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

text:
    Clarence Joseph LAMBRECHT, Appellant, v. The STATE of Texas, Appellee.
    No. 279-84.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 19, 1984.

      Travis B. Bryan, III, on appeal only, Bryan, for appellant.
    Jeffrey K. Brown, Co. Atty. and Laura Marie Hubert, Asst. Co. Atty., Bryan, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

In an unpublished opinion, the Waco Court of Appeals affirmed appellant’s misdemeanor conviction for criminal trespass in which the county court at law had assessed a $100.00 fine and 60 days in jail, probated for 180 days. Citing Article 40.-09(9), V.A.C.C.P., the court of appeals observed that no brief had been filed on appellant’s behalf and the record contained neither assertion nor showing of indigence.

In an untimely motion for rehearing, counsel, apparently retained by appellant, for the first time asserted “appellant was unrepresented at trial and on appeal [and] ... has never knowingly and intelligently and voluntarily waived his right to counsel.” Counsel did not allege appellant was or had been indigent. The court of appeals denied this motion for rehearing.

In a petition for discretionary review to this Court, counsel for appellant averred he had been “hired by appellant” and presented a single ground for review:

“The Court of Appeals erred in holding that appellant waived his right to counsel and that there was therefore no fundamental error which decision on an important question of State and Federal law is in conflict with the applicable decisions of the Court of Criminal Appeals and the Supreme Court of the United States.”

In appellant’s brief filed in this Court, counsel argues the trial court’s failure to admonish appellant of the “dangers and disadvantages of self-representation” alluded to in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), constitutes a per se establishment of appellant’s failure to comprehend his right to counsel and that no valid waiver thereof was made.

Our review of the statement of facts which is before us, however, reveals no assertion by appellant of his independent right to self-representation. As the court below noted, the record in no way indicates appellant was indigent at the time of trial and we observe it in fact seems to suggest otherwise. Finally, the record reveals the trial judge nevertheless appointed counsel to represent appellant, but appellant instructed him not to cross-examine the State’s witnesses or voice objections.

Further, it appears that appellant’s failure timely to present to the court of appeals the claim he now makes was entirely due to decisions made by him alone. The Rules of Post Trial and Appellate Procedure in Criminal Cases governing petitions for discretionary review in this Court do not authorize review of claims which have not been presented in an orderly fashion and determined by the appropriate court of appeals. See Noel v. State (Tex.Cr.App., No. 827-83, delivered March 14, 1984).

Under the circumstances presented, the court of appeals correctly resolved appellant’s appeal and the judgment of that court is therefore affirmed.

ONION, P.J., and CAMPBELL, J., concur in result.

TEAGUE, Judge,

dissenting.

The issue that is before this Court is not whether Clarence Joseph Lambrecht, appellant, affirmatively, knowingly, intelligently, and voluntarily waived his right to the assistance of counsel, because the record clearly reflects that he affirmatively, knowingly, intelligently, and voluntarily waived his right to have the assistance of counsel. The issue that should be, but is not decided by the majority is whether the record clearly reflects that appellant was adequately warned as to the dangers and disadvantages of self-representation, cf. Johnson v. State, 614 S.W.2d 116, 119-120 (Tex.Cr.App.1981) (Opinion on State’s Motion for Rehearing), which admonishment was mandated by the Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Such a claim, that the trial judge did not so admonish the appellant, is of constitutional dimension and may be raised as late as the filing of the motion for rehearing in the court of appeals. See and compare Lopez v. State (Tex.Cr.App., No. 509-83, March 28, 1984) (the issue of jury waiver may be raised for the first time on discretionary review.) Also see Howeth v. State, 645 S.W.2d 787 (Tex.Cr.App.1983), in which this Court had occasion to grant a defendant’s petition for discretionary for one reason, but actually reviewed unassigned error in the form of sufficiency of the evidence — even though the court of appeals had failed or declined to consider this issue, presumably because the issue was not presented to that court for review. The issue was decided by this Court ex mero motu or ex proprio motu or sua sponte, because sufficiency of the evidence to support a conviction implicates the Fourteenth Amendment to the Constitution of the United States and the due course of law clause of the Texas Constitution.

However, the majority opinion, without limitation or restriction, states the following: “The Rules of Post Trial and Appellate Procedure in Criminal Cases governing petitions for discretionary review in this Court do not authorize review of claims which have not been presented in an orderly fashion and determined by the appropriate court of appeals. See Noel v. State, (Tex.Cr.App., No. 827-83, delivered March 14, 1984).” This statement, as far as applicable to the State, is correct. Unfortunately, by its failure to also state that in Noel v. State, supra, this Court restricted and limited this holding to the State, because “we find no analogous constitutional guaranty to, or protection of, the State, to those contained in the Due Process Clauses of our State and Federal constitutions protecting citizen,” the majority opinion leaves a false impression, that such a rule of law is applicable to both the defendant and the State. That is simply not so. Also see Todd v. State, 661 S.W.2d 116, 118 (Tex.Cr.App.1983).

The constitutional issue of whether the trial judge warned appellant of the dangers and disadvantages of self-representation is squarely before this Court and cries out for an answer. The majority, however, without much finesse I might add, refuses to decide the issue, but tells the appellant in note 4 that “Our action today is without prejudice to appellant ⅛ pursue postconviction remedies pursuant to Chapter 11 of the Code of Criminal Procedure...” Compare, however, what the author of the majority opinion stated in the dissenting opinion he filed in Dees v. State, 676 S.W.2d 403, 408, (Tex.Cr.App.1984), “The message the Court sends in note 1 reveals the folly in what it is doing today. Thus, wasted are the time, efforts and costs expended by all involved following the judgment of the trial court, in favor of having them replicated in another procedural setting...” Is that not exactly what the majority is doing in this instance?

Faretta held that the trial court in that cause constitutionally erred when it ruled that the defendant in that cause could not represent himself. Faretta also made the distinction between the right to counsel and the right to self-representation, and held that the right to self-representation arises independently of the right to have an attorney, or the waiver thereto. In this instance, the record unequivocally reflects that appellant affirmatively, intelligently, voluntarily and knowingly waived his right to counsel. Furthermore, but as the majority opinion points out, the trial court furnished appellant with standby counsel.

However, the Supreme Court in Faretta mandated that before a defendant is permitted to represent himself, the record must clearly establish that he knew what he was doing and his choice was made with his eyes open, i.e., he must be admonished by the trial judge as to the dangers and disadvantages of self-representation.

In this instance, the record clearly reflects that the trial judge did not admonish the appellant as to the dangers and disadvantages of self-representation. The record is totally devoid of any of the admonishments about the dangers and disadvantages of self-representation required by Faretta. The failure of the record to show that appellant was adequately warned as to the dangers and disadvantages of self-representation requires that appellant’s conviction be reversed. The majority errs in not reversing the appellant’s conviction.

I respectfully dissent.

MILLER, Judge,

dissenting.

I am somewhat surprised the author of the majority opinion does not analyze the ease under the rationale of the majority opinion in Blankenship v. State, 673 S.W.2d 578 (Tex.Cr.App.1984).

For its failure to do so and for the reasons in Judge Teague’s opinion, I dissent.

      . But see Martin v. State, 630 S.W.2d 952 (Tex.Cr.App.1982) in which the Court acknowledged the Supreme Court’s reasoning that the independent right to self-representation does not arise from the accused’s power to waive assistance of counsel and observed that prior decisions of this Court which had iterated exacting "requisites" for establishing a knowing waiver of counsel, [e.g., Barbour v. State, 551 S.W.2d 371 (Tex.Cr.App.1977); Goodman v. State, 591 S.W.2d 498 (Tex.Cr.App.1980); and Geeslin v. State, 600 S.W.2d 309 (Tex.Cr.App.1980) ], had read Faretta incorrectly. We stated:
      "The Faretta opinion simply cannot reasonably be read to require that a trial judge spread upon the record all such information and data about an accused that might conceivably impugn his decision to represent himself. ...”
      630 S.W.2d at 954, n. 5; see also Blankenship v. State, 673 S.W.2d 578, 586, n. 1 (Tex.Cr.App.1984) (Opinion concurring).
      Thus, the validity of the premise of appellant’s argument — that the trial court’s failure to admonish him in accordance with Geeslin, supra, violates Faretta-is doubtful.

      . An independent right, we repeat, which does not arise from the power to waive the assistance of counsel. See n. 1, ante. Thus, it is not at all clear that the right to self-representation is automatically invoked by an accused’s expression of his desire to waive assistance of a lawyer.

      . Citizens are, however, unlike the State, entitled to protections of due process and due course of law. See n. 4, post.

      . Our action today is without prejudice to appellant to pursue postconviction remedies pursuant to Chapter 11 of the Code of Criminal Procedure, wherein he may fully develop his indigen-cy at the time of trial, his assertion of the right to self-representation and any other facts material to determination of his claim which are not established by the record before us, if such facts can be developed.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Theresa Ann TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 66037.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 19, 1984.

      James N. Johnson, Tyler, for appellant.
    Hunter B. Brush, Dist. Atty. and Dale Paul Summa, Asst. Dist. Atty., Tyler, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for welfare fraud under Article 695c, Section 34(2), V.A.C.S., which made it an offense to obtain by fraudulent means assistance from the Welfare Department greater than that to which the individual was entitled. Punishment was assessed by the jury at 6 months probated for one year.

Appellant asserts in her first ground of error that the trial court erred by denying a motion for an instructed verdict. Appellant urges that the statement, made by her and signed on April 10, 1977, and introduced by the State, was not proven false. We construe the ground of error as a challenge to the sufficiency of the evidence.

