author: ROBERTSON, Justice. ELLIS, Justice,

text:
    Lonnie Earl RICHARDSON, Appellant, v. The STATE of Texas, Appellee.
    No. B14-83-719CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 28, 1984.
    Discretionary Review Refused March 27, 1985

      Jimmy James, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ROBERTSON, Justice.

Appellant was convicted of criminal solicitation to commit capital murder. The jury assessed punishment at 35 years confinement. Appellant brings four grounds of error concerning: (1) sufficiency of the evidence to corroborate accomplice testimony, (2) fundamentally defective jury charge, (3) variance between indictment and charge, and (4) defective instruction on extraneous offenses. We affirm.

The relevant evidence is (1) appellant and Hancock (accomplice) were neighbors, Hancock having moved into a trailer park across the street from appellant. Hancock actually came to know the appellant through Norman Harris (the victim) who was a neighbor of both Hancock and appellant. (2) Harris testified that he told appellant he was going to buy an icebox and stove for his wife’s anniversary. Appellant offered to sell these items to Harris for $150. Harris bought the items but later suspected that the items were stolen. Harris called Terra Homes because he knew appellant worked there and thought the stove and refrigerator might have been stolen from there. Harris then called the Sheriff’s Department and made a report concerning the items he purchased from appellant. Charges were filed against appellant and Harris was subpoenaed to appear on June 27, 1983, in the 228th District Court in Harris County as a witness in the case. (3) Hancock testified that he met appellant in March or April 1983 through the complainant, Harris; that in June he was seeing him “on a daily basis”; that on “half a dozen or so” occasions appellant asked him to “dispose” or kilí Norman Harris “because he (appellant) wanted to make some money out of running dope and if he would be put in jail, he wouldn’t be able to make that money and Norman Harris was the only one that could testify against him in a theft charge and he wanted him out of the way so he could process (sic) making this money, doing his dope dealing.” Hancock further testified that appellant explained that Norman Harris had received stolen goods from him (appellant) — “I think it was a stove — refrigerator off of him”, and that Harris had “turned him in (to the police) and he needs to get rid of him.” He testified that appellant told him “[I]f you can get rid of Norman, we can make some good money, as far, as you know, running grass, dope, marijuana, and he says, you can make some good money, about $500 a week clear, and have a nice trailer, you know, and all, to put your family in”, and “[I]f I were to get caught or killed in the process of it, that he would take care of my wife and kids, as far as moneywise.” Concerning the actual attempt to kill Harris, Hancock testified that he and appellant were “stripping some wire” that day and appellant told him “[Wjell, this is a good time to do it. Court is getting close and this is a good time to get it done” and he replied “[Wjell, I guess so”; that appellant gave him $50 and dropped him off close to Harris’ house. He testified that he went to Harris’ house, “said hello to Norman and his wife and asked Norman if he would go out and have a few drinks with me and he said sure.” After having several drinks and getting some beer and wine to go he decided to “try to get him off to a secluded spot so I told him there was a place on down near the river, Channelview. I told him there was a bar down there, which there wasn’t one. So we got on down there and I said, well, I had to go to the bathroom, so he stopped the truck and we both got out and I said in my head, ‘Well, if we’re going to do it, might as well do it now.’ So I pulled my knife out, walked around and I cut him.” Finally, he testified that he then called appellant, who came and picked him up, that he informed appellant that he had “cut him” but “he ain’t dead.” He then related how he was arrested later that night, that he confessed to the deputy sheriff and later cooperated by making the telephone call to appellant so it could be recorded. (4) Harris testified: that Hancock came over to his house about 5 p.m. on June 23rd; that the two drove around in Harris’ truck, stopped at several lounges, had some drinks and then stopped at the end of a dead end street to go to the bathroom; that while out of the truck “Hancock walked around the backside of the truck and come in from the backside of the truck and come in from the back part of me, where I couldn’t see him in that direction, and slipped around and cut my throat;” that he “went down to the ground there for just a minute” but was able to get up, kicked Hancock and was then able to escape for help. After loosing consciousness he was taken to the hospital where- he had surgery performed on his throat. (5) Hancock confessed to the police and agreed to assist them in their investigation. He agreed to call appellant on the telephone so the conversation could be taped. The recording of the call reflects that when appellant answered the telephone, the operator said: “collect from Hancock, willyou pay for the call?” Appellant responded he would and immediately, the following occurred and the pertinent parts of the taped conversation are set out:

Hancock: Hello, hey.
Richardson: Hello, Billy.
Hancock: Hey, yeah. I tried to talk to you yesterday.
Richardson: My line is tapped.
Hancock: Huh?
Richardson: My line is tapped. They got a monitor on my line.
Hancock: O.K. Did you take care of what you said?
Richardson: I already gave her 50.
Hancock: Hey. Yeah, hey man. Let’s go ahead and get this damn thing squared away, man. I gotta get the— I’m fixing to go to the damn federal pen. And I wanna know if my damn share of this is gonna be squared away before I get the hell out of Houston.
Richardson: There ain’t no doubt about it. You know, I do what I can do.
Hancock: Well you’re going, you’re going to come across with more than 50 cause that ain’t gonna make it along with them kids and Bonnie.
Richardson: I can only come across with what I got.
Hancock: Well you remember what we talked about and you said “Yeah, that’d be cool. You had it all together.”
Richardson: Yes, But I gotta get the stuff to do it, don’t I? And it ain’t come in.
Hancock: Well, I tell you what, I know one damn thing, that she’s going to have to get something.
Richardson: I already—
Hancock: She has to make at least 200, 300 dollars a week even to goddamn survive cause I ain’t gonna be able to get nothing to her. I’m going to be up in the damn state penitentiary or some damn place for God knows how long. Hey, I pulled the little deal off. O.K. Fine. But if this deal ain’t. We ain’t got no bugs on it over here. I pulled it off and we made an agreement on it. Now I want the agreement to goddam go through. Cause I’m the one who’s paying for it and now they’re paying for it. Now it’s all for something that I don’t even know if it’s gonna work out or not.
Richardson: Billy, I can only give what I got.
Hancock: Well, I need to know if they’re taken care of and, and this little bit, 50 and 75, every two weeks or every week or something ain’t gonna, ain’t gonna, pay their rent and I don’t want them moving in over there, not with that shit going down with you guys, nuhuh, they’ve got to live in their own place. That’s what the agreement was. Nobody said anything about put ... (unintelligible)
Richardson: Billy, I can only do what I got money to do with.
Hancock: I’m up here sweating my ass off about it, too.
Richardson: Billy, as soon as I get the money, they will get some money. As soon as I get the stuff moving. Do you understand what I’m saying? I’ve been waiting on it. You know that.
Hancock: I got some word up here. Norm might not make it. You heard anything?
Richardson: No, I sure haven’t.
Hancock: That’s what they been pushing me up here. He ain’t making it.
Richardson: Well, I talked to my attorney last night. And he said if the man was even in critical shape you’d have a $50,000 bail instead of a $10,000.
Hancock: Yeah.
Richardson: So he’s gonna cheek into it but he can’t do nothing until Monday.

In his first ground of error, appellant contends the trial court erred in overruling his motion for an instructed verdict of not guilty since “the evidence required to corroborate the accomplice witness’ testimony was legally insufficient to corroborate both the solicitation itself and the appellant’s intent that the accomplice act on the solicitation as required by Sec. 15.03(b); V.A.P. C.” We disagree.

Subsection (b) of the criminal solicitation statute, TEX.PENAL CODE ANN. § 15.03 (Vernon 1974) under which appellant was indicted, provides that a person may not be convicted on the uncorroborated testimony of the person allegedly solicited “and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation.” We read this statute in conjunction with TEXAS CODE CRIM.PROC. ANN. Article 38.14 (the general statute on accomplice witness testimony) to require no more than that there must be evidence, other than the testimony of the accomplice “tending to connect the defendant with the offense committed” plus circumstances which strongly corroborate the solicitation itself (as testified to by the accomplice) and that the solicitation was made in earnest.

There can be no question that the accomplice witness Hancock made a complete case against appellant. While the corroborating evidence is far from overwhelming, we find from the following facts sufficient evidence tending to connect appellant to the commission of the offense:

1. appellant sold allegedly stolen goods to Harris
2. Harris reported appellant to the authorities
3. Harris had been summoned to appear at appellant’s trial (to take place four days after the murder attempt)
4. Harris and Hancock were friends and there was no other reason for Hancock to attempt to kill Harris
5. appellant readily accepted Hancock’s collect call
6. appellant immediately admonished Harris that his telephone was “tapped”
7. appellant continuously assured the accomplice during the telephone conversation that he would care for Hancock’s wife and children when there was no apparent obligation to do so nor was there any other explanation given why he was was willing to do so
8. the portion of the telephone call concerning “Norm” and the fact that appellant had checked with his attorney regarding bail

We have no difficulty in finding that the above circumstances plus the circumstances under which Hancock attempted to kill Harris strongly corroborate the solicitation itself and that appellant intended Hancock to act on the solicitation. Appellant’s first ground of error is overruled.

