OPINION
DOUGLAS, Judge.
Appellant was convicted of rape under the former code, Article 1183, V.A.P.C. [308]*308The jury assessed his punishment at twenty-five years.
The main contention is that the prosecution suppressed evidence. We hold that the report allegedly suppressed was not exculpatory. There must be a suppression of material evidence according to all of the cases before a case will be reversed. The alleged suppressed evidence was not admissible, material or exculpatory. The dissent would adopt a new test that a reversal may be had when suppressed material “ ‘may have had an effect on the outcome of the trial.’ ” It would omit that part of the test which requires that material evidence must be suppressed.
For a better understanding of the case, a detailed statement of facts will be given.
The prosecutrix at the time of the incident was twenty-nine years of age, lived alone and suffered from cerebral palsy and a brain defect which caused brain damage. She had been in special education classes until she dropped out after completing the ninth grade and was employed as a babysitter, housekeeper and bowling alley attendant.
At the time in question, the prosecutrix and a friend, Betty, were walking together to a Sambo’s restaurant in Odessa. While enroute the pair was approached by Iness who asked if they would like to get something to drink. After a brief conversation, the prosecutrix agreed to go with him under the mistaken assumption that he was a friend of Betty’s. The two then drove to a Pizza Hut where they ate and engaged in light conversation. Upon leaving the restaurant, appellant expressed a desire to go somewhere and just talk. The prosecutrix agreed and Iness drove west out of Odessa. She testified that after they left the Pizza Hut appellant’s disposition became vicious, and he began to drink from a whiskey bottle. Appellant pulled into an open field near an oil well and demanded that she get out of the car and sit on the hood. The prosecutrix protested but complied because she was frightened. Once on the hood of the car Iness kissed her. After threatening to kill her, he forced her to disrobe in front of the car headlights and commit oral sodomy upon him. At one point she attempted to escape but was caught by him, beaten and forced to submit to anal and sexual intercourse1 while positioned behind her, again under threats of death. Failing to achieve sexual satisfaction, he drove the prosecutrix back to Odessa and dropped her off at Betty’s apartment complex. David Eades, Betty’s boyfriend, was the only person at Betty’s apartment when the prosecu-trix knocked on the door. He described the event as follows:
“A. Well, I opened the door and shocking to see there was a woman, her mouth all bloody and nose had been, blood all over her face and mud on her arm and mud all over her black clothes she had on, she was dressed in black that night.
“Q. Okay.
“A. And then I didn’t really know what to do. Called the police.
“Q. All right.
“A. That is what I did.
“Q. Could you describe her emotional state, was she calm, easy going or not or what?
“A. No, sir. She was really disturbed.
“Q. Was she crying?
“A. Yes, sir.
“Q. Was she nervous?
“A. Yes, sir. She, just like, in other words, she was just shaking.
“Q. All right. Was she, could you state whether or not she seemed hysterical?
“A. Yes, she was.
“Q. And did she say what had happened to her?
“A. Well, she made a statement that I understood her to say she had went had coffee with somebody and they took advantage of her and raped her, all really I know.”
[309]*309David Eades testified the prosecutrix was hysterical. She gave him the name of her guardian for him to call. When he could not locate the guardian, he called the police.
When counsel for the defense asked to see the statements that the prosecutrix signed that night, the assistant district attorney informed the court that he knew of only one statement that she signed. The statement that counsel for appellant was furnished and which he introduced for his bill of exception is the complaint signed by the prosecutrix and sworn before Justice of the Peace J. A. Purifoy in Ector County.
Counsel for appellant, when asking for what Officer Hammack wrote, said he believed that the report contained exculpatory statements. There is no contention that counsel for the defense had not seen the statement before the trial.
The statement also contains the recitation, “When we left the hospital Capt. Scott asked if the attacker forced her from the rear and she advised that was correct. This girl has a mental problem and it is hard to get a message across to her. . . . She did not know where the rape had taken place but it happened in a field somewhere.. . . He forced her to get on her knees with her head on the ground. Due to what I can understand from her he forced her to commit sodomy.”
These statements in the officer’s report are not exculpatory. The very first sentence in the report recites that the prosecu-trix told the officer that she was raped from the back. The nurse’s statement to the officer that she could have meant the rectum does not rule out rape. The prose-cutrix testified that there was penetration in the vagina and in the rectum. Here the witness was a victim of cerebral palsy. She was not articulate. Her condition was such that defense counsel attacked her competency to testify outside the presence of the jury. From the report, it would appear that she told of the sodomy and the rape.
When she made the outcry to Eades, she told him that she had been raped. The report does not show any exculpatory statements.