On April 10, 1977, appellant submitted a form for assistance under the Aid to Families with Dependent Children (AFDC) program. In it she stated she was unemployed. This representation was confirmed in an interview of appellant by a caseworker on April 18. Under the theory submitted in the court’s charge to the jury, the State was required to prove appellant “falsely stated or represented to the Texas State Department of Public Welfare that she was unemployed when in truth and in fact [she] was employed.” There is no doubt that appellant made representations that she was unemployed and that she received benefits based on those representations. The issue on appeal is whether she was “in truth and in fact” employed when she made those representations.

The State in its brief relies on evidence that appellant was working in May, the month after she made representations that she was unemployed. That evidence does not prove she was working in April, and therefore could not prove her representation that she was unemployed was false when made in April.

We find only one reference in the record to employment in April. A.R. Barron, one of the two rose growers who testified about employing appellant during May, gave the following testimony:

“Q. Mr. Barron, how were these people employed or how were they paid, were they paid by the week, by the month?
“A. Paid them by the thousand or how many roses they budded.
“Q. Did you pay them daily?
“A. No, at the end of each week, ordinarily.
“Q. Okay. In May of 1977, did you have occasion to employ one, Theresa Ann Taylor?
“A. I did.
“Q. Did you have an occasion to employ Miss Taylor to do contract work in your rose fields during the month of May, 1977?
“A. Yes, sir.
“Q. Was she paid for this work?
“A. Yes, sir.
“Q. Could you tell the jury the date and the amount she was paid?
“A. In May the 19th, I paid her $42.55.
“Q. Thank you. And the next.
“A. In April the 14th, $10.00.
“Q. Was that the only payment during May?
“A. Yes, sir.
“Q. Could I see that cheek, Mr. Barron?
“MR. SABEN: Cpuld I have that marked as State’s Exhibit No. 2?
(REPORTER’S NOTE: Document was marked for identification as State’s Exhibit No. 2 at request of counsel.)
“A. I will show you what has been noted as State’s Exhibit No. 2, is that the check that was paid to Miss Taylor for that work in the month of May, 1977?
“A. Yes.”

There are two reasons why we are unable to find that this single reference to an April check is sufficient evidence to sustain appellant’s conviction.

First, although the witness did state the day of the month on the check, the year was not stated, and this was the only cheek of the seven referred to by the two employer witnesses that was not introduced as an exhibit. From the context it could well be that the April check was issued in April of 1978, or even 1979 (trial was in August of 1979), instead of 1977. The record simply does not show. We cannot imagine why the April check was not introduced if it in fact was issued the same April. At trial the State appears to have had no interest in proving up the April check.

A second reason we find the testimony about the April check insufficient to support the conviction is reflected in the examination of Barron on voir dire by defense counsel immediately following the testimony quoted above:

“Q. Mr. Barron, it’s a standard practice of yours and your wife’s is it not, to occasionally loan money to people who you have working for you, isn’t it?
“A. A little bit, maybe, not much.
“Q. Right. But you do occasionally loan money to your workers?
“A. Yes.
“Q. All right. When you do that, you need to make a record and do make a record in your business records, do you not?
“A. That’s right.
“Q. All right. You don’t, however, put those down as loans, do you? You put them down as labor and later when the people do work for you and you take it out of their pay checks, there is nothing improper about that. It just indicates labor when it’s not necessarily labor; it may be a loan at that time, isn’t that correct?
“A. I believe so.”

It would be speculation to assume the April check was for work done by appellant. Since the check is not in evidence, we may not examine any notation on the check (such as “forking cuttings,” “hoeing roses” or “labor,” as appear on the May checks in the record). Furthermore, Barron admitted that loans are sometimes made by a check indicating labor. So even if the April check were in evidence and recited “labor,” it would be speculation to conclude from the check alone that appellant was employed at that time.

We find the evidence is insufficient to prove appellant falsely represented that she was unemployed when she in fact was employed.

The judgment is reversed and the cause remanded for entry of a judgment of acquittal.

W.C. DAVIS, McCORMICK and CAMPBELL, JJ., dissent.

      . This statute was repealed by Acts 1977, 65th Leg., p. 637, ch. 235, § 1, effective May 25, 1977.


author: ROBERTSON, Justice.

text:
    Jackie GOFF, Appellant, v. STATE of Texas, Appellee.
    No. B14-82-287-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 9, 1983.
    Review Refused Oct. 19, 1983.
    Rehearing Granted Dec. 7, 1983.

      William W. Vance, Bryan, for appellant.
    Travis B. Bryan, III, Bryan, for appellee.
    PAUL PRESSLER, ROBERTSON and CANNON, JJ.
   ROBERTSON, Justice.

The jury rejected appellant’s not guilty plea to the offense of murder and, after finding the enhancement paragraph in the indictment to be true, assessed punishment at ninety years confinement. Appellant asserts ten grounds of error to reverse his conviction. We affirm.

While appellant does not contest the sufficiency of the evidence, a short recital of the facts would be helpful. On the morning of March 6, 1981, the deceased’s body with sixteen stab wounds in it was discovered in a ditch across the highway from a club called the Blue Dolphin in Brazos County, south of College Station, Texas. From the evidence, it appears the deceased, appellant, and two other men decided to go outside of the Blue Dolphin Club and engage in a fight. Both the deceased and appellant were intoxicated. There was a fact dispute as to how many of this group went out at the same time; however, the end result was the deceased being stabbed sixteen times and his body dragged across the highway and left in a ditch. Appellant testified he and the deceased had a fight on the night of March 5, 1981; during the course of the fight he was stabbed in the leg by the deceased; he pulled his own knife and stabbed the deceased twice and then collapsed from his own wound; he then saw one of the other men, Eric Ryan, fighting with the deceased, but Ryan did not have a knife nor did he see Ryan stab the deceased. Appellant denied stabbing the deceased sixteen times and denied intending to kill him.

In his first ground of error, appellant contends the trial court erred in overruling his motion to dismiss the prosecution due to a violation of TEX.CRIM.CODE PROC.ANN. art. 32A.02 (Vernon Supp. 1982-1983) (Texas Speedy Trial Act). Appellant was arrested in Nebraska for this offense on April 26, 1981, and returned to Brazos County on July 7, 1981. Three separate indictments were returned in this cause: June 25,1981, October 29,1981, and December 17, 1981, respectively. On August 31, 1981, the state filed a written announcement of ready for trial with the trial court. When a declaration of readiness is made, there is a prima facie showing of conformity to the speedy trial act. This may be rebutted by the accused with evidence which demonstrates that the state was not ready within the act’s time limit. Lopez v. State, 628 S.W.2d 82 (Tex.Crim.App.1982). Appellant did not assert his right to a speedy trial until April 2, 1982. The speedy trial act is addressed to prose-cutorial delay rather than the judicial process as a whole. Ostoja v. State, 631 S.W.2d 165 (Tex.Crim.App.1982). The record reflects appellant’s first attorney filed several pre-trial motions on August 12, 1981. One motion which called for the recusal of the trial judge was granted. Later, on November 2, 1981, appellant’s second attorney was appointed. The case was originally scheduled for trial on November 23, 1981. However, at the hearing on appellant’s motion to dismiss because of a violation of the speedy trial act, appellant’s attorney testified that it was not in the best interest of his client that the trial commence on November 23, 1981. Appellant contends that because the indictment he was tried under was not returned until December 17, 1981, the state could not have been ready for trial on August 31, 1981. However, the prosecutor stated he was prepared to go forward with the trial on the original indictment of June 25, 1981. We find no evidence to rebut the state’s announcement of readiness. Appellant’s first ground of error is overruled.

Appellant’s second ground of error contends the trial court erred in overruling his objection to an improper jury argument by the prosecutor during the punishment phase of the trial. Over appellant’s objection, the state was permitted to argue in reference to appellant, “This man cannot be rehabilitated....” Appellant argues the harm of the erroneous argument is readily apparent in this case because the jury assessed punishment at ninety years confinement. We need not decide if the argument could be considered improper because appellant failed to object earlier when the prosecutor made essentially the same argument: “Because rehabilitation is really not a factor for this man. This man has told you by his past actions, which is the best indicator of all what he is going to do in the future that he can’t be rehabilitated .... ” When no objection was made at the first opportunity, the argument did not constitute error. Rodriquez v. State, 614 S.W.2d 448 (Tex.Crim.App.1981). Appellant’s second ground of error is overruled.

Appellant’s third ground of error contends the trial court erred in submitting an instruction on the law of parties. In the application paragraph of the charge, the court authorized a conviction if the jury found appellant was a party to the offense with one of the other men, Eric Ryan. Appellant argues the charge should not have been submitted because the evidence showed “at most” Eric Ryan was merely present at the scene. However, appellant’s own testimony shows otherwise. Appellant admitted he and Ryan were fighting with the deceased when appellant stabbed and cut the deceased. After stabbing the deceased, appellant stopped fighting but the deceased and Ryan continued. While denying he killed the deceased, appellant admitted he had a good idea of who did. The only person whom appellant would admit was fighting with the deceased was Ryan. The proof of appellant’s presence at the scene and his active participation with Ryan in the attack upon the deceased authorized submission of such theory of parties to the jury. Flores v. State, 372 S.W.2d 687 (Tex.Crim.App.1963). Appellant’s third ground of error is overruled.