In his second and third grounds of error, appellant contends the charge to the jury was fundamentally defective because it permitted a conviction upon a lesser culpable mental state than alleged in the indictment or as required by Section 15.-03(a). The complained of portion of the charge reads: “did intentionally or knowingly, with intent that capital murder be committed ...” The indictment alleged that appellant “with intent that capital murder be committed, request, command and attempt to induce DARRELL ETHER-IDGE HANCOCK to intentionally and knowingly cause the death....” Section 15.03(a) requires that the person act “with intent that a capital felony or felony of the first degree be committed....” Thus the statute requires specific intent. The charge itself required a finding of acting intentionally or knowingly in addition to a finding that appellant acted with intent that capital murder be committed. The “intentionally or knowingly” phrase was submitted as an additional element; the state’s burden of proof was not reduced. Johnson v. State, 650 S.W.2d 784, 789 (Tex.Crim.App.1983). The second and third grounds of error are overruled.

In his fourth ground of error, appellant complains of the trial court submitting, over objection, a limiting instruction regarding testimony about an extraneous offense because there was no evidence that could support a jury’s finding that appellant committed such extraneous offense. In the present case, apparently the trial court submitted the questioned charge on the theory that the state was entitled to prove the extraneous offense in order to establish a motive for appellant hiring Hancock to kill Harris. On direct examination, Hancock testified as follows:

Q: Do you believe that Mr. Richardson was serious about wanting to kill Mr. Norman Harris?
A: Yes, sir.
Q: And why did you believe he was serious about that?
A: Because he wanted to make some money out of running some dope and if he would be put in jail, he wouldn’t be able to make that money and Norman Harris was the only one that could testify against him in a theft charge and he wanted him out of the way so he could process making this money, doing his dope dealing.
Q: Who told you that Norman Harris was the only one that could put him in jail?
A: Lonnie Richardson.

On cross-examination Hancock testified:

Q: You are leaving the jury with the impression, “I am out here just trying to feed my wife and kids and I got a job as an electrician, just barely getting by”? You were actually pushing marijuana, weren’t you?
A: I wasn’t an electrician. I didn’t have a job as an electrician.
Q: Whatever you could pick up and push marijuana on the side?
A: For what little bit I did, yes. That was going to feeding and to the house.

On re-cross Hancock testified:

Q: In response to counsel’s question, pushing marijuana, what was your involvement in that dealing of any marijuana?
A: To find somebody that wanted to buy it. He wrapped it up in eight-ounce bags.
Q: Who’s he?
A: Lonnie.
Q: So while you were pushing marijuana, you were pushing it for this man, the Defendant Lonnie Richardson?
A: Yes, sir.

The content of the jury charge must be supported in the evidence. Booker v. State, 523 S.W.2d 413, 415 (Tex.Crim.App.1975). As shown above there is evidence that appellant sold marijuana. The charge instructed the jury to consider testimony (if any) relating to other offenses only if they believed beyond a reasonable doubt that such offenses were committed by the appellant and even then only for the purpose of establishing appellant’s motive. We see no error in the limiting instruction of the charge. This ground of error is overruled. The judgment is affirmed.

ELLIS, Justice,

dissenting.

Finding myself in disagreement with the other members of the court, I would like to record my respectful dissent.

In his first ground of error, appellant contends the trial court erred in overruling his motion for an instructed verdict of not guilty since “the evidence required to corroborate the accomplice witness testimony was legally insufficient to corroborate both the solicitation itself and the appellant’s intent that the accomplice act on the solicitation as required by Sec. 15.03(b) V.A.P. C.” I agree.

The appellant was indicted for criminal solicitation under the authority of Tex.Penal Code Ann. § 15.03(a) (Vernon 1974). It states:

A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.

Subsection (b) of the same statute instructs the prosecution and the court as to what is required for corroboration purposes if an attempt is made to base a conviction on testimony from an accomplice witness. It reads:

A person may not be convicted under this section on the uncorroborated testimony of the person allegedly solicited and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation.

It is obvious that Section 15.03(b) is analogous to Tex.Code Crim.Proc.Ann. art. 38.-14 (Vernon 1974) which requires that a conviction based on accomplice witness testimony must contain corroborating evidence from an independent source that tends to connect a defendant to the crime. Saunders v. State, 572 S.W.2d 944 (Tex.Crim.App.1978). This statute is a general statute that applies to all such situations while § 15.03(b) is limited specifically to matters involving criminal solicitation. In order to understand the significance of the dictates of § 15.03(b), a statute with limited precedent, one must first analyze its forerunner, Article 38.14.

Article 38.14 requires that the corroborating evidence tend to connect a defendant to the crime and it is not sufficient if the evidence merely shows the commission of the offense. The evidence must go to the main issue of the crime. However, if the gravamen of the offense involves more than one essential element, then the corroborating evidence must connect the defendant to each of the essential elements. Cagle v. State, 505 S.W.2d 858 (Tex.Crim.App.1974); Fortenberry v. State, 579 S.W.2d 482 (Tex.Crim.App.1979).

The test to determine sufficiency of the corroboration of the testimony from an accomplice witness is to eliminate the evidence of the accomplice from consideration and then examine evidence of other witnesses and from other sources to ascertain if there be inculpatory evidence of incriminating character which tends to connect the accused to commission of the offense. If there is such evidence, the corroboration is sufficient, otherwise it is not. Cherb v. State, 472 S.W.2d 273 (Tex.Crim.App.1971).

Understanding the abovementioned principles of Art. 38.14, it becomes easy to understand the dictates of § 15.03(b). A reading of § 15.03(b) indicates that the legislature incorporated these same principles into its mandates by requiring that the corroborating evidence that connects the primary actor to the crime be strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation. The Practice Commentary that precedes the Title 4 offenses interprets this subsection of the Code as requiring corroboration of both the making of the solicitation and that its making was in earnest.

This analysis makes sense because the gravamen of the offense of criminal solicitation is that one must request, command or attempt to induce another to engage in specific conduct and that this solicitation was made with the intent that a capital felony or first degree felony be committed. Therefore, these are the matters that must be corroborated. Further, it should be noted that the statute requires that the corroborating evidence must be strongly corroborative of both such matters. The use of the term “strongly” in the statute would indicate that the legislature intended for the corroborating evidence under § 15.03(b) to be more than evidence that just tends to connect the defendant to the crime as prescribed by Art. 38.14.

In the present case, Hancock testified that the appellant solicited him to kill Harris for money. The matters that must be corroborated are that appellant requested, commanded, or attempted to induce Hancock to kill Harris and that appellant intended that capital murder be committed. In order to test the sufficiency of this corroboration, we must completely disregard Hancock’s testimony and examine the remaining evidence to determine if it meets the standards of § 15.03(b).

The State is relying on the tape recording to supply the necessary corroboration. Disregarding Hancock’s testimony, we are left with the tape recorded conversation where appellant is discussing some form of activity in order to make money. There is only one slight reference to Harris made during the conversation. Appellant told Hancock that he had not heard about the condition of Harris and that if he was seriously injured that Hancock’s bail would be $50,000 instead of $10,000, and that his attorney would check into the situation later. The tape contains nothing that is incriminating with regard to appellant soliciting Hancock to kill Harris for money. It corroborates nothing.

The fact that Harris was a potential witness against appellant in a criminal case does not prove that appellant hired Hancock to kill him. A motive might be a significant piece of corroborating evidence, but by itself it is not sufficient. The evidence considered in connection with the tape is still insufficient to corroborate testimony that appellant requested, commanded, or attempted to induce Hancock to kill Harris and that this solicitation was made with the intent that capital murder be committed.

Excluding Hancock’s testimony and considering all the remaining evidence collectively, the strongly corroborative requirement of Section 15.03(b) is not met.

Accordingly, I would sustain appellant’s first ground of error and reverse the judgment of the trial court. Double jeopardy law bars reprosecution of a criminal case in which the evidence at trial was insufficient as a matter of law. 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).

       Note: The victim’s name is Norman Harris.


source: Caselaw Access Project

author: JUNELL, Justice.

license: Public Domain

text:
    Willie John JOLLY, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-693CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 19, 1984.

      William Vance, Bryan, for appellant.
    Terrence Keel, Asst. Dist. Atty., Bryan, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

JUNELL, Justice.

This is an appeal from a conviction for the offense of aggravated sexual abuse of a child pursuant to TEX.PENAL CODE ANN. § 21.05 (Vernon 1974). A jury found appellant guilty as charged and assessed punishment at seventy-six (76) years in the Texas Department of Corrections and a $10,000 fine. We affirm.

Appellant was convicted of having engaged in deviate sexual intercourse with his seven-year-old stepdaughter, R_ W_On November 2, 1982, James Easley, brother of the child’s mother, received a phone call from his sister, Anita Webb Jolly. Easley described his sister as being hysterical, crying hard, and asking him to come over to get her and her children, as she had just found out her daughter had been sexually abused by her husband, appellant in the instant case.

