author: MILLER, Judge. CLINTON, Judge, TEAGUE, Judge,

text:
    Ruben AGUILAR, Appellant, v. The STATE OF Texas, Appellee.
    No. 004-84.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 9, 1985.

      Adolph Quijano, Jr., Robin Norris, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Nick 0. Martinez, Jr., Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty. and Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction of attempted burglary of a building with intent to commit theft pursuant to V.T.C.A. Penal Code, § 15.01(a) and § 30.02(a)(1). The trial court assessed punishment at ten years imprisonment, probated, and a $250.00 fine.

On direct appeal, the El Paso Court of Appeals reversed the conviction and remanded the case for a new trial because the trial court failed to instruct the jury on the lesser included offense of attempted criminal trespass. We granted the State’s petition for discretionary review to examine the correctness of that decision.

The evidence at trial consisted solely of the testimony of two State’s witnesses. The owner of the building, complainant Refugio Curtis, testified she left the premises of the “105 Lounge” at 12:30 a.m. on September 20, 1981, locking the door as she left. She further related that the door to the business was in good condition when she locked up, but when she returned at 9:30 a.m. on the same day, she discovered that the top portion of the wooden door had been pushed back. She also testified that she did not give anyone permission to enter the building after she had gone.

Officer Eduardo Robles, Jr., a police officer in the city of El Paso, testified that he and his partner were dispatched to 105 Rio Grande in response to a “burglary in progress” call. Upon arrival at the scene, he observed two subjects standing in the recessed doorway to the 105 Lounge. The two individuals had their backs to the street and were facing the door to the bar. Officer Robles testified that he could not tell what they were doing at that time. As the two officers approached the suspects in a marked police vehicle, the two individuals began to run. After brief foot pursuit, they were apprehended and placed in a back-up police vehicle. Appellant was one of the arrested suspects. The officers then inspected the door to the 105 Lounge and discovered the top portion of the wooden door had been pushed back.

The appellant did not testify nor offer any defensive evidence.

Criminal trespass can be a lesser included offense of burglary of a building. Day v. State, 582 S.W.2d 302 (Tex.Cr.App.1976). Merely because a lesser offense is included within the proof of a greater offense, however, does not always warrant a jury charge on the lesser offense. In Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981), this Court enunciated a two part test to determine whether a charge on the lesser included offense is required. “First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense.” (citation omitted.)

Under the second prong of the Royster test, there must be some evidence that the appellant, if guilty, is guilty only of the lesser included offense of criminal trespass. Thus, if testimony raises the issue that the defendant entered the premises for purposes other than to commit a felony or theft, he would be entitled to a charge on the lesser offense of trespass. Day, supra. But, if the defendant presents evidence that he committed no offense at all, McKinney v. State, 627 S.W.2d 731 (Tex.Cr.App.1982); McCardell v. State, 557 S.W.2d 289 (Tex.Cr.App.1977), or if he presents no evidence, Denison v. State, 651 S.W.2d 754 (Tex.Cr.App.1983); Thomas v. State, 543 S.W.2d 645 (Tex.Cr.App.1976), and there is no evidence otherwise raising the issue, a charge on the lesser offense of trespass is not required.

In the case at bar, while proving the offense of attempted burglary of a building with intent to commit theft, the State also proved the offense of attempted criminal trespass. There was, however, no evidence in the record from any source which showed that if Appellant was guilty, he was guilty of criminal trespass only. Denison, supra. Thomas, supra.

The Court of Appeals, however, held that since non-consensual nighttime entry raises a presumption of intent to commit theft, Mauldin v. State, 628 S.W.2d 793 (Tex.Cr.App.1982), and the jury is not bound to find the element of the offense sought to be presumed under V.T.C.A. Penal Code, § 2.05(2)(B), a charge on the lesser offense of trespass was required. We disagree.

At the outset, we note that a charge on lesser included offenses is not required merely because the jury is charged on the issue of the existence of a presumed fact under V.T.C.A. Penal Code, § 2.05. Beyond that, and more to the point, there was no trial presumption employed in this case. Penal Code § 2.05(2) applies only when “the existence of the presumed fact is submitted to the jury”. There was no reference to a presumption of intent to commit theft contained in this court’s charge to the jury; and correctly so. The “presumption” of intent to commit theft arising from non-consensual nighttime entry is an appellate vehicle employed to review the sufficiency of the evidence, not a trial vehicle used to prove an element of the State’s case.

The trial court did not err in excluding an instruction on attempted criminal trespass. Accordingly, the judgment of the Court of Appeals is reversed. Since appellant’s other grounds of error were considered and overruled by the Court of Appeals, the judgment of the trial court is affirmed.

CLINTON, Judge,

dissenting.

In Royster v. State, 622 S.W.2d, 442 (Tex.Cr.App.1981) this Court did not enunciate a two part test to determine whether a charge on a lesser included offense is required. A plurality of four judges followed a panel majority opinion in Eldred v. State, 578 S.W.2d 721 (Tex.Cr.App.1979), which was not tested for validity on rehearing by the Court En Bane. In between there was Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1980), and like Royster v. State, supra, it too mustered just a plurality for the “guilty only” test of Daywood-McBrayer. As of September 28, 1981 five judges had rejected the socalled “two part test” in favor of others. See Royster v. State, supra, at 447; see also Watson v. State, supra, at 886-887. I still do and therefore dissent.

In Watson I demonstrated to the satisfaction of Judge Dally that “[t]he rule stated by the majority is an incorrect rule which has been erroneously applied numerous times since its apparent genesis in Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952) as dictum,” id., at 886. Despite reiterating the Daywood-McBrayer “guilty only” test from time to time, this Court may have abandoned it recently in Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984)-since the opinion does not even mention nor does it apply the “two part test” in finding error in refusal to instruct on a lesser included offense raised by a consideration of all the evidence before the jury. However, if this Court still has not settled on a fair and workable standard for determining when a trial court is required to include in its charge to a jury proper instructions authorizing jurors to consider a lesser included offense, now is the time to do so, and Lugo provides it in the instant cause.

In Lugo, supra, the Court found, “The sole issue at trial concerned appellant’s intent.” Id., at 149. Is not that the ultimate issue in the case at bar?

The offense alleged is attempted burglary — that is, that appellant with specific intent to commit the offense of burglary did the act described, according to the State, with intent to commit theft. V.T.C.A. Penal Code, § 15.01(a) and § 30.02(a)(1). The offense of attempted criminal trespass requires specific intent to commit the offense of criminal trespass coupled with an act that tends to but fails to effect a criminal trespass — that is, one intends to enter a building of another without effective consent, having notice that entry is forbidden, and goes beyond preparing to do so. Id., § 15.01(a) and § 30.05(a).

The testimony of Officer Robles is that he observed two persons standing in the recessed doorway to the 105 Lounge; they were facing the door, their backs to the street; he could not tell what they were doing at that time. Only later was it discovered that the top part of a wooden door had been pushed back. Thus is shown an attempted entry, and the only question is with what intent was that attempt made— to commit burglary or criminal trespass. Since the evidence adduced at trial raises an issue that a lesser included offense may have been committed, to paraphrase Lugo, the trial court should have included a proper instruction on the lesser included offense of criminal trespass. Lugo, supra, at 147.

TEAGUE, Judge,

dissenting.

Because the majority erroneously holds that Ruben Aguilar, appellant, was not entitled to an instruction on the lesser offense of criminal trespass, I am compelled to dissent.

Because my Brother Clinton has written a thought provoking dissenting opinion, I join that opinion. However, but because I believe additional remarks, concerning the law that governs when a lesser included offense instruction must be made, I also write.

The immediate predecessors of Articles 37.08 and 37.09, V.A.C.C.P., were Articles 694 and 695, 1925 Code of Criminal Procedure.

Art. 694, supra, provided:

In a prosecution for an offense including lower offenses, the jury may find the defendant not guilty of the higher offense, but guilty of any lower offense included.

Art. 695, supra, provided:

The following offenses include different degrees:

1. Murder, which includes all the lesser degrees of culpable homicide, and also an assault with intent to commit murder.
2. An assault with intent to commit any felony, which includes all assaults of an inferior degree.
3. Maiming, which includes aggravated and simple assault and battery.
4. Burglary, which includes every species of house breaking and theft or other felony when charged in the indictment in connection with the burglary.
5. Riot, which includes unlawful assembly.
6. Kidnapping or abduction, which includes false imprisonment.
7. Every offense against the person includes within it assaults with intent to commit said offense, when such attempt is a violation of the penal law.

Art. 37.08, supra, provides:

In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.

Art. 37.09, supra, provides:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less then all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffers to establish its commission; or
(4)it consists of an attempt to commit the offense charged or an otherwise included offense.

From the above, it should be apparent that the Legislature intended that if the proof showed that the accused was guilty of the alleged offense, but the proof also showed that he was guilty of a lesser included offense, then the jury should be instructed not only on the alleged offense but the lesser offense as well, provided that all of the elements of the lesser offense were stated within the charging instrument and the proof supported such an instruction. Thus, in making the determination whether a lesser offense instruction should be given, the focus of attention should be upon not only what the accused was charged with committing, but all the proof that was adduced.

In this instance, appellant was convicted on an indictment that alleged that he had committed the offense of attempted burglary with intent to commit theft. In pertinent part, the indictment alleges that appellant, with the specific intent to commit the offense of theft, did an act that amounted to more than mere preparation to commit the offense of burglary, but failed to commit the intended offense. Y.T.C.A., Penal Code, Section 15.01. The question that is before this Court is whether the proof established that appellant committed the lesser offense of attempted criminal trespass.

V.T.C.A., Penal Code, Section 30.02 provides that a person commits the offense of burglary if, without the effective consent of the owner, he enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft.

Y.T.C.A., Penal Code, Section 30.05, provides that a person commits the offense of criminal trespass if he enters or remains on property or in a building of another without effective consent and he (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so.