In his fourth and fifth grounds of error, respectively, appellant contends the trial court erred in overruling his objection to the admission of evidence concerning an extraneous offense, and to the prosecutor’s argument urging the jury to convict on the basis of that extraneous offense. During trial, Richard Gulledge of the Brazos County Sheriff’s Office was permitted to relate the details of appellant’s attempt to escape from jail. Gulledge stated he found some drill bits, hacksaw blades, and a map of the courthouse in appellant’s cell. He further stated the duct work within the cell evidenced fresh scratch marks. The trial court overruled appellant’s objection that the above testimony concerned an inadmissible extraneous offense. Evidence of a defendant’s attempt to escape from jail has been held not to be error. Walker v. State, 588 S.W.2d 920 (Tex.Crim.App.1980). Evidence of escape from custody or flight to avoid arrest is generally held admissible on the issue of guilt. Hunter v. State, 530 S.W.2d 573 (Tex.Crim.App.1975). Evidence of appellant smuggling implements of escape into jail were admissible on the issue of guilt.

Later, the state was permitted to argue, “This man [appellant] was trying to get out of the Brazos County Jail, ladies and gentlemen based on the evidence. And you know why he was trying to get out, ladies and gentlemen? Because he did not want to come in here and face you twelve .... ” At this point, appellant objected to this “as improper argument.” The court overruled the objection. We find the objection was insufficient to apprise the trial court of the specific nature of the alleged error and, thus, any error is waived. See Carter v. State, 614 S.W.2d 821 (Tex.Crim.App.1981). Had the objection been sufficient, the state’s argument constituted a summation of the evidence properly before the jury. Todd v. State, 598 S.W.2d 286 (Tex.Crim.App.1980). Appellant’s fourth and fifth grounds of error are overruled.

Appellant’s sixth ground of error contends the trial court erred in admitting testimony from an alleged expert witness. John McCutcheon, a chemist with the Texas Department of Public Safety, conducted a blood-alcohol test on a sample of the deceased’s blood. The test results showed a blood-alcohol content of 0.36 per cent. Over appellant’s objection, McCut-cheon was permitted to testify that such a level of alcohol in the blood would have dramatically hampered the deceased’s ability to defend himself. Earlier, McCutcheon testified he was qualified to testify as to the effect of alcohol on the body. He also testified without objection, that a 0.36 per cent level of alcohol in the blood would cause “severe problems with motor coordination, and if you get much higher many people would be comatose.” An expert’s testimony derives its value not from observation but from special knowledge and experience enabling him to draw inferences more reliably than the jury can unaided. Holloway v. State, 613 S.W.2d 497 (Tex.Crim.App.1981). McCutcheon testified he had special knowledge of being able to translate what effect the blood-alcohol content would have on the body. See Franklin v. State, 494 S.W.2d 825 (Tex.Crim.App.1973). His competence to testify as to the effect of alcohol on the body was not challenged by appellant. The court did not err in overruling appellant’s objection. Appellant’s sixth ground of error is overruled.

In his seventh ground of error, appellant contends the trial court erred in refusing to allow him to show the bias of one of the state’s witnesses, the deceased’s sister. When appellant attempted to cross-examine the witness about her alleged bias in favor of the state, the court sustained the state’s objection that the question regarding writing letters to the local newspaper had no relevance to the case. Appellant’s attorney then stated he was only attempting to show bias in the state’s favor. Nothing further was offered as to how the witness was biased against appellant. No bill of exceptions was made to preserve this point for appellant review. Appellant’s seventh ground of error is overruled.

Appellant’s eighth ground of error contends the indictment was fundamentally defective for failing to allege a culpable mental state. The recognized mental states set forth in TEX.PENAL CODE ANN. § 6.02(d) (Vernon 1974) are intentional, knowing, reckless, and criminal negligence. Appellant alleges the indictment stating that appellant “did unlawfully intentionally, intending to cause serious bodily injury to” the complainant alleges a culpable mental state not recognized under § 6.02(d). (Emphasis added). The exact words of the statute need not be alleged in an indictment when there is no material difference between the allegations. Ex Parte Burkett, 577 S.W.2d 265 (Tex.Crim.App.1979). It is unnecessary for the state to allege in the indictment that the act was “unlawfully” done. Veevers v. State, 172 Tex.Cr.R. 162, 354 S.W.2d 161 (1962). We find the indictment alleged appellant intentionally intended to cause serious bodily injury to the deceased. While it was not necessary to allege that appellant “intentionally” intended to cause serious bodily injury, See Lugo-Lugo v. State, 650 S.W.2d 72 (Tex.Crim.App.1983), such an allegation does not invalidate the indictment. Appellant’s eighth ground of error is overruled.

In his ninth ground of error, appellant contends the trial court erred in admitting his confession into evidence because he was not properly warned of his rights under TEX.CODE CRIM.PROC.ANN. art. 38.22 § 2 (Vernon 1979) or Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant contends he was not warned he could terminate the interview at any time, he had a right to appointed counsel, or any statement he made could be used as evidence against him. Appellant filed a motion to suppress his confession, a pretrial hearing on the motion was held, and the court overruled such motion. The confession was admitted into evidence at trial. The record shows that all of appellant’s contentions were fact issues resolved against him. In its findings of fact on the motion, the trial court “initially resolved, determined and decided the conflicting and disputed issues of fact, from all the evidence [presented at the pre-trial hearing on motion to suppress appellant’s confession], beyond a reasonable doubt and without regard to the truth or falsity of the confession, that the confession of the [appellant] was freely and voluntarily made and was admissible.” The trial court is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony in a hearing on pre-trial motions. See Vigneault v. State, 600 S.W.2d 318, 329 (Tex.Crim.App.1980). Appellant cannot be heard to complain where the trial court resolves issues of fact against him when there is evidence to support the court’s decision. There is evidence the warnings required by art. 38.22 § 2 which appellant contends were omitted were in fact given. Appellant’s ninth ground of error is overruled.

In a supplemental brief, appellant, relying upon Cobarrubio v. State, 675 S.W.2d 749 (Tex.Crim.App.1983) (not yet reported), contends the charge to the jury on the offense of murder is fundamentally defective. The court charged the jury on the offenses of murder, voluntary manslaughter, and aggravated assault. In Cobarrubio, and Jenkins v. State, Nos. 64,000-64,004 (Tex.Crim.App. February 16, 1983) (not yet reported), the Court of Criminal Appeals found the application paragraphs for murder and voluntary manslaughter were defective and stated that the burden of proving the lack of sudden passion must be placed upon the state in the paragraph of the charge applying the law of murder to the facts of the case. Cobarrubio, at 751. Unless such a charge does so, the court said the charge is fundamentally defective and may be challenged for the first time on appeal although there is no objection to the charge at trial. Jenkins.

While both of these cases are presently pending befpre the Court of Criminal Appeals on motion for rehearing and it is unknown whether the principles announced therein will be upheld, they are not dispositive of the issue before us. A defendant is not entitled to a charge on voluntary manslaughter unless there is evidence the offense occurred under the influence of sudden passion arising from an adequate cause. Luck v. State, 588 S.W.2d 371 (Tex.Crim.App.1979). “Sudden passion” means passion directly caused by or rising out of provocation by the individual killed arising at the time of the offense and is not solely the result of a former provocation. TEX.PENAL CODE ANN. § 19.04(b) (Vernon 1974). An “adequate cause” is a cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. TEX.PENAL CODE ANN. § 19.04(c) (Vernon 1974). In determining whether the evidence supported a charge on voluntary manslaughter, we will view the evidence in the light most favorable to appellant. Most of this evidence is from appellant’s own testimony and shows appellant and the deceased exchanged words three or four times prior to their fight because of a girl both were interested in at the Blue Dolphin Club. The deceased was extremely drunk. The appellant testified he drank two quarts of Wild Turkey whiskey, a half of a pint of Jack Daniels whiskey, and approximately six pitchers of beer on the night of the offense. In addition, he testified he took approximately five Quaaludes that day. After the final exchanging of words, the deceased told appellant he “was tired of [appellant] butting in in his way [sic].” At this point, appellant said the deceased jabbed him in the ribs and told appellant he wasn’t so tough and said, “Let’s go outside.” The appellant testified he was not sure whether the deceased ever threatened to kill him but thought he heard the word “kill.” Appellant was positive he thought the deceased was going to try to hurt him. At that point, at least, appellant, Eric Ryan, and the deceased went outside. As they were going outside, appellant thought he would have to get the deceased before he got him. When they walked out the door, the complainant grabbed appellant’s T-shirt and both fell off balance. As he fell and right after he hit the ground, appellant testified he was stabbed in the leg by someone. However, he never saw a knife. He testified that when he got stabbed it scared him and that he figured he would be stabbed again. Appellant pulled out his knife and. began stabbing and cutting the deceased. On cross-examination, appellant testified he and deceased agreed to go outside to settle their differences. From our review of the record, we find no sudden passion arising from an adequate cause which would have entitled appellant to a jury charge on voluntary manslaughter. He testified he wanted to get the deceased before the deceased got him. This showed that he was consciously aware of his actions and planned them out. Appellant testified he planned to knock the deceased off balance with the door so that he could hit him, but when he swung around, the deceased grabbed his T-shirt and prevented him from doing so. Although appellant testified he was scared when he was allegedly stabbed in the leg, fear in and of itself is not sufficient to require a charge on voluntary manslaughter. Daniels v. State, 645 S.W.2d 459 (Tex.Crim.App.1983). Only when fear arises to the level of terror does such a charge need to be given. Id. at 460. While we fully recognize that voluntary manslaughter, other lesser included offenses or murder, and self-defense are not inconsistent defenses to the charge of murder, still there must be evidence to raise these defensive issues to justify their submission to the jury. Appellant never testified to facts which raised the issue of voluntary manslaughter. His position throughout the trial was that he did not kill the deceased and his conduct in twice stabbing the deceased was justified on the basis of self-defense. We find the evidence did not raise the issue of voluntary manslaughter and any error in the giving of such an instruction was to appellant’s benefit and, therefore, harmless. While the court charged the jury on law of self-defense and mutual combat, we note a forceful argument could be made that neither of these issues was raised, but we need not so decide. Appellant’s tenth ground of error is overruled.