That same evening appellant voluntarily went to the Bryan Police Department and asked to speak with someone, stating he had done something of which he was ashamed and wanted to talk to about it. Sergeant Pete Willis listened to the appellant’s tale of engaging in deviate sexual acts with his stepdaughter, including placing his penis in her mouth. During the course of the conversation, Sergeant Willis gave appellant his Miranda warnings. When Sergeant Willis asked appellant to give a written statement, appellant refused and left on his own volition.

A patrolman was later dispatched to the child’s home. The officer made reports of his conversations with the child and her mother. These reports were followed by Detective Ernest Montoya’s obtaining an arrest warrant for appellant.

During one of the pre-trial conferences conducted by the court, Sue Ann Jackson, a child-placement specialist for the Texas Department of Human Resources, testified she first met with the child in this cause on November 9,1982, regarding a report Jackson’s department had received on November 4, 1982 about the child. Jackson met with the child on several occasions prior to videotaping their September 29,1983, interview. In that interview R_W_ told of various sexual acts appellant had been performing on her since he had married her mother and begun living with Mrs. Jolly, R_W_, and her brother, J.J. During that interview R_ W_revealed the acts began when she was three or four years old. Her stepfather always “tucked” her in at night. He began putting “his personal place” [his penis] in her mouth. He would lick all over her body, including her breasts. He made her engage in the acts described almost every night (when her mother was not at home or was taking a bath or was outside mowing the grass). The videotape was previewed by the trial court and later admitted as State’s Exhibit One. Although the record reflects that R_W_ had been subpoenaed and was present and available to testify at trial, she was not called.

Prior to trial a civil suit for exemplary damages had been brought against the appellant by R_W_and her mother for the same underlying cause of action. Appellant urges thirteen grounds of error: one regarding the admission of appellant’s confession, two on exclusion of impeachment evidence related to the pending civil suit, one on admission of a statement made by the mother, and nine complaining of the admission of the videotape into evidence.

In his first ground appellant alleges the trial court reversibly erred in overruling his objection to the admission of his oral confession. Appellant contends TEX. CODE CRIM.PROC.ANN. art. 38.22 (Vernon 1982-1983) prevents Officer Willis’ testimony of appellant’s oral statements to him from being introduced into evidence. We hold Article 38.22 is not applicable here. Appellant argues he was under custodial arrest at the time he made those statements and that they are therefore inadmissible. However, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) defines custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (emphasis added).

Appellant’s situation is similar to those in Stone v. State, 583 S.W.2d 410 (Tex.Crim.App.1979) and Brooks v. State, 580 S.W.2d 825 (Tex.Crim.App.1979). In Stone the defendant voluntarily went to the police station in his own car after police officers interviewed him twice the day before; after both prior occasions he had been at liberty to leave. He was given his warnings pursuant to TEX.CODE CRIM.PROC. ANN. art. 15.17 and was then administered a polygraph test. Later he was informed he had failed the test and “probably” would be charged. At no time prior to the confession was Stone arrested or told he could not leave as he had been allowed to do previously. He made an oral confession. After more questioning by the police, he was arrested and charged. The court held he was not in custody at the time he made that confession. Stone, supra at 413.

In Brooks v. State, supra, the defendant had also voluntarily gone to the police and was not under arrest when he gave his statement to a Detective Tucker. Tucker testified defendant was free to go after finishing his statement. The court of criminal appeals held (1) appellant had gone to the police voluntarily, (2) his oral statement was not the result of custodial interrogation, and (3) the oral statement was elicited prior to arrest.

In the instant case appellant also voluntarily appeared at the police station; he asked to speak with an officer and orally volunteered information in narrative form about what had occurred. As with the above two defendants, appellant was never placed under arrest and was free to leave at all times. After confessing, he called an attorney, who warned him not to sign any statements. Appellant then left. We conclude that the appellant was not undergoing custodial interrogation at the time he made his oral confession and that said confession was properly admitted. We therefore overrule appellant’s first ground of error.

Appellant’s second and third grounds contend error in excluding impeachment evidence showing that the victim of the offense and her mother had also filed a civil suit against appellant. Almost ten months before appellant’s case went to trial, Mrs. Jolly, individually and as next friend of R-W_, filed a Petition for Divorce alleging the acts of sexual abuse had transpired over a three and one-half year period. The petition included a request for exemplary damages of not less than $100,-000. Appellant wanted to introduce this impeachment evidence through the testimony of Mrs. Jolly’s attorney, John Delaney, and by having admitted into evidence a copy of the First Amended Original Petition for Divorce. Appellant’s cited cases and his objective in the case at bar are distinguishable. Appellant’s cases state that when a witness brings a civil suit growing out of the same incident against a defendant, this fact can be brought to the jury’s attention in order to show motive and bias. However, appellant’s cases indicate such must be done by cross-examination of the witness who initiated the suit, not by the introduction of the pleading itself or by the testimony of a third party. Cox v. State, 523 S.W.2d 695 (Tex.Crim.App.1975); Hoffman v. State, 85 Tex.Cr.R. 11, 209 S.W. 747 (1919).

If a witness testifies on behalf of the state against an accused, then the fact the witness has brought a civil suit, too, is admissible. Branford v. State, 165 Tex.Cr.R. 314, 306 S.W.2d 725 (1957). R_ W_’s testimony on the videotape is her direct testimony. Had appellant called her to the stand, he could have cross-examined her as to any possible knowledge of the pending civil suit. Appellant would have been allowed wide latitude in establishing facts tending to demonstrate ill-feeling, bias, motive, or animus. The jury would have been given the opportunity to judge the witness’s credibility in light of that witness’s feelings toward appellant. Appellant, however, chose not to call R-W_and therefore waived his opportunity of cross-examination and any possibility of impeaching her credibility. Attorney Delaney testified he had never even met R_W_so any testimony he might have proferred about her knowledge of the pending civil suit would have been hearsay and inadmissible for impeachment purposes. Green v. State, 566 S.W.2d 578 (Tex.Crim.App.1978). We overrule appellant’s second ground of error.

It is axiomatic that the person to be impeached must be a witness. Here, the mother never testified; therefore, the trial court did not err in excluding Delaney’s testimony regarding Mrs. Jolly’s possible motives. We overrule appellant’s third ground of error.

Under Appellant’s fourth ground of error he contends the trial court erred in overruling his objection to the admission of hearsay evidence. Appellant claims Eas-ley’s testimony of his conversation with his sister, R_ W_’s mother, was hearsay, and that there was no res gestae exception proven at trial. The predicate for the admission of res gestae statements is:

(1) an occurrence sufficiently startling to produce a spontaneous and unreflect-ing statement;
(2) absence of time to contrive, misrepresent or fabricate; and
(3) the statement must be related to the circumstances of the occurrence.

Martinez v. State, 533 S.W.2d 20, 23 (Tex.Crim.App.1976). We find appellant’s argument that the state failed to establish this predicate by not proving when the child’s mother first learned about the acts in question unconvincing. Although time is to be taken into consideration, the paramount factor is spontaneity. “[T]he person who made the statement or declaration [must] still [be] dominated at the time by emotions instigated by the happening of the principal act or event.” Fisk v. State, 432 S.W.2d 912, 915 (Tex.Crim.App.1968). Easley testified that his sister was hysterical, crying hard and blurting out information. Additionally, he stated she had just returned from work and had just found out her daughter had been sexually abused by appellant. We find the above sufficient evidence to establish that appellant’s wife was still being dominated by her discovery that her husband had been sexually abusing her daughter. The mother’s remarks to Easley are admissible under the res gestae exception to the hearsay rule. We overrule appellant’s fourth ground of error.

Grounds of error five through thirteen relate to the key piece of evidence in appellant’s case, the videotape of the interview between R_ W_ and the child-placement specialist. This court has viewed that tape in its entirety. This is a case of first impression interpreting the recently amended Art. 38.071 of the Texas Code of Criminal Procedure, entitled “Testimony of child who is victim of offense.” Appellant’s fifth ground of error complains of the admission of the videotape as a denial of his right to confront and cross-examine the child. The admission of such testimony is specifically allowed by the above article so long as the victim is available to testify. It is undisputed that the child was available at trial. Appellant had the opportunity to call her to the witness stand but chose not to do so. Section 2(a)(8), (b) provides that the opposing party may cross-examine the child. The choice not to cross-examine her was his; therefore, he cannot complain on appeal of having failed to do so. Appellant’s fifth ground of error is without merit and is overruled.

Appellant claims in his sixth ground the trial court erred in overruling his objection to the admission of the videotape without first making a preliminary inquiry into the child’s competence. Appellant’s reliance upon Fields v. State, 500 S.W.2d 500, 502 (Tex.Crim.App.1973), is misplaced. That case holds “[T]he competency of a witness to testify is generally a question for determination by the trial court and its ruling will not be disturbed on appeal unless an abuse of discretion is shown.” Id. at 502. We find no such abuse of discretion in the instant case. The record reflects the trial court, in a pre-trial conference, previewed the videotape. A trial court can base its ruling of competence on a review of the entire testimony of a witness. Clark v. State, 558 S.W.2d 887 (Tex.Crim.App.1977). In Clark the court of criminal appeals upheld a defendant’s conviction for Indecency with a Child, stating the trial court had not abused its discretion in allowing a six-year-old prosecutrix to testify despite her making inconsistent statements and her having given much of her testimony in response to leading questions. The Clark court relied upon TEX.CODE CRIM.PROC.ANN. art. 38.06(2) (Vernon 1979), which allows all persons to testify except

[c]hildren or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath.