As easily seen, the offenses of burglary of a building and criminal trespass have the same elements except that the offense of burglary has the element of intent to commit a felony or theft, whereas the offense of criminal trespass has no such element, but in place of such element it has a “notice” element.

If the constituent elements of a lesser offense are included within the charging instrument, in order to obtain a conviction for the lesser offense, it is not necessary for the State to also plead the constituent elements of the lesser offense. Allison v. State, 618 S.W.2d 763 (Tex.Cr.App.1981).

This Court has held that the offense of criminal trespass may be a lesser included offense of the offense of burglary. Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976). Thus, the offense of attempted criminal trespass may be a lesser included offense of the offense of attempted burglary. In this instance, if the proof from any source established not only the elements of attempted burglary of a building, the alleged offense, but also established the lesser offense of attempted criminal trespass, then appellant was entitled to an instruction on the lesser offense of criminal trespass.

Notwithstanding what the majority of this Court stated on both original submission and rehearing in Day v. State, supra, regarding the law that governs when an instruction on a lesser offense must be given, there is still much disagreement over just when an instruction on a lesser offense must be given by the trial court. I believe that one of the causes for this disagreement is the failure on the part of some persons to recognize the difference between an affirmative defensive theory and a legal theory that would authorize the fact finder to make a finding from the proof adduced that an offense other than what was actually alleged in the charging instrument was committed by the accused.

An affirmative defensive theory is a theory that takes issue with how or in what manner the offense was committed, see V.T.C.A., Penal Code, Chapters 8 and 9, or whether the accused committed the offense at all, such as the affirmative defense of alibi. In that instance, the accused ordinarily has the burden of proof to establish his affirmative defense. However, this burden may be sustained if from any source the evidence raises an affirmative defense, and, if requested, the accused is entitled to such an instruction. Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984).

The doctrine of lesser included offenses comes into play, however, when the proof adduced causes a factual element of the alleged offense to become disputed, which, if resolved in favor of the accused, would cause him not to be guilty of the alleged offense but might cause him to be guilty of some lesser offense which is included within the greater or alleged offense.

In making the determination whether an instruction on a lesser offense must be given, this Court in the past adopted a simple two-step analysis approach, namely, whether an instruction on a lesser offense should be given, (1) the lesser offense must be included within the proof necessary to establish the offense charged and (2) there must be some evidence in the record that if the defendant is guilty, he is guilty of only a lesser included offense. This is often referred to as the Royster-Daywood-McBrayer-Watson test. In most instances, this test is sufficient to resolve the issue of whether the accused was entitled to an instruction on a lesser included offense. However, but because the second part of the test is phrased in such a manner that it closely resembles the test that is ordinarily used in making the determination whether an affirmative defensive instruction should be given the accused, some judges have placed upon the accused not only the burden to disprove the factual elements of the alleged offense, but the burden to prove the elements of the lesser offense as well. However, it has long been the law of this State that any legal theory legitimately arising out of the evidence in a case imposes upon the court the duty of submission by appropriately instructing the jury upon the law governing it, Lugo v. State, supra; thus, it matters not from what source the evidence that would support such a theory comes.

When the Legislature enacted Art. 37.09, supra, it effectively expanded the number of lesser offenses for which the accused could be convicted. Thus, if the evidence from any source establishes a dispute over a factual element of the alleged offense, and the evidence would support a finding that the accused was guilty of committing a lesser offense, and the accused person requests an instruction on the lesser included offense, the trial court should give that instruction. Also see Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Of course, a culpable mental state, such as intentionally, knowingly, or recklessly, may be a factual element of an offense which might be placed into dispute by evidence from any source.

In the instant ease, it was alleged that the appellant, acting with the specific intent to commit theft, attempted to enter a building without the consent of its owner. This, of course, alleged the offense of attempted burglary of a building. However, if from any source the evidence also established that the appellant did not have the specific intent to commit the offense of theft, but the evidence from any source established that he had some other, but non-criminal intent, then he was entitled to an instruction on the other, but lesser included offense of attempted criminal trespass.

The undisputed facts of this cause reflect that during the early morning of the day in question, police officers saw appellant and another person huddled together facing the front door of a building that housed a closed bar. When the officers approached the two persons, and challenged them as to what they were doing, they attempted to flee but were soon apprehended.

From these brief facts, it should be obvious to anyone that there is no direct evidence that would establish what intent appellant then had.

The majority states: “In the case at bar, while proving the offense of attempted burglary of a building with intent to commit theft, the State also proved the offense of attempted criminal trespass. There was, however, no evidence in the record from any source which showed that if Appellant was guilty, he was guilty of criminal trespass only.” Overlooked by the majority is the simple fact that there is also no evidence in the record which would show just exactly what intent appellant had when he was in the huddled position outside of the closed building.

It is obvious from the evidence adduced that appellant committed a criminal wrong. The question, however, is just what wrong did he commit? Is it attempted burglary or is it attempted criminal trespass? If he did not have the specific intent to commit theft, he would not be guilty of attempted burglary, but could have been found guilty of attempted criminal trespass.

Perhaps, if the majority would carefully examine and study the following statement that appellant’s counsel makes in his appellate brief, it would see why its holding is erroneous: “Where there is no direct evidence on an element of the offense charged, and the circumstantial evidence, if any, on such element is equally probative, if at all, of a different hypothesis, and if such other hypothesis would, if true, be sufficient to establish culpability for a lesser included offense of the offense charged, then upon timely motion ... the issue of guilt upon such lesser included offense should be submitted to the jury.”

Of course, had the circumstances of this case been such so as to render unreasonable all other possible interpretations of the facts except the State’s theory that appellant was guilty only of the offense of attempted burglary, then there would have been no obligation on the part of the trial judge to instruct the jury on another theory of what offense appellant might be guilty of committing. However, in this instance, there was another, but just as reasonable and viable legal theory applicable to this case, which was, for example, that when huddled with his cohort outside the closed building, appellant then had the intent only to find an enclosed place to sleep and was trying to enter the closed building for that purpose and no other. It was for the fact finder to decide just what intent appellant then had. Because the trial court did not instruct the jury on the lesser included offense of attempted criminal trespass, the jury was deprived of making an alternative finding, thus depriving appellant of a fair trial.

For all of the above reasons, appellant was entitled to an instruction on the lesser included offense of criminal trespass. The El Paso Court of Appeals correctly resolved the issue in appellant’s favor. Its judgment should be affirmed and not reversed. To the action of the majority holding that appellant was not entitled to an instruction on the lesser included offense of attempted criminal trespass, and reversing the judgment of the court of appeals, I respectfully dissent.

      . See, Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984).

      . We leave for another day the issue of whether this is truly a presumption or simply a permissible inference. See, Hardesty v. State, 656 S.W.2d 73 (Tex.Cr.App.1983). For the inauspicious genesis of the rule, see Mullins v. State, 35 Tex.Crim. 149, 32 S.W. 691 (1895) and Alexander v. State, 31 Tex.Crim. 359, 20 S.W. 756 (1892).

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

      . Alibi is not, however, a statutory affirmative defense. See Miller v. State, 660 S.W.2d 95 (Tex.Cr.App.1983).

      . So named after the following cases of this Court: Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981); Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1980); McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974); Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (Tex.Cr.App.1952).


source: Caselaw Access Project

author: CAMPBELL, Judge. CLINTON, Judge,

license: Public Domain

text:
    Lawrence Houston MADDOX, Appellant, v. The STATE of Texas, Appellee.
    No. 049-84.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 9, 1985.
    Allen C. Isbell, on appeal only, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty. and Eleanor Montague McCarthy and Richard Wilkinson, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of the offense of delivery of methamphetamine, a controlled substance. A jury assessed his punishment at confinement in the Texas Department of Corrections for twenty years, after having first found true an enhancement paragraph alleging a prior burglary conviction.

The Court of Appeals for the First Supreme Judicial District in Houston reversed the conviction because the trial court admitted into evidence a rifle seized by the police at the time and place of appellant’s arrest. In reversing, the court below held that the trial court erred in admitting evidence of a rifle found during the arrest, holding that such evidence was inherently prejudicial and had no relevance to any issue in the case. We granted the State’s petition for review in order to determine the propriety of that decision. We reverse the Court of Appeals.

On the day of the offense, Houston Police Officer J.D. Cargill, working under cover, went to a private residence in Harris County, to conduct a narcotics transaction. There, he met Mel, Patty, and Paula, having arranged by a prior telephone conversation with Paula to buy a half-ounce of methamphetamine. Cargill learned that the group had only one-eighth of an ounce of methamphetamine. Mel left with another person to obtain more substances and returned a few hours later in a truck. Upon his return, Mel was accompanied by the appellant and one Sandoz. Mel and Sandoz exited the truck, while appellant remained seated. Cargill observed the appellant with a plastic baggie in his hand and saw the appellant hand the baggie to Sandoz. Sandoz gave the baggie to Mel, who put it in his shirt pocket. Mel subsequently delivered the baggie containing methamphetamine to Cargill.

Appellant and Sandoz were sitting in the pickup in front of the residence when narcotics officers arrested them. One officer observed and seized a “military” rifle from the floorboard of the pickup.

Appellant objected to the introduction of the weapon into evidence on the ground that it was immaterial and irrelevant to the crime and that its display before the jury would only be prejudicial, thus denying appellant a fair trial. A hearing on such objection was conducted outside the jury’s presence, after which appellant’s objection was overruled. The rifle was subsequently admitted into evidence by the trial court.

Officer Britt testified he observed an “assault rifle” on the floorboard beneath appellant’s feet. Britt described the rifle as a Heckler and Koch model 91, .308 assault rifle, semi-automatic, clip-fed through a box magazine, and gas operated. He also testified that appellant put his hands up immediately when the police approached the pickup, that the rifle was unloaded, but that a live clip was found in the glove compartment. The rifle was not shown to be a prohibited weapon. See V.T.C.A. Penal Code, Sec. 46.06.

