2d 569, 572 (Tex.Crim.App.1980); Scott v. State, 434 S.W.2d 678, 680 (Tex.Crim.App.1968), cert. denied, 395 U.S. 925, 89 S.Ct. 1781, 23 L.Ed.2d 242 (1969). If there is a fact issue regarding any of the article 38.22 warnings, and a proper request for an instruction regarding the issue is made, the jury must be instructed to consider the issue in determining the weight it gives the confession. White v. State, 289 S.W.2d 279, 281 (Tex.Crim.App.1956); Bandy v. State, 143 Tex.Cr.R. 457, 159 S.W.2d 507, 508 (1942); see Winegarner v. State, 505 S.W.2d 303, 304 (Tex.Crim.App.1974). The conflicting testimony here raised the fact issue of whether appellant was warned that he had the right to terminate the interview at any time. While appellant’s requested charge contained an instruction on that issue, the charge given to the jury did not. Appellant’s ground of error is sustained.

Reversed and Remanded.


author: PER CURIAM.

text:
    Rosalie D. SCHLIEMANN, Relator, v. Honorable Ruben GARCIA, Respondent.
    No. 04-84-00330-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 15, 1984.

      J.G. “Bumper” Homberger, Jr., Law Offices of Jacob G. Hornberger, Jr., Dallas, for relator.
    Emilio Davila, Jr., Teresa Hunter, Laredo, for respondent.
    Before CADENA, C.J., and ESQUIVEL and REEVES, JJ.
   OPINION

PER CURIAM.

In this application for writ of mandamus, relator, Rosalie D. Schliemann, seeks to vacate an order entered by the Honorable Ruben Garcia, Judge of the 49th Judicial District Court of Webb County, Texas, which interferes with the execution of the judgment and mandate of this Court. The writ will conditionally issue.

Relator sued Rosestone Properties, Inc. in the 49th Judicial District Court and obtained judgment against Rosestone in that suit in the amount of $44,859.76, with interest thereon at nine percent (9%) per annum from the date of the judgment. We affirmed the judgment, Rosestone Properties, Inc. v. Schliemann, 662 S.W.2d 49 (Tex.App.—San Antonio 1983, writ ref’d n.r.e.), and rendered judgment against Rosestone and the sureties on its superse-deas bond, Clementina G. Dryden and Edward J. Dryden, Jr. Rosestone’s application for writ of error to the Supreme Court was refused, no reversible error, on February 22,1984, and our mandate issued to the trial court on March 16, 1984. Relator then instituted proceedings in that court to collect her judgment. An execution sale on certain real properties which had been levied upon by the Webb County Sheriff was pending at the time this application was submitted.

The proceeding we are now concerned with, however, is relator’s application for a turnover order brought under the provisions of TEX.REY.CIV.STAT.ANN. art. 3827a (Vernon Supp.1984). The application alleged that Edward J. Dryden, Jr. and Clementina G. Dryden had borrowed approximately $50,000.00 from the International Bank of Commerce in Laredo in order to pay off the judgment, but then refused to pay the loan proceeds to relator. Relator sought an order requiring the Dry-dens to pay the proceeds to her. After an evidentiary hearing the court granted the application and signed an order on July 13, 1984, ordering the Drydens to turn over the $50,000.00 to relator within five days. They failed to comply.

Sometime between July 13 and July 20, Rosestone “Et Al” filed a motion to modify the July 13th order. The certificate of service shows that a copy of the motion was mailed to relator’s attorney on July 17. Relator’s attorney contends that he never received a copy of the motion. No notice setting a hearing on the motion appears in the record. The motion to modify sought credit against the amount owed by Rose-stone for a real estate lien note in the principal amount of $10,800.00 that was made payable to Edward Joseph Dryden, Jr., Trustee. Rosestone alleged that the note was matured and that it was signed by relator as maker. The motion sought credit not only for the principal amount, but also for $6,829.92 in interest and $1,762.99 in attorney’s fees. The court signed a modified order on July 20, 1984, which ordered Rosestone and the Drydens to turn over to relator or to the Webb County Sheriff the note marked “paid in full” along with $30,607.09 in cash, in full satisfaction of the judgment. The order further provided that upon delivery of the note and cash, all writs of execution on the judgment would be abated. Relator represented in her application for writ of mandamus that the sheriff informed her that the note and a check for $30,607.09 had been delivered to him.