After an independent viewing of the tape, we find the child was competent to testify, and we overrule the sixth ground of error.

Appellant alleges in his seventh and eleventh grounds that the court erred in overruling his objections regarding the reliability of the videotape recording. Appellant claims in his seventh ground the videotape was inadmissible because all voices on the recording were not identified as required by TEX.CODE CRIM.PROC. ANN. art. 38.071 § 2(a)(5) (Vernon Supp. 1984). Appellant claims in his eleventh ground the recording equipment was not capable of making an accurate recording. Edwards v. State, 551 S.W.2d 731, 733 (Tex.Crim.App.1977) established the predicate for the admissibility of a recording in a criminal case as follows:

(1) a showing that the recording device was capable of taking testimony,
(2) a showing that the operator of the device was competent,
(3) establishment of the authenticity and correctness of the recording,
(4) a showing that changes, additions, or deletions have not been made,
(5) a showing of the manner of the preservation of the recording,
(6) identification of the speakers, and
(7) a showing that the testimony elicited was voluntarily made without any kind of inducement.

That court also held that some of the requirements set out above may be inferred from the testimony. The record in the instant case shows:

(1) Jackson had received special instructions on using the equipment prior to employing it;
(2) the tape was a true and accurate representation of the interview;
(3) Jackson has had exclusive control of the tape since it was made;
(4) there had been no changes, additions, or deletions to the tape since Jackson obtained it;
(5) Jackson could identify, both visually and aurally, the only speakers on the tape as being R_W_and Jackson; and
(6) Jackson neither suggested what R_W_should say nor had she induced her in any manner to testify on that tape.

Jackson explained that the brief, unintelligible noises heard in the recording were incidental sounds coming from outside the room. A trial court has broad discretionary powers regarding admissibility of recordings. We do not find that discretion was abused in appellant’s case. Id. His seventh and eleventh grounds of error are accordingly overruled.

Appellant alleges in his eighth ground of error the trial court erred by overruling his objection to the videotape because the child’s statements were made in response to leading questions. Appellant has preserved nothing for review as he has cited this court to no questions in particular, thus directing this court’s attention to the error on which he relies. TEX.CODE CRIM.PROC.ANN. art. 40.09 § 9 (Vernon Supp.1985). However, due to the fact that this case is one of first impression under Art. 38.071, we elect to address this issue. With such a young witness the trial court is permitted flexibility in dealing with the stringent rule prohibiting the asking of leading questions. Flannery v. State, 135 Tex.Cr.R. 235, 117 S.W.2d 1111 (1938). Flannery involved the competency of a nine-year-old witness in a rape case. The Flannery court noted that even though a certain question was admittedly leading, “[T]he rigor of the rule forbidding the asking of such questions bears some flexibility when dealing with a witness of tender years.” Id. 117 S.W.2d at 1113, 1114. We find the percentage of arguably leading questions in the approximately thirty-minute interview were minuscule. We overrule appellant’s eighth ground of error.

Appellant alleges in his ninth ground that the trial court erred in overruling his objection to the admission of the videotape on the ground that the recording was not made before the proceedings began. Section 2 of Art. 38.071 provides that the recording of an oral statement of the child made “before the proceeding begins” is admissible into evidence if the other requirements of Art. 38.071 are satisfied. Appellant argues that the proceeding against him began on November 8, 1982, when the complaint was filed, and therefore the videotape recording made on September 29, 1983, was not admissible under Art. 38.071. The state argues that the words “before the proceeding begins” as used in Section 2 of Art. 38.071 mean “before the trial begins;” and trial of the instant case having begun on October 3, 1983, the videotape recording was admissible. We agree with the state’s argument and hold that a videotape recording made before the trial begins satisfies the time requirement of Section 2.

The word “proceeding” appears in two other parts of Art. 38.071, and in each instance it is clear that “proceeding” means “trial.”

In Section 2(a)(6) one condition to admissibility of the videotape recording is stated as follows: “if ... the person conducting the interview of the child in the recording is present at the proceeding and available to testify or be cross-examined by either party;” (emphasis added).

Then Section 5 provides:

If the court orders testimony of a child to be taken under Section 3 or 4 of this article, the child may not be required to testify in court at the proceeding for which the testimony was taken, (emphasis added).

Furthermore, it would be illogical to limit admissibility of a videotape recording to eases where the recording was made before the complaint was filed. Such a narrow limitation would thwart the overall purposes of the statute. Appellant’s ninth ground of error is overruled.

In his tenth ground appellant contends the trial court erred in admitting the videotape into evidence because the child was not placed under oath before the recording was made. Nothing in the statute requires that the child be placed under oath. State’s Exhibit One shows that R_ W_ was thoroughly questioned by Jackson as to the child’s appreciation of the truth and what happens to persons who do not tell it. She promised to tell the truth to Jackson. It is well established that a child may be a competent witness if she knows it is wrong to lie and will be punished if she does so. Provost v. State, 514 S.W.2d 269 (Tex.Crim.App.1974). Appellant’s tenth ground of error is overruled.

Appellant complains in his twelfth ground of error the trial court erred in admitting the videotape over his objections. Appellant argues that the entire videotape was hearsay. We disagree. Article 38.071 explicitly authorizes admission into evidence of videotape recordings. If the statutory requirements are satisfied, a hearsay objection has no merit. We overrule appellant’s twelfth ground of error.

In the thirteenth ground of error appellant contends the trial court erred in admitting the videotape into evidence because the indictment did not allege that the offense had been committed against a child 12 years of age or younger. One count of the indictment states that the child was younger than 14 years. In two other counts the child’s age is stated as younger than 17 years. These allegations in the indictment were made in order to satisfy the statutory requisites of the crime. See TEX.PENAL CODE, § 21.05, § 21.10 (repealed) 21.11 (Vernon Supp.1985).

Article 38.071 of the code of criminal procedure provides in Section 1 as follows:

This article applies only to a proceeding in the prosecution of an offense ... alleged to have been committed against a child 12 years of age or younger, and applies only to the statements or testimony of that child.

Article 38.071 does not specifically require that the indictment allege that the offense was committed against a child 12 years of age or younger. In the instant case the state filed a pre-trial motion for the court to view and rule on the admissibility of the videotape. In its motion the state alleged that the subject of the videotape was a child 7 years of age. The trial court determined that the child was 7 years of age and there is no contention by appellant that the child was not 7 years old. We hold that the trial court complied with Art. 38.071, Section 1, and overrule appellant’s thirteenth ground of error.

The conviction of the trial court is affirmed.


author: DRAUGHN, Justice.

text:
    Victor & Guadalupe GUTIERREZ, Appellants, v. STATE of Texas, Appellee.
    No. A14-81-793CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 9, 1984.

      C.R. Daffern, Amarillo, for appellants.
    Miguel Martinez, Amarillo, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

This is an appeal from a conviction of capital murder. A jury found two brothers, Victor and Guadalupe Gutierrez, guilty of intentionally killing a police officer and sentenced them to life imprisonment. In seventeen grounds of error, appellants now complain of various errors in the charge, particularly in the application of the law of parties, insufficiency of the evidence, and of the court’s failure to allow appellants to cross-examine an eyewitness regarding offenses pending against him or to introduce evidence of the prior statements of a co-in-dictee. We find no reversible error and therefore affirm the judgment of the trial court.

In order to clarify our review, we first delineate the pertinent facts. On December 25, 1980, appellants, their younger brother Ernesto, and Urbano Flores, drove into Amarillo from their home in Dumas. After patronizing a local bar and consuming some quantity of liquor, the four men drove around Amarillo. Police Officer Berry Joe McGuire, who was on patrol at the time, apparently noticed some irregularity in the car’s movement, and signaled for them to pull over. Victor, the driver, got out of the car and approached Officer McGuire. Officer McGuire asked Victor for some identification, and, after viewing it, arrested him and placed him in handcuffs. He then placed Victor in his patrol car and returned immediately to appellant’s vehicle.

Bonofacio Navarette (Navarette), who lived across the street from the site of the arrest, noticed the flashing patrol car lights and came to his window. He had observed the officer as he handcuffed and placed Victor in the car. Navarette testified that the officer left Victor in the patrol car and approached the other vehicle. Meanwhile, Victor attempted to get out of the police car. McGuire put him back into the car, returned to Victor’s car and took the ignition keys. At this point, Victor once again had gotten the patrol car door open and was attempting to leave. As McGuire returned his patrol car to attend to Victor, Guadalupe, Ernesto, and Urbano got out of the other car. The testimony indicates that McGuire spoke to the men and then attempted to put Victor back into the car. All four men began fighting with the officer, pushing him to the ground and kicking him while he yelled for help. Navarette heard one of the men yell “fuck him up,” and then heard four shots. Victor and Guadalupe fled in Victor’s car and were apprehended later outside Amarillo after their car ran out of gas. Officer McGuire was found dead at the scene of the occurrence with gunshot wounds to the head, shoulder, and hip. Appellants were tried and convicted of his capital murder.