The general rule in Texas is that the State is entitled to show circumstances surrounding an arrest. Williams v. State, 535 S.W.2d 637 (Tex.Cr.App.1976); Hernandez v. State, 484 S.W.2d 754 (Tex.Cr.App.1972); Jones v. State, 471 S.W.2d 413 (Tex.Cr.App.1971). However, when such evidence is “inherently prejudicial and has no relevance to any issue in the case,” then the general rule no longer applies, and the evidence becomes inadmissible. Hernandez, supra; Powell v. State, 478 S.W.2d 95 (Tex.Cr.App.1971). In reviewing questions of this sort, we are constrained to pass on claimed error by determining only whether the trial judge clearly abused his discretion in allowing the evidence to be admitted. Hernandez, supra; Lanham v. State, 474 S.W.2d 197 (Tex.Cr.App.1971).

In Jones, supra, the defendant was arrested for robbery more than two months after the crime. The vehicle he was driving when arrested was determined to have been “hot wired.” This Court held there was no error in admitting this evidence as a circumstance surrounding the arrest.

The defendant in Ross v. State, 334 S.W.2d 174 (Tex.Cr.App.1960) was arrested for driving while intoxicated. The trial court allowed testimony that a .38 caliber handgun was found by arresting officers inside the car. This Court held, inter alia, that “the jury was entitled to know that the defendant on trial had control of a pistol as well as a motor vehicle while he was intoxicated. Proof of the circumstances surrounding the commission of an offense which form a part of the occurrence are admissible.” Ross, supra @ 175.

In Williams, supra, the defendant was convicted of possession of marihuana. Evidence showing that a gun was found in defendant’s suitcase soon after the arrest was admitted into evidence. We held:

“The articles in question were found in appellant’s possession at the time of the commission of the offense and of the arrest. They were circumstances surrounding the offense and the arrest, and were relevant not only to guilt, but also to the issues of punishment and probation. No clear abuse of the trial court’s discretion is shown.”

The majority opinion of the court below relies primarily on two cases decided by this Court. In Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973), the defendant was a passenger in a car that matched the description of a car believed to have been used in an aggravated robbery. The car was stopped by police and a subsequent search of same revealed a sawed-off shotgun in the trunk. The shotgun was introduced into evidence over the defendant’s objection. The evidence revealed that a handgun had been used to effectuate the robbery, and this Court held that since the shotgun had no relevance to any issue in the case, the trial judge abused his discretion in admitting it into evidence. Additionally, however, this Court concluded that since the other evidence of guilt was overwhelming, the error was harmless.

In Stanley v. State, 606 S.W.2d 918 (Tex.Cr.App.1980), the defendant and several other persons were arrested in a vehicle some 13 days after the commission of an aggravated robbery. Numerous weapons, including shotguns, handguns, knives, a bayonet, a police scanner, and a wireless microphone were recovered from the vehicle and admitted into evidence at the defendant’s trial. The evidence showed that only one shotgun was identified by the victim as the weapon most likely used in the robbery. The other items were found by this Court to have been improperly introduced, because they were unrelated to the crime and therefore prejudicial.

We find that the reliance of the court of appeals on these two cases is misplaced. In both Cunningham, supra and Stanley, supra the State failed to show any connection whatever between the evidence introduced and the crimes committed. Clearly then, in those cases, the evidence was both inadmissible and prejudicial. In the case at bar, however, the rifle was shown to have been directly connected with, and contemporaneous to, and inseparable from the arrest of the appellant.

We find that both the facts and the rationale employed by this Court in Williams and Ross are dispositive of the issue in the case at bar. The trial judge in the instant case did not abuse his discretion in admitting the rifle. See Hernandez, supra.

The judgment of the court of appeals is reversed and the cause is remanded for consideration of appellant’s other grounds of error.

MILLER, J., concurs.

CLINTON, Judge,

concurring.

I concur in the result reached in the majority opinion because the seizure of the semiautomatic “assault rifle” recovered from beneath appellant’s feet as he sat in a pickup truck outside the house in which Ms companion had gone to effect a drug transaction was part and parcel of a single continuing transaction. It is always permissible to prove the “context of the offense;” what occurs immediately prior and subsequent to the commission of the offense on trial is always admissible under the reasoning that events do not occur in a vacuum and the jury has a right to have the offense placed in its proper setting so that all evidence may be realistically evaluated. See Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

When evidence is offered under this “context of offense” rationale, the prejudicial nature of it will rarely render it inadmissible so long as it truly sets the stage for the jury’s comprehension of the whole criminal transaction.

Since it is clear under the record of this particular ease that arresting appellant and finding the rifle at his feet were constituent facts of the context of the criminal transaction, those facts were correctly admitted in appellant’s trial.

The majority errs, however, in suggesting there is some authoritative rule which generally admits evidence of circumstances surrounding — or the context of — the arrest in all criminal prosecutions. To the contrary, the general rule is that only if the circumstances of the arrest are relevant to a material issue in the prosecution, for some reason unique to that prosecution, is evidence of those circumstances admissible, and then, only if the probative value of the evidence outweighs its prejudicial potential. E.g., Smith v. State, 646 S.W.2d 452 (Tex.Cr.App.1983); Heflin v. State, 574 S.W.2d 554 (Tex.Cr.App.1978); Gaston v. State, 574 S.W.2d 120 (Tex.Cr.App.1978). As in the instant case, since evidence of the arrest happens to coincide with context of offense evidence, the probative value is very high.

It is true that in days past a line of cases developed for the purported proposition that circumstances surrounding the arrest of every accused were somehow elevated to admissible matters in every prosecution; many of those cases are cited in the State’s petition for review. Though this line of cases has never been directly overruled, the modern trend, since 1978 when Judge Yollers wrote Gaston v. State, supra, has been to recognize the error of those cases, the error of their application as a rote rule, and to treat the issues on a case by case basis. Thus, cases decided prior to 1978 on “res gestae of the arrest” are of questionable precedential value and should be viewed as such.

Indeed, if the case before us involved admission of prejudicial evidence which related only to the arrest and in no way to the offense, we would be called upon finally to review and to overrule the prel978 line of cases cited by the State. But as stated earlier, it is unnecessary to rely on those cases at all.

The majority opinion cites and quotes cases dealing with the issue which when properly interpreted are essentially correct; e.g., Williams v. State, 535 S.W.2d 637 (Tex.Cr.App.1976) and Ross v. State, 169 Tex.Cr.R. 313, 334 S.W.2d 174 (Tex.Cr.App.1960); the majority even points out that the court of appeals erroneously relied on Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973) and Stanley v. State, 606 S.W.2d 918 (Tex.Cr.App.1980), because in those cases, “the State failed to show any connection whatever between the evidence introduced and the crimes committed.” But the majority then incorrectly recites an ultimate rationale for upholding the admission of the rifle in this case: that is that the rifle was shown to have been “directly connected with, and contemporaneous to, the arrest of appellant.”

Only because the arrest of appellant was “directly connected with, and contemporaneous to,” the offense committed by appellant, is the evidence complained of admissible.

On this basis, I concur in the judgment of the Court.

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

      . This is sometimes unconducively labeled "res gestae.” The term "res gestae," however, adds little more than confusion to any legal discussion because so many wholly unrelated types of evidence which may or may not be admissible for a diversity of reasons are also labeled "res gestae.” See King v. State, 631 S.W.2d 486, 492, n. 12 and accompanying text (Tex.Cr.App.1982); see also Gaston v. State, 574 S.W.2d 120 (Tex.Cr.App.1978).

      . The material issues in any given case are those framed by the State’s indictment on which the State has the burden of proof. See Rubio v. State, 607 S.W.2d 498 (Tex.Cr.App.1980) (Opinion concurring). Thus the arrest of the accused is never of and by itself a material issue in the case and will generally be made one only at the defendant’s option. See Hardesty v. State, 667 S.W.2d 130, 133, n. 6 (Tex.Cr.App.1984).

      . Again I note that the prejudicial nature of true "context of offense” evidence is generally irrelevant to its admission. In other words very little, if any, "balancing” is required because the probative value of true "context" evidence is so great.

      . See, e.g., Jones v. State, 471 S.W.2d 413 (Tex.Cr.App.1971) and its progeny.

      . While I believe the majority opinion has essentially reasoned through this case individually, and reached the correct result, I do not feel assured that it recognizes the notable lack of logic in some of the “res gestae of arrest” cases it cites, particularly Jones, supra.

      . Indeed, if the State had only read the record in this case carefully at any point after trial, the best ground for rejecting appellant’s complaint about the rifle might have been discovered: the error was not preserved.
      Though both the court of appeals and the majority opinion for this Court state that a hearing was had on appellant’s objection (that a discussion of the rifle was prejudicial and irrelevant to any material issue in the case), the record reflects a hearing was conducted only on appellant’s objection that the officers had no probable cause to search the truck or seize the rifle.
      After appellant’s "motion in limine/motion to suppress" was overruled the rifle was exhibited before the jury and addressed at length in the testimony of the arresting officer before appellant ever voiced his objection that the court of appeals sustained.
      Incredibly, the State has never brought this sequence of events to the attention of either appellate court. Because of this failure and the concomitant fact that we granted review on the merits, I believe that, as a reviewing court, we are correct to resolve the case on the merits.

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


author: CAMPBELL, Judge. ONION, Presiding Judge,

text:
    Tony O’Neal GOVAN, Appellant, v. The STATE of Texas, Appellee.
    No. 189-84.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 9, 1985.