The trial court’s judgment is affirmed.


author: CANNON, Justice.

text:
    Jesse TANNER, Appellant, v. STATE of Texas, Appellee.
    No. B14-81-782-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 29, 1983.
    Rehearing Denied Feb. 9, 1984.
    Petition for Discretionary Review Refused Nov. 9, 1984.

      Jan Fox, Houston, for appellant.
    Eleanor Montague, Houston, for appel-lee.
    Before PAUL PRESSLER, ROBERTSON and CANNON, JJ.
   OPINION

CANNON, Justice.

This is an appeal from a misdemeanor conviction of perjury. Tex.Penal Code Ann. § 37.02 (Vernon 1974). The jury assessed punishment at six months confinement to be probated plus a $2,000.00 fine. The court ordered Jesse Tanner, appellant herein, to pay restitution in the amount of $1,100.00 to the complainant, Majed Nayef Al-Alkayeh. Appellant raises five grounds of error. We affirm.

On November 1, 1980 the complainant was driving his 1972 Volkswagon on the East Tex Freeway. Around 9:00 p.m. he ran out of gas near Laura Koppe Road. When he returned the next morning around 7:00 a.m. his car was gone. On November 5, the complainant reported to the Houston Police Department that his car had been stolen. Mr. Al-Alkayleh subsequently learned that on November 6 his car had been towed at the request of Houston Police to T & T Motors, appellant’s business. Pursuant to the Storage Lien Statute T & T Motors sent a notification letter on November 14 to Khaled Mohid Agayleh, the complainant’s cousin and registered owner of the 1972 Volkswagon. See Tex.Rev.Civ. Stat.Ann. art. 5504a (Vernon Supp.1982-83). The letter was sent certified mail, but was returned “unclaimed.” The complainant purchased the car in 1979 for $1,100.00 from his cousin, but never transferred registration. He, therefore, had no actual notice of the lien that T & T Motors held on his car for storage charges. A public sale was held on December 16 at T & T Motors and appellant purchased the ear from his business for $100.00.

In his first and second grounds of error, appellant challenges the sufficiency of the evidence to support a perjury conviction under Tex.Penal Code Ann. § 37.02 (Vernon 1974). The statute in question reads:

§ 37.02 Peijury
(a) A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning:
(1) he makes a false statement under oath or swears to the truth of a false statement previously made; and
(2) the statement is required or authorized by law to be made under oath.
(b) An offense under this section is a Class A misdemeanor.

Appellant contends the evidence is insufficient to establish that he had an “intent to deceive” and “knowledge of the state-merit’s meaning” when he signed the affidavit. We disagree.

The record reveals that Tanner filed a “questionaire affidavit” with the State Department of Highways and Public Transportation for foreclosure of the storage lien on complainant’s car. Complainant’s car was left for storage at T & T Motors on November 6, but the affidavit indicated said date to be October 8. J.J. Ellis, a notary public, testified that the affidavit was signed in blank by Jesse Tanner and was completed later by a secretary in Mr. Ellis’ office. Appellant argues that the testimony of Mr. Ellis demonstrates his lack of “knowledge of the statement’s meaning.” However, it need not be proven that an accused knew the statement to be false when he swore to it. Chavarria v. State, 63 S.W. 312 (Tex.1901). Furthermore, a person may commit perjury if he swears to a matter, under oath, about which he has no conscious knowledge. Butler v. State, 429 S.W.2d 497, 502 (Tex.Crim.App.1968). Notwithstanding the law just cited, it has long been within the province of the jury to determine for themselves whether they believe a particular witness in a perjury trial. Chavarria, 635 S.W. at 314.

Concerning the proof on the element of “intent to deceive,” the record discloses that T & T Motors was evasive when complainant inquired about his car. Complainant phoned T & T Motors three times and visited the business, in person, once. During his first phone call to T & T Motors, complainant was put on hold for fifteen minutes. During the second and third calls someone at T & T Motors hung up on complainant. When he visited the lot in person on February 4, the complainant was told that his car was not on the lot. When Detective R.E. Grebe of the Houston Police Department went to T & T Motors, Tanner said he didn’t have the car because he sold it. After searching the premises, the detective discovered, to the contrary, that complainant’s car was on the lot.

Viewing all of the evidence in the light most favorable to the verdict, we find probative evidence to establish the elements of perjury. Grounds of error one and two are overruled.

In his third ground of error, appellant contends that in its charge to the jury, the trial court failed to apply the law properly to the facts of the case. The Code of Criminal Procedure provides that, “[a]ll objections to the charge and to the refusal of special charges shall be made at the time of trial.” Tex.Crim.Proc.Code Ann. § 36.19 (Vernon 1981). Because appellant made no objection to the court’s charge, our review is limited to a fundamental error analysis. Fundamental error occurs when a defendant’s rights are injured to the extent that he is denied a fair and impartial trial. Kemner v. State, 589 S.W.2d 403 (Tex.Crim.App.1979). Here, the court’s charge was not a mere recitation of abstract legal principles; it applied the law to the facts of the case. The particular circumstances under which appellant could have committed perjury were enumerated in the charge. The jurors were not required “to put together pieces of a jigsaw puzzle to determine which elements must be proved in order to find that the defendant committed the offense....” Doyle v. State, 631 S.W.2d 732, 737 (Tex.Crim.App.1982). The court’s charge was proper and adequately protected appellant’s rights. Appellant’s third ground of error is overruled.

In his fourth ground of error, appellant contends that the trial court committed fundamental error by permitting the prosecutor to make certain comments during voir dire and final argument. The prosecutor’s remarks were not so obviously prejudicial that their harmful effect could not have been cured by an instruction. Appellant waived any error by failing to object or request an instruction. Hasek v. State, 384 S.W.2d 722 (Tex.Crim.App.1964); Phillips v. State, 511 S.W.2d 22 (Tex.Crim.App.1974). The fourth ground of error is overruled.

In his fifth ground of error, appellant claims that the trial court abused its discretion in ordering restitution. Absent an abuse of discretion the award of restitution will not be reversed. Cartwright v. State, 605 S.W.2d 287, 289 (Tex.Crim.App.1980). Furthermore, there must be an evi-dentiary basis to support the award of restitution. Thompson v. State, 557 S.W.2d 521 (Tex.Crim.App.1977).

We find sufficient evidence to support the trial court’s order of restitution. The record reveals that the complainant purchased the 1972 Volkswagon in 1979 for $1,100.00, that he was denied the use of his car beginning in November of 1980, that Tanner purchased the car in a public sale from his own business, and that no compensation had yet been rendered to complainant by Tanner. The fifth ground of error is overruled.

The judgment of the trial court is affirmed.


author: J. CURTISS BROWN, Chief Justice. ELLIS, Justice,

text:
    William GORDON, Appellant, v. STATE of Texas, Appellee.
    No. A14-82-672CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 1, 1984.
    Rehearing Denied March 22, 1984.
    Petition Granted Oct. 3, 1984.

      Allen Isbell, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a conviction of violation of civil rights, from the 182nd Judicial District Court of Harris County. Appellant was found guilty of a third degree felony, and the jury assessed punishment at five (5) years confinement in the Texas Department of Corrections, probated, and a two thousand dollar ($2,000) fine. Additionally, the trial court ordered restitution in the amount of four thousand dollars ($4,000) for the complainant’s funeral expense.

Appellant asserts four grounds of error. Appellant’s first two grounds of error argue that the trial court erred in denying appellant’s requested charge on assault in that appellant’s testimony raised this issue.

On March 19, 1982, appellant, then a Harris County Deputy Sheriff, received a call at 2:27 p.m. regarding a burglary in progress at 607 Bright Penney in Harris County. When he arrived, appellant found that a neighborhood resident, Tony Aker-man, had captured 17 year old Steven Bar-nette. Akerman, suspecting Barnette of burglary, held him at gunpoint until appellant arrived. Appellant placed Barnette under arrest. Two burglars had been seen fleeing earlier that day, and when placing the complainant under arrest, appellant asked for the identity of the other person. Akerman and Darrell Leatherwood testified that appellant grabbed complainant by the hair. Appellant jerked Barnette’s head back when asking the identity of his companion. Later, Barnette was questioned again by appellant and deputy William Whigham. Deputy Whigham was indicted for his participation in the beating and subsequent death of Barnette. Whigham testified that when he and appellant questioned the now handcuffed Barnette, appellant placed his left foot on one of the prisoner’s bare feet. Appellant admitted this. The injuries which caused Steven Barnette’s death occurred later that evening. The handcuffed Barnette was taken by appellant, Whigham and Constable Billy McGreight into a wooded area close to the burglarized neighborhood. First, appellant faked a backhand to Barnette’s groin area. Appellant did not make contact but made the deceased flinch and move to a bent over position. McGreight then grabbed Bar-nette. He hit the deceased about five times in the chest area and kneed him in the groin. Whigham slapped Barnette once on the shoulder. Whigham testified that appellant did not hit Barnette in the wooded area. Barnette died later that night from the injuries inflicted by McGreight. The jury acquitted appellant of causing Barnette’s death as a party with McGreight. Appellant was convicted of violating the prisoner’s civil rights by pulling Barnette’s hair.