The charge of the court included several paragraphs instructing the jury as to the appellant’s potential vicarious responsibility under the law of parties. Both appellants argue that these charges on the law of parties were incorrect for a variety of reasons. Initially, we point out that the court was permitted to charge the jury on the law of parties although no such allegation was contained in the indictment. See Pitts v. State, 569 S.W.2d 898, 900 (Tex.Crim.App.1978). Furthermore, the court’s refusal of Guadalupe’s motion to quash his indictment because of its failure to specify the manner in which he was a party was not error since such an allegation is unnecessary.

Appellants next suggest that the instructions on the law of parties allowed the jury to convict them without proper proof of the requisite mental state. Appellant Gutierrez first challenges the following portion of the court’s charge:

Alternatively, if you find from the evidence beyond a reasonable doubt that on or about December 25, 1980 in Potter County, Texas, that the only difference between what actually occurred (the Capital Murder of Berry McGuire), if it occurred, and what the defendant desired, contemplated, or risked (the felony offense of Aggravated Assault on a Peace Officer, against Berry McGuire) was that a different offense (Capital Murder of Berry McGuire) was committed, then you will find the defendant, Victor Gutierrez, guilty of Capital Murder.

Appellant argues that this contradicts the holding in Garrett v. State, 573 S.W.2d 543 (Tex.Crim.App.1978). He contends it differs from the Garrett holding on that intent to commit aggravated assault is not sufficient to support a finding of guilty of capital murder. Victor’s reliance on Garrett is misplaced. The holding in Garrett was directed exclusively at the felony-murder statute. See Tex.Penal Code Ann. § 19.02(a)(3) (Vernon 1974). The instant charge, however, was based on Penal Code section 6.04(b)(1), the common-law “transferred-intent” doctrine. This section specifically provides that where several people act together in pursuit of an unlawful act, each one is liable for collateral crimes, even though unplanned and not intended, if the crimes are the foreseeable, ordinary and probable consequences of the preparation or execution of the unlawful act. Curtis v. State, 573 S.W.2d 218, 223 (Tex.Crim.App.1978) (emphasis added). Since intent for the collateral crime was not required, the judge was correct in refusing to so charge the jury.

Similarly, Victor contends that this portion of the charge constituted a comment on the weight of the evidence. Specifically, he argues that the court assumed that he contemplated or risked the aggravated assault and further assumed that capital murder was the different offense and that the aggravated assault was a felony. There was evidence in the record indicating that Victor was involved in an aggravated assault. The charge authorized a conviction for capital murder only if the jury found that the murder occurred as a result of an act which Victor desired or risked, namely aggravated assault. Since there was evidence of the assault, any perceived comment on the evidence constituted harmless error. See Coplin v. State, 585 S.W.2d 734, 736 (Tex.Crim.App.1979). Additionally, the court did not assume a capital murder was committed, but rather referred to it only “if it occurred”. The court properly referred to aggravated assault as a felony, as it is so designated in the Penal Code. See Tex.Penal Code Ann. § 22.02(c) (Vernon 1974). This ground of error is overruled.

In the next ground of error, Victor contends that the trial judge erroneously submitted a charge authorizing them to convict him of capital murder if they believed the shooting occurred during, and in furtherance of, a conspiracy to commit aggravated assault. He argues that this improperly permitted conviction absent proof of intent to kill Officer McGuire. We find this contention to be without merit because this portion of the charge tracked the language of Penal Code § 7.02(b). Section 7.02(b) contains a theory of criminal responsibility, which specifically applies to a defendant “though [he has] no intent to commit” the collateral offense. Tex.Penal Code Ann. § 7.02(b) (Vernon 1974). Since this section of the Penal Code is applicable to capital murder cases, the necessity for proof of intent is eliminated. See English v. State, 592 S.W.2d 949, 954-55 (Tex.Crim.App.1980), cert. denied, 499 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980); Ruiz v. State, 579 S.W.2d 206 (Tex.Crim.App.1979).

Additionally, the court had no obligation to instruct the jury at that point that if Victor lacked the intent to kill Officer McGuire, he was guilty of aggravated assault. We first point out that the jury was charged that Victor could be found guilty of aggravated assault if they did not find him guilty of murder or capital murder; thus a charge on aggravated assault was included. However, appellant submits that a special instruction concerning the lack of intent to kill Officer McGuire should have been given along with the murder charges. The charge required that the jury find that Victor intentionally and knowingly killed Officer McGuire, either individually or as a member of a conspiracy. Special instructions are not necessary when they simply emphasize an element of the case which the State is required to prove and which the defendant affirmatively denies. See Green v. State, 566 S.W.2d 578, 584 (Tex.Crim.App.1978); Campbell v. State, 626 S.W.2d 91, 92 (Tex.App.-Corpus Christi 1981, no pet.). Since Victor’s requested instruction merely negated the element of intent, it was not error to refuse same. These grounds of error are overruled.

Victor next argues that there was no evidence to support the charge that he fired the gun. This issue is based on a misunderstanding of the application of the law of parties. The charge provided the following:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 25th day of December, 1980, in Potter County, Texas, that the defendant, Victor Gutierrez, acting as a party, did then and there intentionally or knowingly cause the death of an individual, Berry McGuire, hereafter styled the complainant, a peace officer in the lawful discharge of an official duty, knowing at the time that the complainant was a peace officer, by shooting the complainant with a firearm, then you will find the defendant, Victor Guterrez, guilty of Capital Murder.”

Although it requires the jury to find that Victor intentionally or knowingly caused the death of McGuire, he need only have done so as a party. It is fundamental to the law of parties that each party to an offense may be charged with the commission of the offense. Specifically, each party may be held criminally responsible for the acts of another. Tex.Penal Code Ann. §§ 7.01, 7.02 (Vernon 1974). It is therefore immaterial to the parties charge that Victor did not actually pull the trigger. This ground of error is overruled.

Victor also contends that the law of parties was improperly applied in the following portion of the charge:

“Therefore, if you find from the evidence beyond a reasonable doubt that on or about the 25th day of December, 1980, in Potter County, Texas, the said defendant, Victor Guiterrez, did then and there, as a party, acting with the intent to promote or assist the commission of the offense, solicit, encourage, direct, aid, or attempt to aid Ernesto Gutierrez, and/or Urbano Jaramillo Flores, and/or Guadalupe Gutierrez to intentionally or knowingly cause the death of an individual, Berry McGuire, hereafter styled the complainant, a peace officer in the lawful discharge of an official duty, knowing at the time that the complainant was a peace officer, by shooting the complainant with a firearm, then you will find the defendant guilty of Capital Murder.” (emphasis added).

The judge applied this same charge to the offense of murder. Victor argues that the failure to delineate “the offense” was a fatal defect. He urges that the jury could have believed that he need only have intended to assist in the commission of aggravated assault, rather than capital murder or murder, and still be found guilty of those greater crimes. We disagree. Unless an entire element of an offense is omitted from the charge, the charge must be read as a whole and review should not be limited to one part standing alone. Pittman v. State, 554 S.W.2d 190, 191 (Tex.Crim.App.1977); Robinson v. State, 630 S.W.2d 394, 399 (Tex.App.-San Antonio 1982, pet. ref'd). In this charge, the previous paragraph stated that that portion of the charge concerned capital murder. There had been no reference of any kind to any other offense, and the portion describing aggravated assault appeared at the end of the charge, apart from the capital murder and murder sections. It stretches the imagination to suggest that this constituted an improper application of the law of parties. This ground of error is overruled.

Both Victor and Guadalupe contend that there was insufficient evidence of criminal responsibility to support the charge on the law of parties. They both argue that there was no evidence that they entered into a “conspiracy” to kill the officer, and Guadalupe additionally complains that there was no evidence that he knew of Ernesto’s intent to kill him.

Appellants’ charges relied on two major theories of criminal responsibility for the acts of another, namely Penal Code sections 7.02(a)(2) and 7.02(b). Under both of these theories, the fact that appellants did not participate in the actual shooting is immaterial. Curtis v. State, 573 S.W.2d 219, 222 (Tex.Crim.App.1978). Rather, responsibility is determined through complicity in the actions. Consequently, the evidence must sufficiently establish either that (1) appellants, acting with intent to promote or assist in the killing, solicited, encouraged, directed, aided or attempted to aid in its commission; or (2) the murder occurred during an agreed attempt to carry out an aggravated assault and the murder was in furtherance of that attempt and should have been anticipated. See Tex.Penal Code Ann. §§ 7.02(a)(2), 7.02(b) (Vernon 1974). In deciding whether an “agreement” or “conspiracy” or promotion of the offense existed, we may examine events prior to, during and after the occurrence of the offense. Curtis v. State, 573 S.W.2d 219, 222 (Tex.Crim.App.1978). The evidence must include at least some type of encouragement by words, actions, or agreement, which show an understanding and common design to do a certain act. See Curtis at 222; Baldridge v. State, 543 S.W.2d 639, 643 (Tex.Crim.App.1976).