      Robert Udashen, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Deborah E. Farris, Andy Beach and Knox Fitzpatrick, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty. and Cathleen R. Riedel, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury of the offense of aggravated robbery. See V.T. C.A. Penal Code, Sec. 29.02(a)(2). Punishment was assessed by the trial court at confinement in the Texas Department of Corrections for a term of twenty-five years. Appeal was taken to the Dallas Court of Appeals, which affirmed appellant’s conviction in an unpublished opinion. See Govan v. State, No. 05-82-01132-CR, delivered December 29, 1983 (Tex.App.Dallas). This Court granted Appellant’s Petition for Discretionary Review to determine whether the court below erred in affirming the trial court’s decision to overrule appellant’s objection that the trial court’s charge to the jury failed to apply the law of parties to the facts of the case. Although we disagree with the rationale applied below, we agree with the result reached and affirm.

As will become apparent, a brief recitation of the facts is necessary. The named victim in the indictment, Becky Shelberg, testified that on February 11, 1982, she was attending a Bible School in Dallas and around 12:00 p.m., she and a friend, Brad Schofield, went to a Pizza Inn to get some lunch. A short time later, Shelberg testified that two black males took a booth directly behind her and Schofield, and that one of the black males went to the rest room. Subsequently, the black male who had entered the rest room came toward Schofield and said, “Give me your wallet.” Schofield responded that he did not have any money, but the assailant persisted in getting Schofield’s wallet. Shelberg testified that the next thing she recalled was the other black male placing a revolver to her head and stating, “Give me your purse.” Shelberg complied out of fear of imminent bodily injury or death. Shelberg then observed the appellant unzip her purse, rummage through it, get her wallet, and say, “Don’t you look at us, don’t you dare scream, look down.” Thereafter, the suspects departed the Pizza Inn. Shelberg testified that a few days later, she received some of her stolen identification in the mail, but did not recover five dollars taken from the wallet.

At a consolidated trial, at which appellant was tried for the aggravated robbery of Shelberg, while appellant’s co-defendant was tried for the robbery of Schofield, Shelberg positively identified appellant as her only assailant, [emphasis added.] Additionally, appellant gave a written statement to the police admitting his complicity in the robbery of Shelberg.

The trial court instructed the jury, in the abstract portion of the charge, with respect to the law of parties found in V.T.C.A. Penal Code, Secs. 7.01(a) and 7.02(a)(1). Additionally, in the application paragraph of the charge, the trial judge, inter alia, instructed the jury that they could find appellant guilty if they found he was “acting alone or as a party as that term is defined herein,” but did not apply the law of parties to the facts of the case.

The trial judge heard objections and exceptions to the court’s charge in chambers. The critical objection made in the case sub judice was tendered by the attorney for the appellant’s co-defendant and adopted by appellant s attorney on behalf of appellant, see Woerner v. State, 576 S.W.2d 85 (Tex.Cr.App.1979), viz: “And our third objection, Your Honor, is that the Court has failed to specifically apply the law of parties to the facts in this case.” [emphasis added.].

The Court of Appeals, relying upon Bilbrey v. State, 594 S.W.2d 754 (Tex.Cr.App.1980), held that “the objection was not specific enough to apprise the court of what is complained of and nothing is presented for review.” We believe this reliance is misplaced. In Bilbrey, supra, the defendant’s objection to the jury charge was merely that “the court’s charge fails to adequately apply the law to the facts.” [at pg. 756.] This objection would certainly not be sufficient under Art. 86.14, Y.A.C. C.P. and the cases annotated thereunder, because the trial judge would have no clue as to what “law” the defendant was referring. In the instant case, however, the appellant specifically objected to the application of the law of parties to the facts of the case. We find the holding in Bilbrey to be inapposite, and hold that appellant’s objection was sufficient to preserve error under Art. 36.14, supra.

Having found that appellant’s objection preserved error, if any, we turn to the appellant’s pivotal contention that “the court’s charge authorized the jury to convict the Petitioner of being a party to this offense without any concrete delineation of how the law of parties applied to the particular facts of this case,” [appellant’s brief at pg. 11] and, therefore, reversible error was committed. To support this contention, appellant cites us to and relies upon Apodaca v. State, 589 S.W.2d 696 (Tex.Cr.App.1979) and Rasmussen v. State, 608 S.W.2d 205 (Tex.Cr.App.1980).

In Apodaca, supra, the defendant was riding as a passenger in a car driven by a co-defendant named Lewis. An argument ensued between Lewis and the deceased. The deceased drove away in his truck and Lewis chased him. Lewis and the defendant chased the truck on the highway at high rates of speed. During the chase, defendant Apodaca leaned out of Lewis’ car and beat on the deceased’s truck with a tire tool. The deceased was ultimately killed when Lewis’ truck struck the car and ran it over a guard rail. Apodaca was indicted for murder, but convicted of voluntary manslaughter. The State’s theory of the case was that Apodaca was criminally responsible for the acts of Lewis in causing the wreck which killed the deceased. As in the instant case, the trial judge charged the jury in the abstract on the law of parties, but instructed the jury in the application paragraph as if Apodaca were a principal actor, and, in fact, never made reference to parties. The trial court expressly overruled a written requested charge from the defendant that would have applied the law of parties to the facts of the ease. This Court held that such action by the trial judge was reversible error, noting that:

“No evidence in the instant case supported submission of the case on the theory that the appellant was the primary actor. The State’s theory of prosecution in the instant case was that the co-defendant, Lewis, as the driver of the car, was the principal actor and that appellant was guilty, if at all, as a party because he solicited, encouraged, directed, aided or attempted to aid the co-defendant Lewis.” at pg. 698 [emphasis added.]

Similarly, in Rasmussen, supra, defendant, his younger brother, and a third co-defendant were involved in a transaction whereby a controlled substance was sold to police officers, the negotiation and transfer being actually handled by defendant’s younger brother. The record demonstrated that when the three co-defendants noticed a marked police car in the area, the defendant exclaimed, “Let’s get out of here.” Again, as in Apodaca, supra, the trial judge charged the jury in the abstract on the law of parties, but refused defendant’s requested instruction applying the law of parties to the facts of the case. In Rasmussen, this Court held:

“Like Apodaca, the instant case presente no support for submission on the theory that appellant was the primary actor.” at pg. 208.

The State, through its State Prosecuting Attorney, contends in its reply brief that neither Apodaca nor Rasmussen apply to the facts in the instant case. The State points out, and same is reflected in the record, that appellant, in the instant case, was indicted individually for the aggravated robbery of Becky Shelberg. The evidence is clearly sufficient that appellant Govan committed the robbery of Shelberg as a principal actor. The robbery of Schofield was committed by appellant’s co-defendant. Thus two separate robberies were committed against two separate victims by appellant Govan and his co-defendant.

With this premise in mind, the State contends that appellant’s conviction did not depend upon the application of the law of parties and that the unnecessary inclusion of the abstract definition of the law of parties and the addition of the phrase “acting alone or as a party as that term is defined herein” to the application paragraph of the jury charge was harmless error.

In support for its position, the State refers us to two cases that predate the 1973 Penal Code, but which are nevertheless instructive. In Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974) this Court held:

“Under the evidence, a charge on principals was not required, since the evidence is sufficient to support a finding that appellant unlawfully possessed the marihuana. [footnote omitted.]—
“In light of the evidence of appellant’s personal possession and the court’s instructions, the inclusion of the abstract statement of the law of principals was harmless error.” at pg. 934.

In Hannon v. State, 475 S.W.2d 800 (Tex.Cr.App.1972), quoting from Durham v. State, 112 Tex.Cr.R. 395, 16 S.W.2d 1092 (Tex.Cr.App.1929), this Court stated:

“When the evidence shows that the accused on trial was a principal actor in the commission of the offense, no charge on principals would be necessary, although the proof may also disclose that in doing the criminal act another took an equal part.-
“However, we fail to see how a charge on the law of principals would be calculated to injure the rights of the appellant in the instant case. The court’s charge made appellant’s guilt depend upon the finding that he ‘acting either alone or as a principal’, committed the offense.” at 400, 16 S.W.2d 2095.

Additionally, our research reveals two post 1973 Penal Code cases which follow Stein and Hannon. In Todd v. State, 601 S.W.2d 718 (Tex.Cr.App.1980), the record reveals the exact converse of the facts in Apodaca, supra. In Todd, supra, the defendant was driving his own car, in which a co-defendant was a passenger, pulling a welding machine that had been recently stolen. The record showed that the vehicle driven by defendant was registered to the defendant. The trial court included in its instructions to the jury an abstract charge on the law of parties. Additionally, in applying the law to the facts, the court made Todd’s guilt depend on a finding that he committed the offense “acting either alone or with one or more persons.” This Court reached two conclusions: (1) Since the evidence of the defendant’s conduct alone was sufficient to sustain the conviction, no charge on parties was required, and (2) because the jury was authorized to convict the defendant if it found he was acting alone, any error was harmless.

In Mauldin v. State, 628 S.W.2d 793 (Tex.Cr.App.1982), the defendant and a co-defendant were caught by police exiting a building that had just been burglarized. The trial court instructed on the law of parties in the abstract portion of the charge, but then totally omitted the law of parties from the application paragraph. This Court cited Stein, supra and Hannon, supra, in finding that no reversible error was shown.

We find that appellant’s reliance on Apodaca and Rasmussen is misplaced, and we hold that, because the evidence in the instant case clearly supports the appellant’s guilt as a principal actor, the error of the trial court in charging on the law of parties was harmless error.

The judgments of the Court of Appeals and the trial court are affirmed.

CLINTON, TEAGUE and MILLER, JJ., concur.

ONION, Presiding Judge,

concurring in part and dissenting in part.

Near the commencement of its opinion today the majority states, “This Court granted appellant’s Petition for Discretionary Review to determine whether the court below erred in affirming the trial court’s decision to overrule appellant’s objection that the trial court’s charge to the jury failed to apply the law of parties to the facts of the case.” (Emphasis supplied.)

In concluding and supposedly answering appellant’s contention, the majority states, “the error of the trial court in charging on the law of parties was harmless error.” (Emphasis supplied.) Thus there seems a gap between question and answer.