There is sufficient evidence in the record to show a violation of the civil rights of a prisoner. Tex.Penal Code Ann. § 39.-021(a)(1) (Vernon 1982) states:

A peace officer or a jailer or guard employed at a municipal or county jail or by the Texas Department of Corrections commits an offense if he:
(1) intentionally subjects a person in his custody to bodily injury knowing his conduct is unlawful.

The evidence indicates that after appellant arrived on the scene he began frisking Bar-nette and asked “who was that other guy with you?” When Barnette failed to answer, the appellant grabbed him by the hair on his forehead and jerked his head back. The evidence shows that the appellant pulled Barnette’s hair hard enough to cause him physical pain.

Appellant contends that the assault is a lesser included offense of the violation of the civil rights of a prisoner and the trial court should have instructed the jury on assault.

The determination of whether an offense is a lesser included offense under Article 37.09(1), V.A.C.C.P., if:

it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.

The determination of whether an offense is a lesser included offense under Article 37.09, V.A.C.C.P., must be made upon a case by case basis and not on just the language of the statute. The decision shall be based on whether the lesser offense could be proved by the same facts necessary to establish the offense charged. Day v. State, 532 S.W.2d 302 (Tex.Crim.App.1975); Hazel v. State, 534 S.W.2d 698 (Tex.Crim.App.1976).

The offense of violation of the civil rights of a prisoner stands alone. The very foundation of this offense is the status and relationship of the parties. The offender can only be a peace officer or a jailor or guard employed in a municipal or county jail or by the Texas Department of Corrections. The victim can only be “a person in his custody.” It is conceded that these essential elements are present in this case. Tex.Penal Code Article 39.021(c) (Vernon 1982) provides “This section shall not preclude prosecution for other offenses set out in this code.” This language is indicative of legislative intent to treat this status and relationship/offense as a singular crime, but not precluding prosecution for murder, rape, assault, theft or other offense set out in the code.

Even if a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981).

A charge on a lesser included offense is not required unless the evidence raises that issue. McBrayer v. State, 504 S.W.2d 445 (Tex.Crim.App.1974); Torres v. State, 493 S.W.2d 874 (Tex.Crim.App.1973).

In the instant case, there is sufficient evidence to show a violation of the civil rights of a prisoner. Tex.Penal Code Ann. § 39.021(a)(1) (Vernon 1982). Even if assault were a lesser included offense of Tex.Penal Code Ann. § 39.021(a)(1), there was no evidence presented at trial which would indicate that appellant, if guilty, was only guilty of the lesser offense. We find no error in the court refusing to submit appellant’s requested instructions on the offense of assault.

The appellant’s third ground of error complains that the court abused its discretion when it ordered appellant to pay Steven Barnette’s funeral expenses in that appellant was found not guilty of doing an act that caused Barnette’s death. Appellant argues that the order violates due process. The indictment in this case makes it a felony offense for a peace officer to intentionally subject a person in his custody to bodily injury if the peace officer knows his conduct is unlawful. The jury convicted appellant of paragraph two of the two paragraph indictment of violating the civil rights of a prisoner by pulling the prisoner’s hair. Throughout the trial the relationship between this appellant and the other police officers involved in the beating and subsequent death of Steven Barnette was examined. That appellant was a part of the crime is apparent from the record. It is also apparent that the trial court’s power to order restitution or reparation is authorized under Article 42.12 Section 6(a)(h) V.A.C.C.P. Since it was clearly with the power of the trial court, appellant’s third point of error is overruled.

Appellant’s fourth ground of error claims that the trial court abused its discretion when it ordered appellant to pay Steven Barnette’s funeral expenses in the amount of $4,000. Appellant argues that there is no evidence supporting the amount of restitution ordered. The record is silent on the amount of funeral expenses incurred. There is no evidence that $4,000 is just restitution for funeral expenses incurred by the Barnette family. Since the error relates to the probation condition only, and since the trial court set the condition, the cause will be remanded for a hearing to determine the amount of restitution to be ordered. Cartwright v. State, 605 S.W.2d 287 (Tex.Crim.App.1980).

Appellant’s fifth ground of error alleges that the indictment is fundamentally defective in that it does not allege an element of Tex.Penal Code Ann. § 39.021 (Vernon 1979), such that appellant acted as a “peace officer ... employed at a municipal or county jail or by the Texas Department of Corrections.” Appellant contends that the indictment failed to allege that appellant was either a peace officer or jail- or or guard employed by either a municipal or county jail or by the Texas Department of Corrections. This element of Tex.Penal Code Ann. § 39.021 (Vernon 1979) should be read in the disjunctive whereby “peace officer” is read separately from the jailors or guards employed by a municipal or county jail or by the Texas Department of Corrections. As evidence of this fact, the legislature in 1983, amended Section 39.021 to clarify this type of misunderstanding in the reading of the statute. Appellants fifth ground of error is overruled. Because of our disposition of the fifth ground of error, we need not address appellant’s sixth ground of error. Affirmed in part and reversed and remanded in part.

ELLIS, Justice,

dissenting.

I respectfully disagree with my fellow judges and agree with appellant’s fifth ground of error in that the indictment is fundamentally defective and I would reverse the conviction and order the indictment dismissed.

The appellant was indicted under Section 39.021(a)(1) of the Texas Penal Code Ann. (Vernon Supp.1982-83) titled Violation of the Civil Rights of a Prisoner. The indictment contained two paragraphs.

The relevant parts of the indictment state:

PARAGRAPH ONE
Alleged that appellant did then and there ... unlawfully as a peace officer, namely a Harris County, Texas, Deputy Sheriff, intentionally subject Steven Barnette, hereafter styled the complainant, a person in the Defendant’s custody to bodily injury by striking the complainant with his hand and leg knowing his conduct was unlawful and the death of the complainant occurred as a result of said bodily injury.
PARAGRAPH TWO
Alleged that the appellant did then and there ... unlawfully as a peace officer, namely, a Harris County, Texas, Deputy Sheriff, having in his custody Steven Barnette, hereafter styled the complainant, intentionally subject the complainant to bodily injury by striking the complainant with his hand, and by pulling the complainant’s hair with his hand, and by standing on the complainant with his foot knowing his conduct was unlawful.

The jury acquitted the appellant of the charge in paragraph one and found him guilty of the charge in paragraph two of the indictment.

Section B9.021 of the Texas Penal Code provides:

(a) A peace officer or a jailer or guard employed at a municipal or county jail or by the Texas Department of Corrections commits an offense if he:
(1) intentionally subjects a person in his custody to bodily injury knowing his conduct is unlawful;

Tex.Penal Code Ann. § 39.021(a) (Vernon Supp.1982-83). My reading and interpretation of Section 39.021(a)(1) is that a peace officer or a jailer or guard must be employed at a municipal or county jail or by the Texas Department of Corrections in order to have committed an offense under this section of the penal law.

The indictment in our case did not charge or allege that the appellant was employed at a municipal or county jail or by the Texas Department of Corrections; therefore, it is fundamentally defective. It is my interpretation of Section 39.021(a)(1) that it does not apply to situations involving a street arrest by a deputy sheriff but applies specifically to acts of violence committed upon the person of a prisoner by peace officers or jailers or guards employed at municipal or county jails or by the Texas Department of Corrections.

In 1983 the Texas legislature amended Section 39.021(a) to include as prohibited acts those civil violations committed by all peace officers as well as those previously proscribed acts committed by guards and jailers.

The amended act reads as follows:

(a) A jailer or guard employed at a municipal or county jail or by the Texas Department of Corrections or a peace officer commits an offense if he:
(1) intentionally subjects a person in custody to bodily injury knowing his conduct is unlawful; (emphasis ours).

The appellant was tried under Section 39.021(a)(1) as it was written in 1979 and it is clear to me that he did not violate this particular statute.

Since the indictment fails to allege that the appellant was a peace officer or jailer or guard employed by either a municipal or county jail or by the Texas Department of Corrections, the indictment fails to state an offense against Section 39.021 of the Texas Penal Code.

I would reverse the conviction and order the indictment dismissed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Kenneth Alan YORKO, Appellant, v. The STATE of Texas, Appellee.
    No. A14-83-442CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 1, 1984.
    Discretionary Review Granted Oct. 17, 1984.

      Mike Maness, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   J. CURTISS BROWN, Chief Justice.

Kenneth Alan Yorko (Yorko or appellant) was convicted of possession with intent to sell, an obscene device, a dildo, under TEX. PENAL CODE ANN. § 43.23(c)(1). Appellant did not submit a statement of facts on appeal, and proceeds solely upon the transcript. In two grounds of error, appellant claims TEX.PENAL CODE ANN. §§ 43.-23(a) and 43.23(c)(1) are unconstitutional. He asserts they violate a right to privacy guaranteed under the Fourteenth Amendment to the Constitution of the United States, and are an excessive use of police power under the Texas Constitution.

The right of citizens to possess obscene materials in their homes does not create a right to sell that material publicly. Appellant cites many instances where a federally protected right to privacy may be found. However, there are no cases where a right of privacy has been extended to public sale of obscene material. The United States Supreme Court has stated that there is no privacy right implicit in obscene displays in public places. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66, 93 S.Ct. 2628, 2640, 37 L.Ed.2d 446 (1973). The right to privately possess obscene material is simply not at issue when such material is offered for sale to the public. Goodwin v. State, 514 S.W.2d 942, 944 (Tex.Crim.App.1974).