The eyewitness testimony here indicated that all four men were present at, and involved in, the incident. Victor immediately evidenced animosity toward the officer and the situation by his repeated attempts to leave the police car. The three others joined into the fracas by aiding Victor. The testimony indicates that all four men began beating on the officer, knocking him to the ground, kicking him, and all four of them were on top of him when the officer was shot. Ernesto shouted “fuck him up”, which, according to the evidence, was a Mexican colloquialism for “kill him”. At this point the fatal gunshots were fired, and all four men then fled the scene. The evidence clearly shows an implicit agreement to commit the offense formulated contemporaneously with the offense. See Curtis at 222; Gordon v. State, 640 S.W.2d 743, 758 (Tex.App.-San Antonio 1982, no pet.). We hold that the evidence, when viewed in the light most favorable to the verdict, sufficiently shows that appellants, by their actions, participated in and therefore agreed to the assault and resulting murder of Officer McGuire.

Guadalupe’s attack on the insufficiency of evidence regarding his lack of knowledge as to Ernesto’s intent to kill McGuire is similarly without merit. He correctly points out that some knowledge of the party’s intent to kill the officer is required; however, the knowledge can again be inferred from the circumstances surrounding the occurrence. See Randolph v. State, 656 S.W.2d 475, 477 (Tex.Crim.App.1983); Baldridge v. State, 543 S.W.2d 639, 643 (Tex.Crim.App.1976). Guadalupe was involved in the fight and the jury could easily have inferred that he, along with the others, contemporaneously agreed to the killing. Additionally, we are not convinced that the cases cited by appellant are controlling. The holding in Baldridge is based on a 1971 case, prior to the adoption of 7.02(b) of the Penal Code. Under this section of the code, a finding of intent to kill was unnecessary. Rather, Guadalupe need only have participated in an aggravated assault, which subsequently escalated into murder. Tex.Penal Code Ann. § 7.02(b) (Vernon 1974). For both of the foregoing reasons, appellants’ insufficiency grounds of error are overruled.

Guadalupe next contends that the trial court erred in failing to quash the indictment because it did not give notice of the facts constituting the offense. We disagree. An indictment which tracks the language of a penal statute is legally sufficient to provide the defendant with notice of the offense with which he was charged. Ward v. State, 642 S.W.2d 782 (Tex.Crim.App.1982); Bollman v. State, 629 S.W.2d 54, 55 (Tex.Crim.App.1982). This indictment charged Guadalupe with knowingly and intentionally causing the death of a peace officer in the lawful discharge of an official duty, knowing at the time that he was a peace officer. This essentially tracks the language of Sections 19.02(a)(1) and 19.03(a)(1), and therefore provided adequate notice of the offense.

Appellant also argues the trial court erred in failing to respond to appellants’ timely requested special charge and instruction to the jury on the defense of independent impulse. We disagree. An independent impulse defense, as applicable to section 7.02(b) prosecutions, rests on the creation of a reasonable doubt that the offense charged was not committed in furtherance of the unlawful purpose of the conspiracy. Where some evidence is presented that might support such a reasonable doubt on the issue, a jury charge on the defensive matter should be given. Simmons v. State, 594 S.W.2d 760 (Tex.Crim.App.1980), vacated on other grounds, 453 U.S. 902, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981), on remand 623 S.W.2d 416 (Tex.Crim.App.1981) (en banc).

Here there was no evidence presented that the murder of Officer McGuire was not committed in the furtherance of the assault upon him. Since the death of the police officer would have been a reasonably foreseeable consequence of such a violent assault in which the appellant participated, the appellant was not entitled to an instruction on the defense of impulse.

Victor and Guadalupe both urge that the trial court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter. We disagree. A charge on voluntary manslaughter is necessary only when there is evidence that a defendant acted under the immediate influence of sudden passion arising from adequate cause. Schoelman v. State, 644 S.W.2d 727, 733 (Tex.Crim.App.1983). Victor suggests that he was reacting to undue force exhibited by Officer McGuire during the arrest, while Guadalupe argues that he was provoked by the Officer shutting the patrol car door on Victor’s legs. Even if these allegations were true, we do not believe they would support a finding of sudden passion arising from adequate cause. Officer McGuire attempted to make a routine DWI arrest, after which the suspect made several attempts to flee. It is ludicrous to suggest that any type of physical force by a lone police officer at this point constituted adequate cause to retaliate with a violent, unrestrained attack and murder. Appellants were not entitled to an instruction on voluntary manslaughter, and these grounds of error are therefore overruled.

In his final attack on the jury’s charge, Victor contends that the charge as a whole was misleading and confusing and calculated to injure his rights. After careful review of the charge as a whole, we find that it sufficiently presented the applicable law and adequately protected his rights. See Garcia v. State, 630 S.W.2d 914, 917 (Tex.App.-Amarillo 1982, no pet.). The charge first dealt with the offense of capital murder and explained the various theories of criminal responsibility related thereto. It then instructed the jury that if they did not find him guilty of capital murder, that they could find him guilty of murder under the theories of complicity. Finally, they were told that if he was not guilty of either of the murder charges, he could be found guilty of aggravated assault. Although admittedly complex, the charge was arranged in an orderly fashion presenting alternative theories of culpability. As such, we find it does not present grounds for reversal on appeal.

Appellants Victor and Guadalupe next assert that the trial court erred in not permitting them to question witness Bono-facio Navarette in front of the jury regarding certain charges pending against him for the limited purposes of showing bias, prejudice, interest and motive with regard to his testimony. As one of the prosecution’s principal witnesses, Navarette testified that he watched the altercation between the defendants and the victim from the window of his home. Even though Navarette was not the only eyewitness, his testimony was very damaging to the appellants. Appellants argue they should have been allowed to impeach Navarette’s testimony by showing that misdemeanor charges for theft, DWI, and bond forfeiture were pending against Navarette, and that the theft charge had been dropped shortly after the death of the victim.

At the beginning of the appellants’ cross-examination of Navarette, the district attorney requested that the court grant his motion in limine to prevent questioning the witness about charges pending against him. After some discussion among the judge, the district attorney, and appellants’ attorneys, Navarette was taken on voir dire and questioned thoroughly by appellants’ attorneys and by the district attorney. Navarette testified he had not been promised special treatment by any law enforcement officer or anyone from the district attorney’s office. The district attorney also took the stand and testified that no one from his office had suggested to Navarette the possibility of favorable treatment in exchange for his testimony. He testified that the charges pending against the witness were all misdemeanors and were within the county attorney’s jurisdiction so that the district attorney had no control over the disposition of these charges. The trial judge then granted the State’s motion in limine and appellants were not allowed to question the witness before the jury about the pending charges.

It is a well-established rule that great latitude is allowed the accused in showing any fact, including pending charges, which would tend to establish ill feeling, bias, motive, and animus on the part of any witness testifying against him. Parker v. State, 657 S.W.2d 137 (Tex.Cr.App.1983). Spriggs v. State, 652 S.W.2d 405 (Tex.Crim.App.1983), cert. denied, - U.S. -, 104 S.Ct. 249, 78 L.Ed.2d 237 (1983); Hodge v. State, 631 S.W.2d 754 (Tex.Crim.App.1982); Carrillo v. State, 591 S.W.2d 876 (Tex.Crim.App.1979); Spain v. State, 585 S.W.2d 705 (Tex.Crim.App.1979); Chvojka v. State, 582 S.W.2d 828 (Tex.Crim.App.1979); Bates v. State, 587 S.W.2d 121 (Tex.Crim.App.1979); Cloud v. State, 567 S.W.2d 801 (Tex.Crim.App.1978); Simmons v. State, 548 S.W.2d 386 (Tex.Crim.App.1977); Evans v. State, 519 S.W.2d 868 (Tex.Crim.App.1975); Smith v. State, 516 S.W.2d 415 (Tex.Crim.App.1974). See also Hall v. State, 663 S.W.2d 154 (Tex.App.-Fort Worth 1983, no pet.). However, trial courts have considerable discretion as to how and when bias may be proved and as to what collateral evidence is material for that purpose. Spriggs at 408; Hodge at 758; Carrillo at 886; Chvojka at 831; Bates at 133; Cloud at 802. The extent to which a witness may be cross-examined on collateral matters for the purpose of showing bias rests in the sound discretion of the trial judge. The judge must balance the probative value of the evidence sought to be introduced against the prejudicial risk in its admission. Risks include the possibility of undue prejudice, embarrassment, harrassment to either witness or party, and the possibility of undue delay or waste of time. Carrillo v. State, 591 S.W.2d 876 (Tex.Crim.App.1979).