In order to understand what is before this Court it is necessary to examine the record. Appellant’s ground of error expressly states, “The Trial Court erred in overruling appellant’s objection that the court’s charge failed to apply the law of parties to the facts of the case.”

This, however, is not really the contention appellant advances in his argument under said ground of error.

The argument states in part:

“The court’s charge in this case contained an abstract definition of the law of parties. The law of parties, however, was not specifically applied to the facts of the case. Instead, the court charged the jury as follows: .... ” (Emphasis supplied.)

The appellant then noted that in applying the law to the facts the court authorized the jury to convict him if they found he was “acting alone or as a party, as that term is defined herein, ....” Appellant then stated in his brief argument:

“The appellant’s co-defendant objected to the court’s charge because of its failure to specifically apply the law of parties to the facts of the case. The appellant adopted this objection as his own. The trial court overruled the objection..
“In light of the specific objection, made by the appellant in this case the court should have applied the law of parties to the facts of this case. Instead, the court’s charge authorized the jury to convict the appellant of being a party to this offense without any concrete delineation of how the law of parties applied to the particular facts of this case. This cause should therefore be reversed and remanded for a new trial.”

Appellant and his co-defendant were separately indicted, but were jointly tried. Separate charges concerning each were submitted to the jury. In objecting to the jury charge concerning the co-defendant, his attorney, inter alia, stated: “And our third objection, Your Honor, is that the Court has failed to specifically apply the law of parties to the facts in this case.” The objection was overruled. Thereafter appellant’s counsel stated, “... I would like to adopt Mr. Huff’s objections.” Thereafter the court expressly permitted the objections, but appellant failed to secure a ruling on the objections contrary to the assertion in his brief.

It is clear from what has been said that appellant’s argument is that the trial court did not adequately and specifically apply the law of the parties to the facts in its charge to the jury, not that the court failed to apply the law of parties at all. It is on this point that the majority seems to lose its way. It ends in discussing whether the court erred in giving a charge on the law of parties, which is not the question presented.

In responding to appellant’s ground of error, the Court of Appeals wrote:

“Appellant next contends that the trial court erred in overruling his objection that the court’s charge failed to apply the law of parties to the facts of the case. We disagree. Appellant’s code-fendant objected to the charge stating, ‘[o]ur third objection is that the court has failed to specifically apply the law of parties to the case.’ Appellant then adopted the objection with the court’s approval. Failure to apply the law of parties to the facts is not fundamental error. Where appellant’s objection stated merely that ‘the Court’s charge fails to adequately apply the law of parties to the case,’ the objection was not specific enough to apprise the court of what is complained of and nothing is presented for review. Bilbrey v. State, 594 S.W.2d 754 (Tex.Crim.App.1980). Appellant’s fifth ground of error is overruled.”

Article 36.14, V.A.C.C.P., expressly provides the objection to the charge must distinctly specify each ground of objection. See also 23 Tex.Jur.3rd, Crim.Law, § 2755, p. 417. The purpose of Articles 36.14 and 36.15 is to enable a trial judge to know in what respect a defendant regards the charge as defective and to afford him an opportunity to correct it before reading the charge to the jury. Seefurth v. State, 422 S.W.2d 931 (Tex.Cr.App.1967). This can be accomplished only when the objections are sufficiently specific to point out the errors of which complaint is made. Green v. State, 161 S.W.2d 114 (Tex.Cr.App.1942); McCain v. State, 158 S.W.2d 796 (Tex.Cr.App.1942).

Thus an objection which does not distinctly specify and point out wherein the charge is defective, presents nothing for review. Myers v. State, 468 S.W.2d 847 (Tex.Cr.App.1971); Smith v. State, 439 S.W.2d 834 (Tex.Cr.App.1969); Siros v. State, 399 S.W.2d 547 (Tex.Cr.App.1966). See also Green v. State, supra; Harrington v. State, 424 S.W.2d 237 (Tex.Cr.App.1968). See also Dozier v. State, 158 S.W.2d 776 (Tex.Cr.App.1942); Peters v. State, 137 S.W.2d 1008 (Tex.Cr.App.1940); Perry v. State, 126 S.W.2d 969 (Tex.Cr.App.1939).

And it has been said that an objection to the charge which is too general to call the court’s attention to the omission and which does not point out wherein the charge did not correctly set forth the law presents nothing for review. Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115 (1958). See also Bryant v. State, 163 Tex.Cr.R. 463, 293 S.W.2d 646 (1956); Soto v. State, 161 Tex.Cr.R. 239, 275 S.W.2d 812 (1955).

In Criddington v. State, 127 Tex.Cr.R. 613, 78 S.W.2d 185 (1935), it was held that the objection “If such issue (provoking the difficulty) were raised by the evidence the charge of the court is erroneous in that he does not properly submit the law covering said issue” was not sufficiently specific to direct the trial judge’s attention to the thing objected to. Maloney v. State, 119 Tex.Cr.R. 273, 45 S.W.2d 216 (1932), held the objection was too general to call the court’s attention to the admission complained of, that the mere presence at the scene would not constitute defendant a principal.

In Cain v. State, 136 Tex.Cr.R. 275, 124 S.W.2d 991 (1939) (Opinion on rehearing), the objection was “1. Defendants object to the charge for the reason that nowhere in said charge has the court charged on the definition of the law of principals, applying the law to the facts on principals, and charged on the converse of said application of the law to the facts.” The objection was held insufficient to call the court’s attention to the contradiction before the charge actually given on principals and the charge on alibi.

An objection to a certain paragraph of the charge as not correctly stating the law was held not to be sufficiently specific as required by the statute in Magana v. State, 115 Tex.Cr.R. 7, 26 S.W.2d 1072 (1930). In Ruiz v. State, 523 S.W.2d 691, 694 (Tex.Cr.App.1975), the defendant’s objection to a limiting instruction did not indicate why he thought the charge was defective. No error was shown. In Gill v. State, 84 Tex.Cr.R. 531, 208 S.W.926 (1919), an objection to a paragraph in the charge being on the weight of evidence was too general to be reviewed.

“That the defendant’s objects and excepts to the court’s charge as a whole as the same is not sufficient to protect the rights of the defendant” was not a specific enough objection to apprise the court of the nature of his complaint with regard to the charge and thus presented nothing for review. Hackbarth v. State, 617 S.W.2d 944 (Tex.Cr.App.1981).

In Bilbrey v. State, 594 S.W.2d 754, 756 (Tex.Cr.App.1980), the objection was that the charge failed to adequately apply the law to the facts. There it was held that the objection was not specific enough to apprise the court of what was complained of and presented nothing for review.

In the instant case the appellant asked to adopt the objections of the co-defendant which in effect was saying “for the same reasons,” which is similar to Vaughn v. State, 607 S.W.2d 914, 922 (Tex.Cr.App.1980). The objection adopted, as earlier noted, was simply that the court had “failed to specifically apply the law of parties to the facts in this case.” The objection did not specifically point out to the trial court where the charge on law of parties was deficient. The court’s attention was not directed to what was desired. Thompson v. State, 162 S.W.2d 728 (Tex.Cr.App.1942). The objection was not sufficiently specific to meet the requirements of Article 36.14, V.A.C.C.P. Nothing is presented for review.

For the reasons stated, I would affirm the judgment of the Court of Appeals, and for that reason I concur in the result reached by the majority. I dissent, however, to extending the discussion to issues not before the Court as the majority has done.

      . In the middle of appellant's brief he states:
      "The failure to apply the law of parties to the facts of a case is not fundamental error. Bilbrey v. State, 594 S.W.2d 754, 756 (Tex.Cr.App.1980). Where a proper and timely objection is raised to such failure, however, reversible error is presented. Apodaca v. State, 589 S.W.2d 696, 698-699 (Tex.Crim.App.1979); Rasmussen v. State, 608 S.W.2d 205 (Tex.Cr.App.1980).”
      Here appellant does not cite Apodaca and Rasmussen for the proposition claimed by the majority nor is argument advanced on the claim seized upon by the majority.

      . The co-defendant's charge is not in this record before us so that we appraise the objection in light of the charge.

      . The rulings referred to in the brief were those made as to the co-defendant’s objection.

      . In Vaughn the Court noted the only objection was "for the same reasons stated in our motion for directed verdict." Speaking through Judge Clinton this Court held the objection was not in accordance with Article 36.14, V.A.C.C.P.

      . In Minor v. State, 476 S.W.2d 694 (Tex.Cr.App.1972), the complaint that the trial court erred in charging only abstractly on the law of principals (now parties) without applying the law to the facts despite timely presented objection was held not supported by the record which showed that, in addition to the abstract charge, the court instructed the jury to convict if it found the defendant guilty beyond a reasonable doubt of the offense charged either "acting alone or together with another" as a principal as defined in the charge. It must be remembered that the charge must be read as a whole.


author: ONION, Presiding Judge.

text:
    John D. McGOLDRICK, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 67341.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 9, 1985.

      Frank Robin, Jr., The Woodlands, for appellant.
    James H. Keeshan, Dist. Atty. and Mary Ann Parish, Asst. Dist. Atty., Conroe, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction as a party for the possession of more than four ounces of marihuana. Punishment was assessed by the jury at five years’ imprisonment and a fine of $5,000.00.

On appeal a number of grounds of error are presented. Appellant, inter alia, contends the trial court erred in admitting, over objection, the hearsay statements of Gary Johnson to undercover officers, on the theory that they were declarations of a co-conspirator made in the furtherance of a conspiracy, when no conspiracy was ever proven; that the court erred in admitting, over objection, items seized as a result of an illegal search and “inventory” of his automobile; that the court erred in overruling objections to a number of improper jury arguments by the prosecutor, and that the evidence was insufficient to sustain the conviction. We agree the evidence is insufficient and reverse the conviction.