The writ of mandamus will issue to compel compliance with the mandate of the Court of Appeals. TEX.REV.CIV. STAT.ANN. art. 1824 (Vernon Supp.1984); Curtis v. Nobles, 588 S.W.2d 687, 688 (Tex.Civ.App.—Amarillo 1979, no writ); Moore v. Ellis, 435 S.W.2d 951, 952-53 (Tex.Civ.App.—Dallas 1968, no writ). The district court has no jurisdiction to review, interpret, or enforce our mandate; it must observe and carry it out. Myers v. Myers, 515 S.W.2d 334, 335 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ dism’d). Its orders carrying out the mandate are ministerial. Id. Our mandate commanded the 49th Judicial District Court to observe our judgment “and in all things have it duly recognized, obeyed, and executed.” The trial court’s modified order failed to carry out our mandate. Rather, it was an unwarranted interference with its proper execution.

The purpose of the turnover statute “is to aid the diligent judgment creditor in obtaining satisfaction of his or her judgment in a timely manner.” Hittner, Texas Post-Judgment Turnover and Receivership Statutes, 45 TEX. B.J. 417 (1982). The statute itself' declares that the judgment creditor is entitled to aid from a court in reaching property of the judgment debt- or where the traditional methods of satisfying the judgment have proved inadequate. Article 3827a(a). The statute clearly was enacted for the benefit of judgment creditors, yet the proceedings at issue in this application for writ of mandamus have perverted that purpose to allow the judgment debtor to choose the manner in which it will satisfy the judgment.

Relator pleaded for the turnover of specific assets believed to be in the debtors’ hands. After a hearing, the court ordered the assets turned over. Yet, without any pleadings requesting an offset and without notice to relator, the court, on the basis of a motion to modify the judgment, allowed the debtors to set off a note against the cash ordered to be turned over. This order is clearly erroneous. It is contrary to legislature’s intent and purpose in enacting article 3827a, and is therefore improper.

The entry of the modified order was improper for another reason. The motion to modify is not a proper procedure for the collection of a note. The procedure utilized below effectively allowed debtors to collect the principal amount of the note, interest, and attorney’s fees, without pleadings, without citation or notice to relator, and without an evidentiary hearing. The note may be usurious; it may be a forgery; it may be uncollectible due to the running of the statute of limitations. Yet relator has been denied any opportunity to present these or any other defenses to the collection of the note. The issue of liability on a note cannot be litigated in this summary and ex parte procedure. Debtors’ only remedy is a suit on the note. Matter of Guardianship of Fleckenstein, 589 S.W.2d 788, 789 (Tex.Civ.App.—El Paso 1979, no writ).

Nor is there proof that Edward J. Dryden, Jr., was the holder or owner of the note. See Schindler v. Ag Aero Distributors, Inc., 502 S.W.2d 581, 585 (Tex.Civ.App.—Corpus Christi 1973, no writ). The note on its face discloses that the payee was Edward Joseph Dryden, Jr., Trustee. It is improper to offset a judgment with a note not held or owned by the judgment debtor. Randolph Junior College v. Isaacks, 140 S.W.2d 459, 459 (Tex.Civ.App.—Eastland 1940, no writ).

Not only did the modified order prevent the collection of the full amount of cash prayed for, it also, in effect, enjoined all execution proceedings, including the one pending at the time of the submission of this application. Such an order was improper for several reasons. The debtors have failed to present a sworn petition seeking injunctive relief. TEX.R.CIV.P. 682. The required filing, docketing, and citation procedures were not complied with. TEX.R.CIV.P. 685, 686. The writ of injunction did not comply with the requisites of TEX.R.CIV.P. 687. The injunction was not properly issued or served. TEX.R.CIV.P. 688, 689. There was no showing that the judgment creditor was insolvent. Holt v. Farley, 350 S.W.2d 659, 660 (Tex.Civ.App.—Texarkana 1961, no writ); Bullitt v. Jesse French Piano & Organ Co., 158 S.W. 782, 783 (Tex.Civ.App.—San Antonio 1913, writ ref’d). There was no showing that the debtors did not have an adequate remedy at law. Western v. Woods, 1 Tex. 1, 7 (1846).

Finally, the order is a clear and unjustified interference with the enforcement of our mandate. Unless it is shown that the judgment is void or that execution is somehow improper for another reason, the district court has no authority to rule that our mandate may not be enforced by execution or by any other lawful means.