State regulation of obscenity is not a constitutionally impermissible attempt to control the thoughts of its citizens. Paris Adult Theatre, 413 U.S. at 66, 93 S.Ct. at 2640.

“The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole ...”

Id. at 69, 93 S.Ct. at 2641. This decision also reaffirmed the holding in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), that obscene material has no protection under the First Amendment.

In asserting the privacy rights of his customers, Yorko asks us to rule that the state has exceeded its power to define obscenity. He asserts that dildoes are distinctly different from other commercial obscenity, and that the state has no compelling interest in banning the sale of dildoes.

Whether or not sexual devices may properly be defined as obscene was implicitly ruled upon by the United States Supreme Court when Sewell v. Georgia, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978) was dismissed for want of a substantial federal question. The device in that case was an artificial vagina. In trying to distinguish a sexual device from other commercial obscenity, appellant is not only attacking the result in Sewell, but is also indirectly attacking the power of the state to define obscenity. Conceptually, it is possible to imagine situations where the state’s power to define obscenity would be abusive, but this is not one of those cases.

The role of the legislature in defining obscenity was established in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The Supreme Court ruled the states were to develop their own standards as to precisely what “prurient interest” or “patently offensive” means when judging allegedly obscene material. Id. at 30, 93 S.Ct. at 2618. Appellant urges us to rule that the Texas Legislature has exceeded its power under Miller by defining dildoes as obscene.

Beyond its holding in Sewell, the Supreme Court gave some indication in Miller that a state legislature could determine that sexual devices are obscene. The Court gave several examples of what activities might properly be condemned, and included the example of “lewd exhibition of the genitals.” We hold that by making commercial distribution of dildoes a criminal offense, the legislature did not exceed its mandate under Miller. A dildo is not far removed from “lewd exhibition of the genitals”. It is clear that the legislature was well within its role as set down in Miller.

Having determined that a dildo may properly be defined as obscene, there is no need to prove whether the state has a compelling interest in banning their sale. “States have a long recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation,...” Paris Adult Theatre, 413 U.S. at 57, 93 S.Ct. at 2635. Appellant argues that prosecution for sale of a dildo is nonsensical; that the state cannot articulate any reason, compelling or otherwise, why sale of dildoes should be banned. But articulation of a compelling interest is not necessary when obscenity is at issue. The fact of obscenity is reason in itself for its prohibition from public commerce. The only practical effect of these laws may well be to raise the price of dildoes to the frustrated few finding need of them but, it is not our function to “second guess” the legislature in this regard. Appellant’s ground of error is overruled.

Appellant asserts that TEX. CONST, art. I, § 19 guarantees broader due process protection for substantive economic rights than does the United States Constitution. In general we agree with this proposition but not as applied to this case. He cites State v. Richards, 157 Tex. 166, 301 S.W.2d 597 (1957) and contends that the state exceeded its legitimate police power by seizing the dildo from Yorko. Since there is no record in this case, we cannot assume there was a taking or a seizure. A seizure would not have been necessary to prosecute Yorko under the obscenity statute. We overrule the point.

We hold that TEX. PENAL CODE ANN. § 43.23(a) and 43.23(c)(1) are not unconstitutional under either the United States or Texas Constitutions. Appellant’s two grounds of error are overruled.

The judgment of the trial court is affirmed.


author: ELLIS, Justice.

text:
    Anthony Andrew AUGUST, Appellant, v. STATE of Texas, Appellee.
    No. B14-83-167CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 8, 1984.

      T.W. 'Proctor, Houston, for appellant.
    Jim Mapel, Angleton, for appellee.
    Before PAUL PRESSLER, ROBERT-' SON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Appellant, Anthony Andrew August, appeals from a judgment of conviction of the third degree felony offense of unlawful delivery of marijuana. Appellant entered a plea of not guilty and the case proceeded to trial upon the parties’ stipulation of evidence. The court found appellant guilty and sentenced him to not less than two nor more than eight years in the Texas Department of Corrections.

Appellant brings four points of error on appeal. Point of error one claims that the trial court erred in refusing to grant appellant’s several motions to set aside the complaint and/or indictment pursuant to the Speedy Trial Act inasmuch as more than 120 days had expired before the case was ever presented to the Grand Jury and after Motion to Set Aside the complainant had already been filed, and because prior to that time or thereafter the State never filed a written motion to exclude time under the Speedy Trial Act. Appellant’s point of error two asserts that the trial court erred in refusing to grant Appellant’s Motion to Quash the indictment because the term of court on the indictment, described as the October-March Term, A.D.1981, is an impossible term of Court. Point of error three alleges that the trial court erred in refusing to grant Appellant’s Motion to Quash the indictment because it failed to show the place of the offense. In point of error four, appellant contends that the trial court erred in overruling his Motion to Quash the indictment because it failed to set forth the offense in plain and intelligible words.

We agree with point of error one; therefore, we will not discuss appellant’s other points of error. We reverse the judgment of the trial court and order the indictment dismissed and appellant discharged under the terms of the Speedy Trial Act.

Appellant was arrested on October 4, 1981, in Brazoria County, and charged with the offense of unlawful delivery of marijuana. The evidence seized was turned over to the county's chemist on October 6, 1981. On January 6, 1982, the State filed a motion in the Justice Court for continuance and to exclude time, but never asked for a hearing on that motion or for the court to rule on the motion. On February 10, 1982, appellant filed a motion in the Justice Court to set aside the complaint because 120 days had elapsed since appellant’s arrest and no indictment had been returned. Two days later, on February 12, 1982, Justice of the Peace Whitt issued a letter setting the matter for a hearing on March 2, 1982. On February 24, 1982, the State’s attorney received the chemist report. March 2, 1982, was a holiday, so on March 1, 1982, the judge cancelled the hearing, intending to reset it. Meanwhile, on March 3, 1982, the State presented the matter to the Grand Jury, which returned an indictment against appellant.

An arraignment was set for March 10, 1982. At that time appellant asked for a ruling on his Speedy Trial Motion, and the State announced ready for trial on the seven day old indictment, one hundred fifty-seven (157) days from appellant’s arrest. Appellant pled not guilty and the case was set for pretrial and trial simultaneously for March 15, 1982.

On March 15, 1982, appellant asked for a ruling on his Speedy Trial Motion (a revised version of his original Motion to Set Aside the Complaint now called a Motion to Set Aside the Indictment, filed March 10,1982). The case could not be reached for trial due to older cases on the docket, and the matter was reset to March 25, 1982.

On March 25, 1982, appellant filed an additional instrument raising the Speedy Trial issue entitled a Motion to Quash the Indictment. The court overruled appellant’s Speedy Trial Motion and appellant’s other contentions concerning the validity of the indictment.

The case was set for trial on August 16, 1982, and for a Writ of Habeas Corpus hearing. When the writ of Habeas Corpus was heard, the parties agreed that the chemist report was returned to the State approximately 136 days after appellant was arrested, and before the case was presented to the Grand Jury or an indictment returned against appellant. Appellant again urged his Speedy Trial Motion. The State, without notice to appellant and without written motion, asked the court, based on the motion filed only in the Justice Court, to exclude time under the provisions of the Speedy Trial Act. The court overruled appellant’s application for a Writ of Habeas Corpus.

Appellant appealed the denial of his Writ application; The Court of Appeals, dismissing the action, held that the issue of speedy trial is not subject to habeas corpus determination and that the court never acquired jurisdiction of the cause.

The case was set for trial on February 14, 1983. Appellant, however, did not receive notice, so the case was reset to March 14, 1983. On that date, the case proceeded to trial the parties stipulating what the State’s witnesses would testify. Appellant pleaded not guilty and re-urged his Speedy Trial Motion. After the court’s pronouncement of guilty .and sentencing, appellant again urged his motion, which the court again overruled.

Appellant’s first point of error alleges that the trial court erred in not granting appellant’s motion to set aside the complaint and/or indictment pursuant to the Speedy Trial Act because more than 120 days had expired before the case was ever presented to the Grand Jury and after a Motion to Set Aside the Complaint had already been filed, and because prior to that time or thereafter the State never filed a written motion to exclude time under the Speedy Trial Act. The Speedy Trial Act provides in pertinent part:

Section 1. A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within:
(1) 120 days of the commencement of a criminal action if the defendant is accused of a felony[.]

Tex.Code Crim.Proc.Ann. art. 32A.02 § 1(1). Section 4 lists periods to be excluded in computing the time by which the State must be ready for trial. Two possible subsections might exclude time in the present case:

(6) a reasonable period of delay resulting from a continuance granted at the request of the state if the continuance is granted:
(a) because of the unavailability of evidence that is material to the state’s case, if the state has exercised due diligence to obtain the evidence and there are reasonable grounds to believe the evidence will be available within a reasonable time[.]
(10) any other reasonable period of delay that is justified by exceptional circumstances.

Tex.Code Crim.Proc.Ann. art. 32A.02 § 4(6)(A)(10).

The 120 day time limit under the Speedy Trial Act began to run on October 4,1981, when appellant was arrested. Tex. Code Crim.Proc.Ann. art. 32A.02 § 2(a). The State announced ready on March 15, 1982, 162 days from appellant’s arrest. The State bears the burden of putting on a prima facie case that it was ready and announced ready within the 120 day limit. Apple v. State, 647 S.W.2d 290 (Tex.Crim.App.1983). The State, therefore, had to show that at least 42 days were excluded under the Act to meet its burden.