Appellant was jointly indicted in the second count of the indictment with Leland Marrow and Gary Johnson as “acting together” in possessing more than four ounces of marihuana.

On May 18, 1979, deputies Don Pollock and Mark Bousquet of the Montgomery County Sheriffs office were working as undercover narcotic officers. Bousquet set up a meeting between Gary Johnson and Pollock, who was posing as a prospective buyer.

Bousquet and Pollock went separately at 12 noon to the meeting place — Kroger store’s parking lot in Conroe. Johnson arrived later in a brown Chevrolet Malibu driven by a young woman. Pollock and Johnson discussed the delivery of marihuana. Gary Johnson talked about selling 100 pounds of marihuana at $300.00 per pound. Pollock showed Johnson $30,000.00 in cash in a bag, which he had temporarily borrowed from the Federal Drug Enforcement Administration. Johnson finally said his “people” only had 63 pounds at the time but were preparing for 42 tons of marihuana. Pollock tape recorded the conversation.

Subsequently that afternoon Pollock had several telephone conversations with Gary Johnson as to the amount of marihuana to be delivered. They agreed on 78 pounds. The parties decided to meet again at the Kroger’s parking lot at 6 p.m. with Gary Johnson to take Bousquet’s vehicle to obtain the marihuana.

Surveillance was set up including a helicopter, a van from which pictures could be taken, and a number of police vehicles. Gary Johnson arrived at 6:15 p.m. in the brown Malibu. Pollock gave Johnson the paper sack in which he previously had the money. This time, however, it contained cut up pieces of a phone book covered by $10.00 bills. Gary Johnson did not look in the sack, but placed it in the trunk of the Malibu. Gary Johnson then took Bous-quet’s green Dodge Dart automobile to obtain the marihuana. He was followed by several police vehicles and by the helicopter.

Deputy sheriff Donald Johnson was a passenger in the helicopter. He observed the green Dodge go North on Hwy. #45, exit onto Fm. Rd. 830 and turn left onto a road and travel for four or five miles before stopping by a trailer house near a lake. Two individuals were outside the house. The driver and the other two went into the house for three or four minutes. One individual then went to a shed and brought back a small package, “some kind of package. I couldn’t tell what it was _” and put it in the trunk of the Dodge. Deputy Johnson from the helicopter then observed that individual (apparently Gary Johnson) get in the driver’s seat of the Dodge and another individual also get in the Dodge. The third individual (later shown to be the appellant) got into a light beige car and followed the green Dodge as it left the trailer house. The cars were kept under surveillance by the helicopter and police motor vehicles as they proceeded into Conroe. It was determined the beige car was a Lincoln Continental with license plate number TQE 810. The vehicles did not proceed to the Kroger’s parking lot, but went to North Hills Shopping Center and stopped. The passenger in the green Dodge got out and entered a white Ford already parked on the lot. The green Dodge and white Ford were then driven across the street to a Gibson’s parking lot. The beige car turned south onto Frazier Street and left the area. Surveillance of that car was lost.

Deputy Johnson was able to observe from the helicopter that the Dodge and Ford parked along side each other in the Gibson’s parking lot, and the individuals removed packages from the trunk of the white Ford and place the same in the trunk of the green Dodge. Both trunks were closed and both individuals got in the Ford and drove toward Kroger’s.

Deputy Pollock, who had been kept informed of developments by police radio, saw Gary Johnson walk around the building at Kroger’s where he was sitting in his car. Gary Johnson told him the Dodge was on another parking lot and they would have to go there to get the marihuana. Gary Johnson rode with Deputy Bousquet in Johnson’s brown Malibu and Pollock drove his own vehicle to the Gibson’s parking lot. Bousquet opened the trunk of the Dodge and examined the contents. He then gave a prearranged signal and Pollock from his vehicle ordered “the arrest.” As police officers converged on Gary Johnson and Bousquet, Pollock drove off. Bousquet was arrested to prevent blowing his cover. The marihuana was seized.

Two or three minutes later the white Ford was stopped near the Gibson’s parking lot and its driver was arrested. He was Leland Morrow.

Approximately 15 to 20 minutes later, the beige Lincoln Continental was stopped on Frazier Street and the driver, the appellant, was arrested. After appellant was outside the car, apparently at the rear, being handcuffed, Patrolman Hightower entered the Continental and found a blue pouch. He unzipped it and found an unloaded pistol. No ammunition was shown to have been found. The Continental was impounded and later searched or inventoried. Deputy Pollock found in the trunk a copy of the Nacogdoches Daily Sentinal, dated May 11, 1979, some duct tape, and some white garbage bags, and a wallet with the identification of Alvin W. Nelson of Madisonville. No marihuana was found in the car. Evidence was offered to show the Continental was leased by Nac Tex Service in Nacogdoches.

A search of appellant’s person revealed some business cards and receipts. A $72.00 receipt was signed “J.D. McGoldrick by Leland,” a receipt on the back of which was written three telephone numbers of Gary Johnson, an Old Mill Inn card on back of which were some calculations and figures were introduced into evidence.

The chain of custody was established and the chemist testified the substance submitted to him was marihuana weighing 71 pounds. Pollock related the marihuana when first found in the Dodge had with pages of the Nacogdoches Daily Sentinal of May 11, 1979, some white garbage bags and some duct tape on some of the packages. He felt these had been misplaced when sent to the chemist. The chemist testified the exhibits as offered were in the same condition as received by him.

Appellant testified he had known Morrow for 12 years and at one time Morrow had run a club for him in Nacogdoches, and that Morrow was a partner with him in a trailer company in Nacogdoches, Nac-Tex Service. That company leased a Chevrolet truck and Lincoln Continental, and that several people had access to the car from time to time.

On the day in question appellant, who lived in Bryan, had been in Groveton and Huntsville, decided to go to Conroe to see about collecting a year old debt of $100 owed him by Tommy Hansen, a son of a long-time friend. The father, Alfred Hansen, had told him his (Hansen’s) son could be contacted through Gary Johnson, and instructed him how to get to Johnson’s trailer house. He had also given appellant Johnson’s telephone numbers.

Appellant drove to the trailer house and encountered Morrow, who said he was in Conroe to visit his children. Johnson, he said, arrived shortly thereafter. When he inquired about Tommy Hansen, Johnson told him Hansen might be at the Moon Palace and to follow him into Conroe and he would show the appellant where the place was.

Appellant related he followed the green Dodge to the North Hills Shopping Center where either Johnson or Morrow directed him how to reach the Moon Palace. He then left and drove to the Moon Palace. He was unable to find Hansen there. He departed for Bryan. Being unfamiliar with Conroe, he drove in the wrong direction. When he realized his mistake and changed directions, he was arrested.

Appellant denied any knowledge of or involvement with the drug transaction.

Alfred Hansen testified appellant told him about his son’s debt and he told appellant his son was probably in Conroe and could be contacted through Gary Johnson. He gave appellant Johnson’s telephone number and directions to the trailer house.

The court submitted only the second count of the indictment, and authorized conviction under the law of parties. See V.T.C.A., Penal Code, § 7.01 and 7.02. The jury found the appellant guilty.

In reviewing the sufficiency of the evidence to sustain the conviction, we observe this Court has held that the standard for such review on appeal is the same for both direct and circumstantial evidence cases. Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983) (opinion on rehearing); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983) (opinion on rehearing); Freeman v. State, 654 S.W.2d 450 (Tex.Cr.App.1983) (opinion on rehearing); Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983). Further, the relevant standard is the one developed by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to wit “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

In Jackson v. State, 672 S.W.2d 801, 803 (Tex.Cr.App.1984), this Court wrote, after noting the above discussed standard:

“In applying the above standard of review, the court agreed that the ‘exclusion of outstanding reasonable hypotheses’ test would still be utilized. The opinion on rehearing in Denby noted that, ‘if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding’ 654 S.W.2d at 456. Similarly, the Denby concurrence stressed that, ‘Logic dictates that if there is a “reasonable hypotheses” other than the guilt of the accused, then it cannot be said that the guilt has been shown “beyond a reasonable doubt.” ’ 654 S.W.2d at 457. In Wilson, Denby, Freeman and Carlsen, this Court also firmly rejected the notion of a presumption on appeal of an accused’s innocence in circumstantial evidence cases.”

Turning to other phases of the applicable law in this circumstantial evidence case, we observe that “possession” means more than being where the action is; it involves the exercise of dominion and control over the thing actually possessed. Brown v. State, 481 P.2d 475 (Okla.Cr.App.1971); Shortnacy v. State, 474 S.W.2d 713, 716 (Tex.Cr.App.1972). See also Hausman v. State, 480 S.W.2d 721, 723 (Tex.Cr.App.1972).

It is well settled though that an accused may with another or others jointly possess dangerous drugs or narcotics and that such possession need not be exclusive. Waldon v. State, 579 S.W.2d 499 (Tex.Cr.App.1979); Reyes v. State, 575 S.W.2d 38, 39 (Tex.Cr.App.1979); Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.1976); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975). Thus facts and circumstances may be sufficient to show an accused and others acted together in possessing a narcotic drug, but there must be some affirmative link existing between the person accused and the narcotic drug. Hausman v. State, supra, and cases there cited. Further, mere presence alone at a place where narcotics or dangerous drugs are being used or possessed by others does not justify a finding of joint possession; Waldon v. State, supra; Reyes v. State, supra; Underwood v. State, 571 S.W.2d 7 (Tex.Cr.App.1978); Ayers v. State, 570 S.W.2d 926 (Tex.Cr.App.1978); Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977), or constitute one a party to an offense. Shortnacy v. State, 474 S.W.2d 713, 716 (Tex.Cr.App.1972); Ware v. State, 467 S.W.2d 256 (Tex.Cr.App.1971).