Generally, unadjudicated criminal offenses may not be used to impeach witness in a criminal case; however, evidence of pending charges against the witness is admissible for the limited purpose of showing bias, prejudice, interest, and motive of the witness in testifying as he did. Id. Although the mere fact of an arrest or indictment of a witness is not normally admissible for impeachment purposes to show bias, motive, ill feelings or animosity where the evidence of an arrest or legal accusation arises out of the same transaction for which the defendant is on trial, it may be admissible to impeach the witness. Smith v. State, 516 S.W.2d 415 (Tex.Crim.App.1974).

In the instant case, the witness, Navarette, was not an accomplice, suspect, or in any way a participant in the crime for which the appellant was charged. Rather, he was an innocent bystander who happened to be in a position to observe the events in question. He did not know any of the parties involved and therefore had no reason to be biased or hostile toward appellants. Furthermore, the charges pending against Navarette were in no way connected with the death of the victim. Rather, they were misdemeanor charges filed by the county attorney’s office, not the district attorney’s office.

The trial judge allowed the appellant to question the witness extensively on voir dire. Navarette and the district attorney both testified that no deal had been made. Because there was no evidence suggesting self-interest, ill will, or animus, the trial court, in its discretion, refused to allow cross-examination before the jury as to the charges pending against Navarette. We cannot under these circumstances say the trial court abused its discretion.

Appellants rely on numerous authorities which they claim necessarily lead to the conclusion that the inability to cross-examine Navarette was fatal to the State’s case. These cases are distinguishable. In Evans, Spain, and Parker the testifying witness was an indictee or suspect in the principal crime for which the defendant was on trial. Thus there was obviously incentive for the witness to testify against the defendant to protect his own self interest. In Randle v. State, 565 S.W.2d 927, 931 (Tex.Crim.App.1978) the felony charges pending against the witness were unrelated to the murder for which the defendant was on trial. But in that case, the district attorney had jurisdiction over both eases. Coincidently, the witness’s bond was reduced from $50,000 to $10,000 on the very day he testified against the defendant. These two facts constituted sufficient evidence so that the defendant should have been able to explore the possibility of undue pressure before the jury. In Simmons the Court of Criminal Appeals found the trial court erred in not allowing the defendant to develop a bill of exception showing the possibility of special treatment of the witness by the prosecutor’s office.

None of these extenuating* circumstances exist in our case. The trial court permitted the appellants to fully develop a bill of exception in which Navarette was questioned extensively about the possibility of special treatment. The witness denied having been promised anything and, in fact, stated that he was not even sure what charges were pending against him. The district attorney took the stand and testified that his office did not have jurisdiction over the witness’ misdemeanor charges and that the district attorney’s office had not cooperated, nor even communicated with the county attorney’s office in any way as to the charges pending against Navarette in county court. While the trial court could have allowed the appellant to show the jury what was developed on the bill of exception, we can find no abuse of discretion in refusing to do so under the circumstances.

Appellant Victor next argues that the trial court erred in refusing to admit a prior statement made to the police made by co-indictee, Urbano Flores. We disagree. Upon arrest, Flores gave a statement to the district attorney’s office. When called by the appellants to testify, Flores claimed his fifth amendment privilege. The appellants offered Flores’ prior statement and the trial court properly refused to admit it.

The affidavit here was hearsay and inadmissible. An exception to the general rule of exclusion of such declarations lies where (1) the defendant admits his guilt, (2) the State’s case is based entirely upon circumstantial evidence, (3) the guilt of the defendant on the trial is inconsistent with the guilt of the declarant, and (4) independent evidence shows that the declarant had the capability to commit the act. Thompson v. State, 480 S.W.2d 624 (Tex.Crim.App.1972). In the instant case, the statement fails to satisfy the requirements listed above.

In a related ground of error, Guadalupe suggests that the State pressured Flores into claiming his fifth amendment right and that such actions amounted to prosecutorial misconduct. This contention is without merit. Article 2.01 of the Code of Criminal Procedure specifically instructs that prosecuting attorneys are not to suppress any facts that might establish the innocence of the accused; however, this article presumes some type of action on behalf of the attorney to suppress those facts. See Ex parte Lewis, 587 S.W.2d 697 (Tex.Crim.App.1979). In the instant case, Flores’ attorney testified that he decided it would be in his client’s best interest not to testify since the charges against Flores had not been dismissed at the time he was called to testify. The State’s attorney also indicated that no decision had been made to dismiss the charges in the event that any facts might come out during the trial of his co-indictees which would incriminate him. Finally, there is no indication of the materiality of the evidence, and without such the claim of misconduct is not supported. See Ex parte Lewis at 702 (on state’s motion for rehearing). This ground of error is overruled.

Because we have found no reversible error as to either appellant, the judgment of the trial court is affirmed.


author: LEVY, Justice.

text:
    County Judge Jon LINDSAY and the Texas Alcoholic Beverage Commission, Appellants, v. Dorothy K. STERLING d/b/a/ “Kay’s Mink Garter”, Appellee.
    No. 01-83-00854-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 1, 1984.
    Opinion on Rehearing Dec. 31, 1984.

      David H. Melasky, Houston, for appellants.
    Marshall A. Shelsy, Percely, Shelsy & Associates, Houston, for appellee.
    Before DOYLE, DUGGAN and LEVY, JJ.
   ON MOTION FOR REHEARING

LEVY, Justice.

Upon appellee’s motion for rehearing and in consideration of the supplemental transcript now on file, demonstrating appellee’s compliance with section 16(e) of the Administrative Procedure Act, we withdraw our prior opinion in this cause and substitute the following:

This appeal is from an order of the District Court reversing a decision by the County Judge which denied the application of Dorothy K. Sterling, appellee, for renewal of her wine and beer license.

Pursuant to Sections 61.31 and 61.32 of the Texas Alcoholic Beverage Code (Vernon 1978), a hearing was held before Harris County Judge Jon Lindsay to consider appellee’s application for renewal of her “Wine and Beer Retailer’s Permit” and “Retail Dealer’s On-Premise Late Hours License”.

After hearing testimony from appellee, an agent of the Texas Alcoholic Beverage Commission, and area residents, Judge Lindsay denied appellee’s application and made these findings:

1. Applicant will conduct her business in a manner that is likely to result in jeopardy to the general welfare, health, peace, morals, safety and sense of decency of the people;
2. Applicant will conduct her business in a manner contrary to law and in a manner conducive to a violation of the law;
3. Applicant will conduct her business in a place, building, or premises which was operated, during the six months immediately preceding the filing of this application, in a manner which was contrary to the Alcoholic Beverage Code;
4. The applicant has violated or caused to be violated a provision of the Texas Alcoholic Beverage Code or a rule or regulation of the Texas Alcoholic Beverage Commission, for which a suspension was not imposed, during the 12 month period immediately preceding the filing of her application.

Section 11.67, T.A.B.C. (Vernon Supp. 1981), provides that an appeal from an order of the Commission or Administrator refusing, cancelling, or suspending a permit or license may be taken to the district court of the county in which the applicant or licensee resides. Pursuant to Section 11.67, appellant appealed the decision to the 189th District Court of Harris County, after filing a motion for rehearing before the County Judge, which was denied.

In her original petition filed with the District Court, appellee asked, inter alia, that the decision of the County Judge be reversed, that her application be granted, and that the County Judge transmit the original record of such proceedings to the District Court for its consideration. Rather than considering the record before the County Judge, the District Judge allowed both sides to present evidence — in essence, a trial de novo — and the Court found after considering same that there had not been substantial evidence before the County Judge to support the denial of the appel-lee’s renewal application. He decreed that the renewal application be granted.

County Judge Jon Lindsay, who had joined the suit as an intervenor, subsequently requested that the District Court file findings of fact and conclusions of law. These were filed as follows:

A. Findings of Fact.
1. The only objectors to the operation of the applicant were the married couple who live on the immediately adjacent land.
2. Within the last year, two employees of the applicant were each convicted of a misdemeanor.
3. The misdemeanors were different from each other, and each of those employees was promptly terminated.
4. There was no pattern of the applicant or third-parties on its premises violating the applicable regulatory or general criminal statutes.
5. The operation of the applicant did not have a deleterious effect on the community’s moral or physical well being.
6. The evidence in opposition to the applicant was insubstantial.
B. Conclusion of Law. The administrative determination by the County Judge was not supported by substantial evidence.

Appellants have appealed the District Court’s order to this Court, bringing two points of error for our consideration.

Appellants allege, in their first point of error, that the trial court erred as a matter of law in holding that the administrative determination made by Judge Jon Lindsay was not supported by substantial evidence. In their second point, they assert error in the trial court’s failure to grant appellants’ motion for an instructed verdict after ap-pellee had rested.

Under the “substantial evidence” rule, which is the standard of review for most administrative agencies’ orders, the issue to be decided, if all jurisdictional prerequisites are satisfied, is the reasonableness of the County Judge’s order. This is a question of law and an appellate court cannot render its decision based upon facts found by a trial court, because the legal test of the reasonableness of an order of the County Judge, acting in this matter as an administrative agency or commission, is whether it is reasonably supported by substantial evidence and not whether it is supported by a preponderance of the evidence. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex.1966). The Court in City of San Antonio v. Texas Water Commission, supra, also emphasized that it is the Commission’s fact finding that is before the trial and appellate courts; thus, a trial of fact issues by a judge or jury is avoided. Id. at 756.