Under Section 4(6), time is excluded due to a State’s motion for a continuance. Tex.Code Crim.Proc.Ann. art. 32A.02 § 4(6). In our case, the State filed its motion only in the justice court and never asked for a hearing on its motion. In fact, the State could not have filed its motion in the District Court within 120 days because that court did not have jurisdiction until the indictment was returned. Lloyd v. State, 665 S.W.2d 472 (Tex.Crim.App.1984). Section, 4(6) therefore, excludes nothing from the time period within which the state had to announce that it was ready for trial.

Under Section 4(10), however, the State need not file a motion for continuance. It is sufficient that the state show the exceptional circumstances to the trial court at the time the Speedy Trial Motion is heard. Canada v. State, 660 S.W.2d 528 (Tex.Crim.App., 1983).

Pursuant to that Section, the State showed that the laboratory which analyzed the marijuana was backlogged on the date it received appellant’s case with 208 cases from four counties, involving 916 specimens, and requiring more than ten thousand tests. Further, the State showed that the laboratory had only one employee, Michael Manes, who performed clerical duties and testified in court in addition to doing the laboratory tests. Manes testified that he took cases out of order only in an emergency, such as the need for a search warrant. He also testified that while other labs might be able to analyze drug specimens in less than 120 days, he knew of only three others: the Department of Public Safety lab, which also had a backlog of cases; the Galveston Forensic lab, which charged fees for analysis; and the Houston Police lab, which did not accept out-of-county analysis requests.

The State could not announce ready without an indictment. Pate v. State, 592 S.W.2d 620 (Tex.Crim.App.1980). The State’s attorney waited until he received the chemical analysis before he presented the case to the Grand Jury for indictment. However, he did not have to do so. The Grand Jury needs only probable cause to return an indictment. In our case, probable cause could have been determined from the police officer’s testimony without the chemical analysis. Lloyd v. State, 665 S.W.2d 472 (Tex.Crim.App.1984).

Further, the failure of the State to have the sample analyzed within the time by which the Act required it to be ready for trial is not justified by “exceptional circumstances.” We find Lloyd v. State, 665 S.W.2d 472 (Tex.Crim.App., 1984) controlling. In Lloyd the court said that “exceptional circumstances” cases have fallen mainly into a category of court delays (i.e. overcrowded dockets, absence of judge, material witness unavailable due to hospitalization) rather than State delays. Lloyd was arrested on November 9, 1978, for delivery of marijuana. He was not indicted until March 21, 1979, 131 days after arrest. The State, in trying to exclude time under the Speedy Trial Act, claimed that the delay was due to the time it took to have the drug sample analyzed. The State delayed in submitting the sample for analysis, and the assistant district attorney testified that he never presented a drug case to the grand jury without a chemist’s report.

The evidence in our case, as in Lloyd, was within the control of the State. The State could have told the chemist to take the sample out of order, or it could have sent the sample to a lab that charged fees for analysis. “The reasons given for this delay, convenience in economy, cannot be called an exceptional circumstance under § 4, (10).” Lloyd, 665 S.W.2d 472 at 475.

Because of the failure of the State to comply with the Speedy Trial Act, we reverse the judgment of the trial court and •remand with instructions to dismiss the indictment and discharge appellant under the terms of the Act.


author: MURPHY, Justice.

text:
    Emma Lee ISBELL, Appellant, v. STATE of Texas, Appellee.
    No. C14-82-658CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 15, 1984.
    Petition for Discretionary Review Refused Oct. 17, 1984.

      William Burge, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    JUNELL, MURPHY and SEARS, JJ.
   MURPHY, Justice.

This is an appeal from a conviction for murder in which the jury assessed punishment at ten (10) years in the Texas Department of Corrections.

In her first ground of error appellant contends that the trial court erred in refusing to charge the jury on the lesser included offense of criminally negligent homicide. Appellant objected to the court’s failure to include the lesser included offense and submitted a requested jury instruction on the issue. We agree.

The general rule concerning the required submission of jury charges is that when evidence from any source raises an issue of a lesser included offense, and there is testimony that, if guilty at all, the defendant is only guilty of the lesser included offense, then the charge on the lesser included offense must be submitted to the jury. Hunter v. State, 647 S.W.2d 657, 658 (Tex.Crim.App.1983); Simpkins v. State, 590 S.W.2d 129, 132 (Tex.Crim.App.1979). Moreover, a defendant’s own testimony is sufficient to raise the issue. Campbell v. State, 614 S.W.2d 443, 445 (Tex.Crim.App.1981).

The offense of criminally negligent homicide is committed when a person causes the death of an individual by criminal negligence i.e.: when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex.Penal Code Ann. § 19.07, § 6.-03(d) (Vernon 1974).

In describing the events of January 11, 1982, appellant testified that her husband announced that he was leaving her and wanted a divorce. Appellant related that she went into the bedroom crying and collapsed on the bed. Thereafter, the appellant saw the deceased’s revolver on the nightstand, picked it up, and went into the kitchen with the intention of killing herself. Once in the presence of the deceased, the appellant attempted to raise the loaded gun toward her head with her finger on the trigger and stated, “I’m going to kill myself. I can’t live without you.” The deceased tried to disarm the appellant and in the ensuing struggle two shots were fired. The second shot hit the deceased in the lower left back causing his death.

On cross-examination by the Prosecutor, the appellant testified as follows:

Q: And you didn’t pull the trigger?
No, I didn t. <d
Did you pull the trigger the second time? O*
No. Didn’t. <j
You don’t know how the trigger got pulled? O’
No, I don’t. <1
Don’t know how either one of them got pulled? ©
I didn’t pull it enough. <!
You didn’t pull the trigger? G?
No. <!
Q: Did you intentionally pick up the gun?
A: Yes, I did.
Q: You are not saying by some negligence you killed him are you?
A: I don’t know.
A: I didn’t intentionally do that.
Q: But not by some negligence? You are not saying by some negligence you killed him? You are saying you didn’t intentionally do it?
A: I’m saying I didn’t do it.
Q: You didn’t do it or didn’t intentionally do it?
A: I didn’t do it.
Q: You didn’t do it?
A: Yes.
Q: You mean — you are saying you didn’t shoot him? Or you didn’t intentionally shoot him?
A: I didn’t shoot him; and I didn’t intentionally shoot him.

Appellant testified that she had never had any instructions in the use of handguns and did not know how a revolver operated. Appellant stated:

Q: C.B. was in law enforcement for 22 years?
A: No. He was in law enforcement for 24 or 25 years.
Q: He never made any indication to you or tried to give you any instructions in the use of handguns?
A: No, he wouldn t.
Q: You knew how handguns worked, I take it?
A: No. I didn’t.
Q: you (sic) did not?
A: No.
Q: You didn’t know how you pulled the trigger?
A: Oh, yes.
Q: You knew how that worked?
A: I knew that, yes, sir.

After the deceased was shot, appellant telephoned the police and reported that she had shot him. The recorded telephone conversation, in part, was as follows:

DISPATCHER: And he’s beating you up?
MRS. ISBELL: No, no, I was going to kill myself and he was trying to keep me from it and the gun went off and oooooh ...
DISPATCHER: You were trying to kill yourself but what?
MRS. ISBELL: I ooooh.
DISPATCHER: He has the gun?
MRS. ISBELL: No, I had the gun and he was trying to get it away, I aaaaaah eeeeeeeaaaah suddenly oohhh and he’s on the floor, I don’t know ... Oh God, he may be dead ... aaah hurry please
DISPATCHER: Ok, who shot him?
MRS. ISBELL: Meee, I was he was trying to get the gun away from me while we were fighting over the gun and the gun went off ...

In determining whether the testimony of the accused raises the issue of a lesser included offense, the truth of the accused’s testimony is not at issue. Rodriquez v. State, 544 S.W.2d 382, 383 (Tex.Crim.App.1976). A defendant is entitled to a charge on every issue raised by the evidence regardless of whether the evidence is strong, feeble, impeached, or contradicted. Warren v. State, 565 S.W.2d 931, 933-934 (Tex.Crim.App.1979).

Appellant s testimony at trial and her statement made to the dispatcher of the Police Department indicated that while she intended to kill herself, she was not aware of the risk her conduct created. See Schoelman v. State, 644 S.W.2d 727, 734 (Tex.Crim.App.1983); Hunter v. State, 647 S.W.2d at 659; Campbell v. State, 614 S.W.2d at 446. Therefore, the trial court erred in failing to charge the jury on the issue.

Appellant’s first ground of error is sustained.

Appellant also challenges the sufficiency of the evidence by contending that she was entitled to an aquittal because the state introduced in evidence oral exculpatory statements she made to Mr. Kenneth Curr and failed to rebutt the exculpatory portion beyond a reasonable doubt. Even though the case must be reviewed for -a fundamentally defective jury charge, it is necessary to review appellant’s contention as this ground of error, if sustained, would bar a retrial. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). We reject appellant’s contention because the statement of the accused did not amount to an admission.

It is well settled that where the state introduces a statement of the accused admitting to acts that would ordinarily constitute an offense, the state is bound by any exculpatory assertions therein, unless it puts in other evidence to disprove the exculpatory matter. Simon v. State, 488 S.W.2d 439, 444 (Tex.Crim.App.1972); Palafox v. State, 608 S.W.2d 177, 181 (Tex.Crim.App.1979). Thus, where the accused makes no admission of guilt, and his statement is entirely exculpatory, the rule may not be invoked. Trevino v. State, 87 S.W. 1162, 1163 (Tex.Crim.App.1905); Dixon v. State, 128 Tex.Cr.R. 584, 83 S.W.2d 328, 330 (1935). The statement of the accused relied upon by the appellant to constitute an admission is as follows:

PROSECUTOR: Did the defendant indicate anything to you when she pointed to the gun?
MR. CURR: No, sir.
PROSECUTOR: Do you recall her saying anything?
MR. CURR: If I recall right, she said something like the gun went off. They were struggling over the gun and the gun went off.