In Wilkes v. State, 572 S.W.2d 538 (Tex.Cr.App.1978), the crux of the rule was summarized:

“It has been consistently held in this State that possession means more than just being where the action is: the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. * * * Therefore, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband in such a manner that it can be concluded he had knowledge of the contraband as well as control over it .... ” See also Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977).

We have held that both of these elements may be proved circumstantially:

“[Cjontrol may be shown by actual or constructive possession, and knowledge being subjective, must always be inferred to some extent, in the absence of an admission by the accused. An affirmative link to the person accused with the possession of narcotics may be established by showing independent facts and circumstances which indicate the accused’s knowledge and control of the narcotics.” Rodriquez v. State, 496 S.W.2d 46 (Tex.Cr.App.1973).

In Sewell v. State, 578 S.W.2d 131 (Tex.Cr.App.1979), a panel of this Court held (1) the independent facts and circumstances shown by the testimony did not exclude every reasonable hypothesis other than that the defendant knew of and exercised control over the marihuana and (2) the evidence was insufficient to show that the defendant was a party to the possession of marihuana, where the evidence showed that the defendant was a passenger in a car driven by co-defendant for a prolonged period of time before the commission of the alleged offense of possession of marihuana, but there was no evidence of any aiding in the carrying out of the offense in any way other than riding in the car.

In Sewell, this Court wrote:

“This Court has carefully reviewed the ‘affirmative link’ in numerous cases. We have held that even when the defendant is present at the scene, there must be additional facts to show knowledge and control. Underwood v. State, 571 S.W.2d 7 (Tex.Cr.App.1978); Harrison v. State, supra. For example, in Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972) we concluded that even though officers had observed persons smoking around a campfire and appellant was found sleeping by the fire with a bag of marihuana one foot from his head, the evidence was insufficient to show exercise of control over the substance. In the recent case of Nieves v. State, 575 S.W.2d 38 (Tex.Cr.App.1979), we concluded that the evidence was insufficient to find knowledge of the contraband when the defendant was sitting in the cab of a truck containing over 600 pounds of marihuana.
“Since appellant was not identified at the scene where the marihuana was found, we must look with even closer scrutiny at the independent facts from which we are to infer that he knew of and exercised control over the substance. The evidence presented by the State shows that appellant was seen in the company of Otley Smith of El Paso and that he traveled at least as far as Loving-ton, New Mexico in the Trans Am driven by Smith. The positive identification of appellant was made at Lovington. However, since the car was followed from Lovington to Bronco, Texas without stopping, and two people were observed as passengers in the car, we may reasonably conclude that appellant traveled as far as Bronco. However, the car was lost temporarily south of Bronco, and the passengers in the Trans Am were not viewed during the time the car was parked on the side road north of Bronco. The officers’ testimony as to the time the car was parked in that location varied from twenty minutes to one and a half hours. One agent saw three people at the scene of the trailer, and only two were arrested. However, the agent could not identify that third person. The State’s case requires a finding that: (1) the evidence circumstantially proves that appellant was in the area where the marihuana was found, and (2) that his presence in the area combined with his association with Smith is sufficient to show knowledge and control over the contraband. We conclude that the evidence does not justify such a finding. * * *
“The question remains whether the evidence was sufficient to show that appellant was a party to the possession of marihuana [V.T.C.A., Penal Code, §§ 7.01, 7.02]_ The State must prove that the defendant acted with intent to promote or assist in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in its commission. V.T.C.A., Penal Code, § 7.02(a)(2). This can be done by circumstantial evidence. Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976). Further, the evidence is viewed in regards to events before, during and after commission of the offense. Wygal v. State, 555 S.W.2d 465 (Tex.Cr.App.1977); Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975).
“The only evidence in this case involving appellant was as to events before the offense occurred. The evidence shows that appellant was a passenger in the Trans Am driven by Smith for a prolonged period of time before the commission of the alleged offense. There is no evidence, however, of any aiding in the carrying out of the offense in any way other than riding in the car. We do not believe that the new party statute was intended to extend criminal liability to that extent. Absent other facts and circumstances showing that appellant encouraged or aided the criminal conduct, we hold the evidence to be insufficient.”

In Dubry v. State, 582 S.W.2d 841 (Tex.Cr.App.1979), it was held that although evidence strongly suggested that defendants knew that marihuana was at the. airport where it was unloaded from an airplane, evidence was insufficient to affirmatively link defendants to marihuana to such an extent that it could be inferred that they exercised care, control or management over the marihuana and was therefore insufficient to support their convictions. See also Heltcel v. State, 583 S.W.2d 791 (Tex.Cr.App.1979); Wilkes v. State, supra; Waldon v. State, supra; Sinor v. State, 612 S.W.2d 591 (Tex.Cr.App.1981).

The State in the instant case contends there are “numerous independent facts from which to infer that defendant knew of and exercised control over the substance.” It points to Gary Johnson’s reference to his suppliers as “they” and reference to older fellows around 45 or 50 years old. It notes appellant admitted he was 52 years old and the Morrow was his business associate in other business enterprises. It relies heavily upon what it says is evidence appellant was at Gary Johnson’s trailer house when Johnson first loaded contraband into the Dodge. It points to evidence appellant followed the Dodge to the North Hills Shopping Center, the second loading area, and that in his car trunk were found items similar to those found with the marihuana in the Dodge, the wallet with identification of the man to whom the white Ford was leased. It observes that appellant had on his person Gary Johnson’s telephone numbers, a receipt linking him to a “Leland,” and card with calculations roughly similar to the transaction in question. The State argues the unbelievability of appellant’s story of why he was in Conroe and still in the vicinity shortly after the arrest of his co-defendants.

Appellant argues the evidence does not show he was ever in position to have viewed any marihuana, that he was never shown to he loading, unloading or otherwise handling the marihuana, that the marihuana was not shown to be located in a vehicle or on premises owned or controlled by him; that no marihuana was found on his person or in the vehicle he was driving, and that there was no odor of marihuana about him and he was not under the influence of marihuana.

One difficulty with the State’s argument relates to the “contraband” loaded in the Dodge at Gary Johnson’s trailer house. Deputy Johnson, observing from the helicopter, stated when the individual (apparently Gary Johnson) went to the shed and obtained “some kind of package,” not very large, the other two individuals were not in a position to see Gary Johnson. There was no showing that Deputy Johnson ever identified anything found in the Dodge’s trunk as even resembling that “some kind of package,” and no showing the marihuana found was in similar packages. Deputy Bousquet and other officers present at the arrest of Gary Johnson were not called to testify. What all was in the trunk of the Dodge was not revealed. Deputy Pollock saw the open trunk from his position in another vehicle, and then testified as to the marihuana at the sheriff’s office and being transferred to the chemist. Clearly the evidence that the “some kind of package” placed in the trunk of the Dodge by Gary Johnson at his trailer house contained “contraband” is nil. But, even if the evidence showed the package contained contraband, the conclusion would not be changed.

While the facts are “highly suspicious,” Wdldon v. State, supra; Druby v. State, supra, the State did not sustain its burden of proof that appellant was a party to the offense of possession of marihuana by Gary Johnson and Morrow. We cannot conclude that a rational trier of the facts could have found the essential elements of the offense. See Jackson v. Virginia, supra.

In view of our disposition, we need not reach the grounds of error regarding the hearsay testimony of Gary Johnson, the lack of probable cause to stop and search appellant’s vehicle and the complained of jury argument.

The judgment is reversed and an acquittal is ordered in light of the decisions of the United States Supreme Court in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). See also Heltcel v. State, supra; Reyes v. State, 575 S.W.2d 38, 40 (Tex.Cr.App.1979), and cases there cited.

      . The tape recording was introduced over objection.

      . This witness is not to be confused with Gary Johnson, a co-defendant.

      . Pollock, from his position in another vehicle, described the trunk as containing boxes, bundles and packages. He later described the marihuana at the police station as being in "bales," bundles and packages. It was estimated at 78 pounds.

      . Evidence was offered to show that the white Ford involved was leased to Nelson. There was also evidence that Nelson never claimed the wallet as his.

      .Pollock testified the card had “calculations and figures TLW 78 multiplied by 3 and then there is some subtractions out from underneath. The total would be 23,400 less 1950 for 21450 less 1750 for a total at the bottom of the card of 19,700."

      . He explained the pistol had been left with him by a friend who could not carry it with him on a commercial airlines flight. He had not been able to return the unloaded pistol when he expected to and had forgotten it was in the car.

      . In applying the law to the facts, the court instructed the jury:
      "Now if you find from the evidence beyond a reasonable doubt that on or about the 18th day of May, 1979, in Montgomery County, Texas, Leland Morrow or Gary E. Johnson, did then and there knowingly and intentionally possess a usable quantity of marihuana of more than four ounces, and if you further find from the evidence beyond a reasonable doubt that the defendant, John D. McGol-drick, Jr., knew of the intent of Leland Morrow or Gary E. Johnson, if any there was, to possess a usable quantity of marihuana of more than four ounces, and that he, John D. McGoldrick, Jr., acted with intent to promote or assist the commission of the offense by Leland Morrow or Gary E. Johnson by encouraging, directing, aiding or attempting to aid, Leland Morrow or Gary E. Johnson to commit the offense, if any, then you will find the defendant guilty of possession of a usable quantity of marihuana of more than four ounces.”
      The court also charged that mere presence alone is not sufficient to convict, and on the law of circumstantial evidence.


text:
    Ex parte Luis GARCIA.
    No. 69350.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 9, 1985.
    David Aken, Sinton, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This post-conviction habeas corpus proceeding was brought under Article 11.07, Y.A.C.C.P.

Applicant, convicted of robbery upon his plea of guilty before the court, alleges that his plea bargain with the State was broken when the trial judge made an affirmative finding in the judgment that a deadly weapon was used or exhibited during the offense. See Article 42.12, §§ 3f(a)(2) and 15(b), V.A.C.C.P.

Both the original and supplemental applications for habeas corpus filed in the convicting court have been forwarded to this court.