We anticipate that Judge Garcia will immediately vacate his modified order signed July 20, 1984, will vacate his abatement contained in that order of any and all proceedings instituted to execute the judgment of this Court, and will refrain from interfering with any other lawful execution proceedings until our judgment and mandate are fully executed. Should Judge Garcia fail to comply with the ruling of this Court, the writ of mandamus will issue.


author: CARVER, Justice.

text:
    GREENBERG, BENSON, FISK AND FIELDER, P.C., Relator, v. Charles Ben HOWELL, Respondent.
    No. 05-84-01036-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 25, 1984.
    Robert M. Greenberg, Alvin R. Granoff, Ray HeLal, Donald G. Stanford, Edwin E. Wright, III, Ron Wren, Dallas, for relator.
    Tom McCorkle, Jr., Dallas, for respondent.
    Before CARVER, ROWE and SHUM-PERT, JJ.
   CARVER, Justice.

Relator, as attorneys of record in two unrelated cases pending in the 191st Judicial District Court, filed separate motions on June 18, 1984, and July 5, 1984, respectively, seeking recusal of the trial judge. No action thereon had been taken by the trial judge, Charles Ben Howell, the respondent herein, prior to the commencement of this mandamus action against him on September 26, 1984. Judge Howell, by letter of September 13, 1984, had advised the parties in both lawsuits that he had decided to withhold action on the motions pending the outcome of his election for a higher office, his reason being that if he were successful the motions would become moot and delay would be avoided. Relator contends Judge Howell’s inaction is not legally justifiable. Judge Howell offers no response in this proceeding. For reasons stated below, we sustain relator’s contentions. Mandamus is granted, but the writ is withheld, unless respondent Howell shall fail, by not later than October 29, 1984, to either recuse himself or enter an order of referral of both recusal motions to the presiding judge of the administrative district, and to file with the clerk of this court a certified copy of the order entered.

We start with the basic premise that although our appellate court lacks power to compel a trial judge to do a particular act involving or requiring discretion on his part, our court does have power to order a trial judge to exercise his discretion in some manner. Boswell, O’Toole, Davis and Pickering v. Stewart, 531 S.W.2d 380, 382 (Tex.Civ.App.-Houston [14th Dist.] 1975), Jones v. Smith, 470 S.W.2d 305, 307 (Tex.Civ.App.-Houston [1st Dist.] 1971). Because a trial judge may not arbitrarily halt trial proceedings, mandamus will lie to compel a trial judge to proceed to trial and judgment in a case pending in his court. For many years the statute granting our mandamus jurisdiction expressly so provided, TEX.REV.CIV.STAT.ANN. art. 1824 (Vernon 1964), and the recent amendment to that article expands rather than restricts this authority. TEX.REV.CIV.STAT.ANN. art. 1824 (Vernon Supp.1984).

We construe Judge Howell’s letter of September 13, 1984, as a refusal to proceed to trial. His letter reads in pertinent part as follows: “... I have decided to withhold action on the recusal motion until after the election. There will be no other proceedings in the case during that period.” We take judicial notice that the election referred to will take place on November 6, 1984. The effect of this decision will be to deny to the litigants that access to the justice system to which they are constitutionally entitled. U.S. CONST., amend. XIV, TEX. CONST. art. 1, para. 19. Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984).

In a published opinion in a recent mandamus action involving these same parties, we discussed the duty of a district judge to whom a recusal motion is addressed, citing TEX.REV.CIV.STAT.ANN. art. 200a § 6 (Vernon Supp.1984) and TEX.R.CIV.P. 18a (Vernon Supp.1984). Greenberg, Fisk and Fielder v. Charles Ben Howell, 676 S.W.2d 431 (Tex.App.-Dallas, 1984). In that opinion we held that, under both statute and rule, in the event a recusal motion is filed a district judge must promptly enter one of the two orders, which are permitted to him, i.e. recusal or referral. We now go a step further and hold that a trial judge, when presented with a recusal motion, has only the option to act in one of these two specified ways; he does not have the option of doing nothing. Judge Howell has clearly taken an option not available to him and by doing so has abused his discretion as a matter of law. We correct this abuse by conditionally granting the writ of mandamus on the terms above stated.

      . Tex.Sup.CtJournal, Vol. 28 p. 31, Oct. 20, 1984.