This statement standing alone does not admit an act which would ordinarily constitute the gravamen of an offense. We therefore reject appellant’s contention and hold that the evidence was sufficient to sustain the verdict of the jury finding appellant guilty of murder.

Due to our holding on ground of error number one, we need not address appellant’s final ground of error, which contends that the trial court erred in overruling appellant’s motion to suppress evidence obtained as a result of an illegal search and seizure.

Finding that the trial court erred in failing to submit a charge on criminally negligent homicide, the judgment is ordered reversed and the cause remanded for a new trial.


author: DRAUGHN, Justice.

text:
    Ricky Alfonso CLEMONS, Appellant, v. The STATE of Texas, Appellee.
    No. A14-83-688CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 15, 1984.
    Discretionary Review Refused Oct. 24, 1984.

      Gerson Bloom, Galveston, for appellant.
    Miguel Martinez, Galveston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

Ricky Alfonso Clemons was convicted by a jury of aggravated robbery. His punishment was set at life imprisonment and a $10,000.00 fine. In four grounds of error appellant now contends that the trial court erroneously admitted several objects and statements into evidence, and that the state’s attorney made several impermissible jury arguments. We find no reversible error and accordingly affirm the judgment of the trial court.

Appellant gave his eleven-year-old brother a loaded gun and told him to rob a liquor store, while appellant waited for him across the street. During the course of the robbery, the store owner was shot. Appellant’s brother ran across the street and gave the gun back to appellant who thereafter disposed of it. Appellant was then indicted for the instant offense. During the trial, the court admitted the victim’s bloody t-shirt into evidence and permitted the victim to exhibit his scars to the jury. Appellant urges that such evidence was improper because the fact that a shooting had occurred was not at issue. We disagree. The admissibility of such visual descriptive evidence is no longer dependent on resolving a disputed fact issue. Bradford v. State, 608 S.W.2d 918 (Tex.Crim.App.1980); Green v. State, 638 S.W.2d 51, 53 (Tex.App.-Houston [1st Dist.] 1982, no pet.). In fact, if a verbal description of the offense is admissible, then the clothing and exhibition of the scars are likewise admissible. Bradford at 920; Green at 53. Such descriptions are admissible when they throw light on the transaction. Bradford at 920; Green at 53. The t-shirt and scars clearly give descriptive insight into the nature of the robbery and appellant’s first ground of error is thus overruled.

The trial court granted appellant’s pretrial motion in limine prohibiting the State from referring to appellant’s acts as a juvenile until the trial court specifically ruled on their admissibility. However, during the punishment phase of the trial, the State’s attorney questioned witnesses and argued to the jury in a manner which appellant contends improperly alluded to his juvenile record. Appellant does not now contest the court’s rulings on the individual questions and arguments. Instead, he argues that the questions violated the motion in limine, and that the references to appellant’s juvenile acts forced appellant to repeatedly object to those questions. He thus contends that the trial court should have granted his motion for mistrial on these grounds.

A motion in limine does not alone preserve error; appellant must object on the proper grounds when the evidence is actually offered during the trial. Romo v. State, 577 S.W.2d 251, 252 (Tex.Crim.App.1979). Mere objections that the questions asked are violative of the motion in limine is not sufficient to preserve error. The objection must be specifically levelled at the offending questions and the reasons given therefor. Armitage v. State, 637 S.W.2d 936, 938 (Tex.Crim.App.1982).

We are not convinced that the questions and arguments in fact referred or alluded to appellant’s juvenile record. The State’s attorney questioned a sheriff and a probation officer as to how long they had known appellant; however, this was in a line of questioning inquiring into their knowledge of appellant’s reputation. The length of their acquaintance with appellant was thus relevant to this point. The prosecutor asked a friend of appellant’s whether she was aware of appellant’s “past problems.” This reference to “problems”, however, does not necessarily indicate that they were criminal in nature. He also asked appellant how many times he had said “it won’t happen again,” whether he had any adult felony convictions, and how old he was when he committed this offense. Since appellant was eighteen years old when the trial took place, these questions could be construed to refer to a juvenile record; however, they could also be construed to characterize appellant’s general reputation as to truthfulness. While we do not approve of this type of potentially suggestive examination, we do not find that it presents a case where the questions were clearly calculated to inflame the jurors’ minds. See generally Brem v. State, 571 S.W.2d 314, 322 (Tex.Crim.App.1978).

The State’s attorney’s argument during the punishment phase is of a similar nature. He stated that he was “limited to what he could bring the jurors” and that he could only bring them appellant’s adult criminal record along with reputation witnesses. This statement, standing alone, did not indicate that appellant indeed had a juvenile record. Appellant argues, however, that this, together with the State’s attorney’s voir dire remark that juvenile records are not admissible in a trial, necessarily would lead to the clear implication that appellant had a juvenile record. Whether such argument, cumulatively or individually, necessitates a reversal hinges on the probable effect it had on the minds of the jurors. Parson v. State, 652 S.W.2d 616, 618 (Tex.App.-Dallas 1983, no pet.). While the cumulative effect of the State’s argument edged closely to the boundary line of reversible error, we conclude the argument itself did not cross over. The closing argument did not make reference to juvenile acts, and we cannot assume that the jury made a connection to the earlier statement in voir dire or to earlier direct examination. We also note that appellant made no objection to any of these arguments, and although appellant made a motion for mistrial, such motion was made before the State’s argument on punishment. Unless the argument is so prejudicial that no instruction could cure the harm, the failure to object waives any error. Plunkett v. State, 580 S.W.2d 815, 823 (Tex.Crim.App.1978).

In summary, while the questions and arguments presented by the State’s attorney approached the line of impermissi-bility, we conclude that they did not specifically inject appellant’s juvenile record into the trial proceedings, nor did they result in obvious fundamental harm to the appellant. See Parson at 617; Brem at 322. Accordingly, these grounds of error are overruled.

Finally, appellant now complains, but made no objection at trial, to the prosecutor’s argument that the jury should “use their common sense.” He argues that this invited the jury to disregard the charge of the court, and therefore constituted reversible error. We find to the contrary: Common sense is a necessary quality for jury service. The application of common sense is not totally inconsistent with the consideration of a criminal jury charge. A different question might be raised if the jury were asked to utilize their common sense and to ignore the jury charge. In any event, unless a jury argument is so inflammatory that the prejudicial effect could not have been cured by an instruction to disregard, a failure to request such an instruction waives any error. Parr v. State, 606 S.W.2d 928, 931 (Tex.Crim.App.1980). Furthermore, the State’s argument fully examined the charge, and the single statement regarding “common sense” could not realistically suggest that the jury do otherwise.

The judgment of the trial court is affirmed.


text:
    John Clayton HARVEY, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-429CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 5, 1984.
    Rehearing Denied June 14, 1984.

      Casey O’Brien, Houston, for appellant.
    Don Clemmer, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   MURPHY, Justice.

This is an appeal from a conviction for aggravated robbery pursuant to Tex.Penal Code Ann., § 29.03(a)(2) (Vernon 1974). Punishment was assessed at ten (10) years confinement in the Texas Department of Corrections.

In his sole ground of error, appellant contends that he was denied effective assistance of counsel. This contention is based on the fact that counsel erroneously advised the appellant that he was eligible for a probated sentence upon a conviction for aggravated robbery.

The evidence adduced at trial reveals that appellant’s counsel was seeking probation from the trial court as illustrated by his filing of an application for probation and by his subsequent argument in favor of a probated sentence at the punishment phase of the trial. It is undisputed that appellant did not receive errorless counsel because a conviction for aggravated robbery precludes the possibility of a probated sentence from the court. TEX.CODE CRIM.PRO.ANN. art. 42.12 § 3f(a)(l)(E) (Vernon 1979).

The test to be applied in determining whether counsel provided constitutionally satisfactory services is the “reasonably effective assistance,” not errorless assistance of counsel. Ex parte Duffy, 607 S.W.2d 507, 513 (Tex.Crim.App.1980). In applying this standard, the adequacy of an attorney’s services must be gauged by the totality of the representation of the accused. Mercado v. State, 615 S.W.2d 225, 228 (Tex.Crim.App.1981). Thus, the determination of such question must turn upon the particular circumstances of each individual case.

In the instant case, the appellant’s only complaint about his counsel’s representation is that counsel advised him that he was eligible for probation. Appellant claims that had he been properly advised by counsel that a conviction for aggravated robbery precluded the possibility of a probated sentence, he would have elected to be sentenced by a jury rather than by the court. Considering the totality of the representation afforded appellant, we reject appellant’s claim of ineffective assistance of counsel.

The decision as to who assesses punishment in any criminal case is a matter of trial strategy. Harris v. State, 629 S.W.2d 805, 806 (Tex.App.-Houston [14th Dist.] 1982, no pet.). We are not in a position to second guess, through appellate hindsight, the strategy adopted by counsel at trial. The fact that another attorney may have pursued a different tactical course is insufficient to support a finding of ineffective assistance of counsel. Ewing v. State, 549 S.W.2d 392, 395 (Tex.Crim.App.1977). Furthermore, we have nothing in the record but the appellant’s own conclusions based on hindsight as to what he would have done had he known he was ineligible for probation. There is no showing that appellant was harmed by the fact that he was sentenced by the court rather than by a jury.

We hold that appellant has not established that he was denied effective assistance of counsel.

The judgment is affirmed.