The record reflects that applicant was jointly indicted with Rudolfo Fuentes for aggravated robbery in Cause No. 5831-2 in the 36th district Court of San Patricio County on or about September 3, 1982. While the indictment alleged that applicant Garcia and Fuentes were “acting together,” it alleges only that Fuentes “did then and there use and exhibit a deadly weapon, to wit: a firearm.”

On February 15, 1983, the applicant waived trial by jury, and with the approval of the State, entered a plea of guilty to the lesser included offense of robbery. He was duly admonished by the court of the consequences of his plea. See Article 26.-13, V.A.C.C.P. The evidence was stipulated. The prosecutor then expressly recommended to the court a punishment of six years’ confinement in the Department of Corrections and a fine of $2,500.00, and asked the court, in accepting this recommended penalty, to take into consideration the applicant’s admission of guilt to the aggravated robbery indictment in another cause — 5832-2—as the court was permitted to do under V.T.C.A., Penal Code, § 12.45. No mention was made of any finding or non-finding of the use or exhibition of a deadly weapon. The recommendation was accepted by the court, punishment was announced, and sentence was imposed. No appeal was taken.

In the formal judgment the trial judge entered an affirmative finding that a deadly weapon was used or exhibited.

In his sworn allegations, applicant asserts the prosecutor, in agreeing to the plea bargain to the lesser included offense of robbery, assured him as a part of the plea bargain that there would be no finding as to a deadly weapon, and that he relied upon this assurance in entering his guilty plea.

The affidavit of applicant’s trial counsel was attached to the pleadings. Counsel stated he was informed by the prosecutor that a finding would be made from the evidence appearing in the stipulation to be signed by the applicant. Counsel stated the stipulation “did not include any language about a deadly weapon” and that no affirmative finding as to such was announced from the bench. Counsel stated he had discussed the matter with the applicant, and applicant had relied on the representation that there was not to be a finding of a deadly weapon in any of his cases when he decided to accept the plea bargain.

Attention is also called to that part of the admonishment wherein the court stated: “So now, considering the charge of robbery which is a lesser included offense of the same nature that is not including the use of a firearm, how does the Defendant plead to that charge?” “THE DEFENDANT: Guilty, ma’am.” It is argued that the court thus led the applicant to believe his expectations had been met.

An examination of the stipulated evidence does not show that the applicant ever used or exhibited a deadly weapon. His written judicial confession simply recited his guilt. The offense reports which formed a part of the stipulations reflect the bank teller, who was robbed by Fuentes, did not see him with a gun, and it was not used or exhibited by Fuentes during the course of the robbery.

The reports show another witness and the applicant told police they observed a weapon in the waistband of the robber’s pants. It was also reflected that when apprehended Fuentes implicated applicant as being present in the bank if anything went wrong. There was no showing applicant was ever armed.

The State filed no answer to applicant’s habeas corpus pleadings and no controverting affidavits. In fact, the prosecutor has made no effort in any fact to controvert the sworn allegations of the applicant.

The trial judge filed her affidavit reciting the details of the guilty plea. She stated, inter alia, that she had misgivings and reservations about the prosecutor’s recommended “light” punishment since two serious crimes were involved, but after consideration agreed to accept the recommendation. She deposed that all parties were before the court at the time of the guilty plea and no mention was made of any affirmative finding as to the use of a deadly weapon. She concluded the evidence in both cases showed the use of a deadly weapon. The judge declined to remove the “notation” from the judgment in the robbery case.

Appellant relies upon Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971), where the United States Supreme Court stated that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

In Ex parte Rogers, 629 S.W.2d 741 (Tex.Cr.App.1982), this Court wrote:

“When a defendant enters a plea of guilty or nolo contendere pursuant to a plea bargain agreement, the State is bound to carry out its side of the bargain. DeRusse v. State, 579 S.W.2d 224, Tex.Cr.App. If the prosecution does not live up to its part of a plea bargain and such bargain was used as an inducement for the guilty plea, doubt is raised as to whether a guilty plea under such circumstances can be regarded as truly voluntary. Bass v. State, 576 S.W.2d 400, Tex.Cr.App. * * * The appropriate relief for the failure to keep a plea bargain is either specific enforcement of the agreement or withdrawal of the plea, depending upon the circumstances of each case. Joiner v. State, 578 S.W.2d 739, Tex.Cr.App.”

We conclude from the record before us that applicant is entitled to that portion of the relief prayed, to-wit: that the affirmative finding a deadly weapon was used be deleted from the judgment in Cause No. 5831-2 in the 36th District Court of San Patricio County.

It is so ordered.

      . Article 42.12, § 15(b), supra, provides:
      "A prisoner under sentence of death is not eligible for parole. If a prisoner is serving a sentence for the offenses listed in Section 3f(a)(l) of this Article or if the judgment contains an affirmative finding under Section 3f(a)(2) of this Article, he is not eligible for release on parole until his actual calendar time served, without consideration of good conduct time, equals one-third of the maximum sentence or 20 calendar years, whichever is less, but in no event shall he be eligible for release on parole in less than two calendar years. All other prisoners shall be eligible for release on parole when their calendar time served plus good conduct time equals one-third of the maximum sentence imposed or 20 years, whichever is less.”


author: DIES, Chief Justice.

text:
    Robert Lewis ASKEW, Appellant, v. The STATE of Texas, Appellee.
    No. 09-83-052-CR.
    Court of Appeals of Texas, Beaumont.
    Feb. 29, 1984.
    Rehearing Denied March 21, 1984.
    Discretionary Review Refused Oct. 31, 1984.
    Thomas P. Roebuck, Beaumont, for appellant.
    John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.
   OPINION

DIES, Chief Justice.

Appellant was convicted by a jury of aggravated robbery, and the jury assessed his punishment at twenty-five years in the Texas Department of Corrections. Appellant has perfected appeal to this Court.

His first ground of error follows: “The trial court erred in failing to grant appellant’s motion for mistrial in response to the prosecutor’s comments in closing argument at the punishment phase regarding extraneous offenses allegedly committed by the appellant.” Specifically, the argument complained of is set out below:

“[PROSECUTOR]: Look at these. I think that we can all agree that he is not a very credible person. If you want to feel sorry, maybe we should feel sorry for Marjorie Dean. Who put Marjorie Dean in the situation where she was? Remember the way she referred to herself as she was his old lady? Who put her in that position? But yet Mr. Askew is electing to have the jury assess punishment while Mrs. Dean elected to have the Court assess her punishment. But look at what he says. He says, well, I never intended to steal that car and you people are wrong in finding me guilty of committing that aggravated robbery. I am sorry I did it, in fact, I think I might even have told the fellow I stole the car from I was sorry out there on the day that it happened. But look at what he hasn’t said. He doesn’t say anything about Mrs. McCloney. He doesn’t say anything about the woman with her 7-year-old child that—
“[DEFENSE COUNSEL]: Your Hon- or, we are going to object to that. I don’t think it is proper to argue an extraneous offense in the punishment of this case.
“THE COURT: Sustain the objection. Stay away from that area, Counselor.” Later in closing argument, the prosecutor said:
“But most of all let’s go back and look at the way he has conducted this trial. He got up here and told you that the police officer didn’t tell the truth. He told you that Mrs. McCloney didn’t tell the truth. He told you several people didn’t tell the truth. But if you believe him, anything he says, give him credit for it. If you want to give him credit for it, then you start off there at the bottom. But what have we got here? We have got some people that are passing through our county. What is about the only thing they do here in Jefferson County? They try to steal a car and then steal a car at gunpoint.
“[DEFENSE COUNSEL]: Your Hon- or, again we object and ask that Counsel be directed to stay away from that area and—
“THE COURT: Give me an objection.”
“[DEFENSE COUNSEL]: I object to him alluding to extraneous offenses again.
“THE COURT: Sustain the objection.
“[DEFENSE COUNSEL]: We ask you to instruct the jury to disregard his statement, Your Honor.
“THE COURT: The jury will disregard any comment by [Prosecutor] that may allude to any other offense other than the one that is on trial.
“[DEFENSE COUNSEL]: We ask for a mistrial, Your Honor.
“THE COURT: Mistrial denied.”

We first note that the ground of error is multifarious in that it refers to more than one portion of the prosecutor’s argument. Morgan v. State, 545 S.W.2d 811 (Tex.Crim.App.1977). The trial court sustained appellant’s objection to the first portion. This was all the relief sought by appellant at that point. See Cherry v. State, 488 S.W.2d 744 (Tex.Crim.App.1972), cert. denied, 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199 (1973).

In Smith v. State, 653 S.W.2d 835, 841 (Tex.App.-Corpus Christi 1982, no writ), we find:

“The test as to whether an improper argument constitutes reversible error is whether (1) it is manifestly improper, harmful or prejudicial, or (2) it is viola-tive of a statute, or (3) it injects a new and harmful fact into the case.... The harmful effect of an improper argument is generally cured by an instruction to disregard....”

This ground of error is overruled.

Appellant’s final ground of error states: “The prosecutor erred in closing argument at the punishment phase in commenting adversely on the appellant’s availing himself of his fundamental right to a trial by jury.” Specifically, the prosecutor made the following argument:

“I am talking about the travesty that he put you citizens through and put the Court through going through this trial and the way that he testified and the way his witnesses testified.”

At the outset, we note that the ground of error should be addressed to a ruling, charge, or failure by the Court deemed error, and not by the prosecutor. TEX.CODE CRIM.PROC.ANN.PROC. ANN. art. 40.09(9) (Vernon Supp.1982-1983). We do not believe the language used by the prosecutor commented adversely on the appellant seeking a jury trial, or was so understood by the jury. Further, appellant made no objection to the argument, so nothing is presented for review. See 23 TEX.JUR.3d, Criminal Law § 2928, at 743, 744 (1982). This ground of error is overruled.

The judgment of the trial court is affirmed.

Affirmed.