Where the substantial evidence rule is applied in reviewing administrative actions, the action of the administrative body is presumed to be valid, City of San Antonio v. Flores, 619 S.W.2d 601 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.); City of San Antonio v. Texas Water Commission, supra. The party seeking to set aside the administrative order has the burden of proving that the order is not reasonably supported by substantial evidence. City of San Antonio v. Flores, supra at 602; DeLeon v. Texas Employment Commission, 529 S.W.2d 268, 271 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n.r.e.). The test in determining whether an administrative decision finds reasonable support in substantial evidence is "... whether the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action.” Hardy Street Investors v. Texas Water Commission, 536 S.W.2d 85, 87 (Tex.Civ.App.-Waco 1976, writ ref’d n.r.e.); United Savings Association of Texas v. Vandygriff 594 S.W.2d 163 (Tex.Civ.App.-Austin 1980, writ ref’d n.r.e.).

On January 1, 1976, the Administrative Procedure and Texas Register Act, Article 6252-13a (Vernon 1976), referred to herein as the APA, became effective and, with a few stated exceptions, applies generally to administrative agencies of the State. Imperial American Resources Fund v. Railroad Commission of Texas, 557 S.W.2d 280 (Tex.1977).

Prior to the enactment of the APA, all of the case law specifically held that the reviewing court must look at the evidence presented in the District Court, not the evidence before the County Judge, to determine whether there was substantial evidence to support the County Judge’s order. See, e.g., Elliott v. Dawson, 473 S.W.2d 668 (Tex.Civ.App.-Houston [1st Dist.] 1971, no writ); In re Simonton Gin, Inc., 616 S.W.2d 274 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ); City of San Antonio v. Flores, 619 S.W.2d 601 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.).

The Texas Supreme Court in Imperial American Resources Fund, supra, stated that judicial review of a Commission’s decision is now based on the record made before the administrative agency, except for procedural irregularities mentioned in Section 19(d)(3) of the APA. The Court then discussed the history of review of substantial evidence cases involving the Railroad Commission:

Prior to the effective date of the Administrative Procedure Act (January 1, 1976), judicial review of a Railroad Commission conservation order was by trial in the district court upon a new record of evidence developed in the court without regard to the evidence heard by the Commission. The Commission’s order was tested by the substantiality of the evidence adduced in the district court trial. The applicable substantial evidence rule was stated in Trapp v. Shell Oil Company, 145 Tex. 323, 198 S.W.2d 424 (1946), and refined in Hawkins v. Texas Company, 146 Tex. 511, 209 S.W.2d 338 (1948).

The inherent problems with this method of review and how the change has helped resolve some of the problems were then described:

This type of substantial evidence review of a newly developed record, which often was different from the evidence heard by the Commission, came under effective criticism. The Legislature first limited judicial review to the record made before an administrator in the Savings and Loan Act of 1963, Article 852a, Sec. 11.12(5)(b). The record under that Act is tested by the substantial evidence rule if an order of the Commissioner is contested. Lewis v. Jacksonville Building and Loan Ass’n, 540 S.W.2d 307 (Tex.1976); Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966). Through enactment of the Administrative Procedure Act as to other agencies, the Legislature has made a far-reaching change in limiting judicial review under the substantial evidence rule to the records made before the administrative agencies. The result is that the agencies and the courts now consider the same evidence. Judicial review under the essential standards of the substantial evidence rule has been preserved, but the courts now test the substantiality of the evidence upon which an administrative agency made its decision. This furnishes more assurance of administrative due process and a surer means of determining whether an agency acted arbitrarily, capriciously, and without due regard to the evidence.

In Railroad Commission v. Graford Oil Corp., 557 S.W.2d 946 (Tex.1977), the Supreme Court stated:

[T]his Court’s duty in reviewing decisions on the state of the evidence is not to substitute our judgment for any particular tribunal but to insure that the initial decision was based on “substantial evidence” and that this decision has been given appropriate review. Article 6252-13a, sections 19(e)(3)(5). Therefore, under the new Administrative Procedure Act, we must test the substantiality of the evidence from the record upon which the Commission made its decision. Imperial American Resources Fund, Inc. v. Railroad Commission, 557 S.W.2d 280, 284-285 (Tex.1977); c.f. Hamilton and Jewett, “The Administrative Procedure and Texas Register Act: Contested Cases and Judicial Review,” 54 Tex.L. Rev. 285, 303-07 (1976).

In Rector v. Texas Alcoholic Beverage Commission, 599 S.W.2d 800 (Tex.1980), the Supreme Court confronted the problem of an applicant being denied a beer and wine license. The petitioner’s arguments were premised upon a claim that he was denied due process because of the manner in which the County Judge conducted the administrative hearing. .The Court of Appeals did not address this contention because it found that substantial evidence was introduced in the District Court to support the denial by the County Judge. The Supreme Court, after reviewing the record of the hearing before the County Judge, concluded that the petitioner’s due process rights had been violated and reversed the judgments of the courts below. The Court remanded the cause to the County Judge — not the District Court — for a new hearing on petitioner’s application for a license. In a footnote, the Supreme Court stated that this hearing should be conducted pursuant to the provisions of the APA.

From the foregoing Supreme Court decisions, it seems clear that the reviewing court must assess under the substantial evidence rule the same evidence that the administrative agency (in this case, the County Judge) considered and upon which it based its decision, pursuant to Art. 6252-13a, the Administrative Procedure Act.

The judgment of the district court is accordingly reversed and the cause is remanded with instructions that the court compel the production before it of the full record of the proceedings had before the County Judge in this cause, reduced to writing and duly certified, for the court’s review under the substantial evidence rule, and for further proceedings not inconsistent with this opinion.

ON APPELLANT’S MOTION FOR REHEARING

Pursuant to Section 11.67 of the Texas Alcoholic Beverage Code (Vernon Supp.1981), appellee appealed the decision of the County Judge, refusing to renew her licenses, to the 189th District Court of Harris County, after filing a motion for rehearing before the County Judge. The District Court reversed and ordered renewal of ap-pellee’s licenses. On appeal, we reversed and dismissed because of a jurisdictional omission, which resulted in the appellee’s supplementing the record, thereby curing the omission. This court then granted ap-pellee’s motion for rehearing, and the original opinion of August 16, 1984, was withdrawn and the opinion on rehearing, reversing the District Court with instructions, filed on November 1,1984, was substituted.

The statutory directives of the APTRA (Administrative Procedure and Texas Register Act), article 6252-13a (Vernon 1976), require the exhaustion of all administrative remedies available within the agency before seeking judicial relief. After a party has exhausted all administrative remedies, such party may file a petition to obtain judicial review pursuant to section 19(b) of APTRA. The petition must be filed within 30 days after the decision complained of becomes final and appealable.

In the instant case, the appellee filed a motion for rehearing (required under AP-TRA section 16(c)) which was not overruled by operation of law at the time of filing a petition for review in the District Court. Premature filing of the petition for review may have been prompted by the conflict between section 16 of the APTRA and Chapter 61 of the Alcoholic Beverage Code, which provides a different timetable for an appeal from the agency’s decision. An appeal from the order of the County Judge denying an application must be filed within 30 days after the date of the order and the case must be tried within 10 days from the date the appeal is filed. Sections 61.34, 11.67, T.A.B.C. In contrast, section 16(e) of the APTRA provides that the motion for rehearing must be filed within 15 days of the rendition of the agency’s order, which is not final and appealable under section 16(c) until the date the motion for rehearing is overruled by agency action or by operation of law (which occurs when the agency has not acted on the motion within 45 days of the date of the agency’s order). Obviously, if the appellee had waited until 45 days after the order of the County Judge as required for an appeal governed by art. 6252-13a, sec. 16, the District Court would no longer have jurisdiction to entertain an appeal under sec. 11.67 of the Alcoholic Beverage Code. Confusion resulting from this conflict is certainly understandable, but we are guided by the Supreme Court’s admonition in Rector v. Texas Alcoholic Beverage Commission, 599 S.W.2d 800, 801 (Texas 1980), that the proceedings should be governed by the provisions of the APTRA.

The record in this cause does not reveal any objection by the appellants made before the district court challenging its jurisdiction based upon the absence of the County Judge’s order overruling the motion for rehearing, filed before the County Judge, or upon the non-lapse of the statutory 45 days invoking the overruling by operation of law. The first mention of this purportedly jurisdictional argument is in appellants’ response to appellee’s “Motion for Rehearing and Motion to Supplement Transcript.”

Under section 19(d)(3) of the APTRA, “the court may receive evidence of procedural irregularities to have occurred before the agency but which are not reflected in the record.” Under the facts of this case, and in view of appellants’ selective delay of their purportedly jurisdictional argument, constituting a virtual estoppel as to their present position, we consider the premature filing only as a procedural irregularity that does not affect the substantive rights of the parties.

Accordingly, the appellants’ motion for rehearing is denied.