A copy of the complaint made before Justice of the Peace Purifoy was signed by the prosecutrix. Such statement could have been used by counsel for defense to cross-examine the prosecutrix. The first statement in the complaint is:
“I would like to say that I have good reason to believe and do believe that Roy Clifton Iness did Assualt Me With The Intent to Rape.. . . ”
After reciting what happened before and after he parked, the complaint, signed by her, recites:
“He then got around behind me and entered my rectum with his penis & then finished up with his penis in my vagina & this was all done from the back.”
The complaint also contained the statement:
“I have been shown Texas Dept, of Corrections picture # 205343, Roy Clifton Iness and also a snapshot of this same person & I have identified him as being the same person who used force threats to make me submitt to his demands of Sodomy.
“I feel that the facts as contained in this affidavit present probable cause on which to base complaint & I respectfully request that a warrant be issued charging Roy Clifton Iness with the offense of assault with the attempt to commit rape a Felony offense under the criminal statutes of the State of Texas.”
This complaint or affidavit was sworn to some two or three days after the date of the commission of the offense. It was apparently typed by an officer or under his direction. It contains conclusions that appellant abducted her with intent to commit rape. It also contains statements of fact that his penis penetrated her vagina. It also contains a statement that Iness used force to make her submit to his demands for sodomy.
These statements or conclusions would show assault with intent to commit rape but it does not take out of this statement that he put his penis in her vagina. The conclusion that, after being shown the pho[310]*310tograph that she identified appellant as to the person who used “force threats to make me submitt to his demands of sodomy”, does not detract from her recitations of the facts that it was rape.
Counsel for the defense had this complaint and introduced it before the judge. He knew what it contained. He also knew that she was examined at the hospital. He introduced the hospital records with the permission of the court at the penalty stage of the trial.
There is no showing that he did not talk to the nurse who purportedly made the statement to Officer Hammack. There is no showing that he did not talk to Officer Hammack before the trial. There is no showing that he did not talk to Officer Scott who is mentioned in the report. There was more in the complaint than there was in the report which might have been beneficial to appellant.
Taking the evidence of her outcry to Eades that she had been raped and her statement to Officer Hammack that she had been raped and the statements in the complaint that she had been raped and the statements similar to those claimed to be exculpatory, there was no suppression of evidence.
The standard for determining materiality of information withheld from the defense is that of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where, as in the instant case, the material was specifically requested by the defense. United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976).
The dissent misconstrues the Brady rule as it applies to documents which are inadmissible at trial. The Supreme Court in Brady upheld the Maryland Court of Appeals’ decision to remand that case for a new trial limited to the issue of sentencing; at the same time, the Court upheld the state court’s affirmance of the finding of guilt on the ground that the exculpatory evidence was inadmissible on the issue of guilt or innocence. 373 U.S. at 90, 83 S.Ct. at 1198. The Court indicated that when the information withheld is not admissible, its possible effect on the jury’s decision is not to be considered:
“A sporting theory of justice might assume that if the suppressed confession had been used at the first trial, the judge’s ruling that it was not admissible on the issue of innocence or guilt might have been flouted by the jury just as might have been done if the court had first admitted a confession and then stricken it from the record. [Footnote omitted] But we cannot raise that trial strategy to the dignity of a constitutional right and say that the deprival of this defendant of that sporting chance through the use of a bifurcated trial (cf. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337) denies him due process or violates the Equal Protection Clause of the Fourteenth Amendment.” 373 U.S. at 90-91, 83 S.Ct. at 1198.
The arguably exculpatory material in Hammack’s report consists of three statements attributed' to the nurse who had examined the complaining witness and the officer’s conclusion as to the complainant’s story:
“_(Prosecutrix) advised that she had been raped from the back and the nurse advised that she could have meant the rectum. ... At the above time and date I talked with RN Nurse O. Pina and she advised that from the test she had taken from_she could say that in her opinion penetration was made in the rectum. . .. She advised that there was no sperm show up in the test... . From what I can understand from her he forced her to commit sodomy.” (Court’s Exhibit # 1). (Emphasis supplied).
The alleged statements of the nurse are hearsay, and as such, inadmissible. The nurse did not testify at trial, so they could not have been used in impeachment. Hammock’s conclusion as to what occurred is not accompanied by any recorded statements of the complaining witness and could not have been used to impeach her testimony at trial. The withholding of inadmissible material does not violate the Brady rule.
[311]*311The dissent indicates that the question of inadmissibility of the withheld report should be subordinated to its general usefulness to the defense counsel.
This position has been rejected as a constitutional requirement by the Supreme Court in Agars, supra:
“It has been argued that the standard should focus on the impact of the undisclosed evidence on the defendant’s ability to prepare for trial, rather than the materiality of the evidence to the issue of guilt or innocence. See Note, The Prosecutor’s Constitutional Duty to Reveal Evidence to the Defense, 74 Yale L.J. 136 (1964). Such a standard would be unacceptable for determining the materiality of what has been generally recognized as Brady material for two reasons. First, that standard would necessarily encompass incriminating evidence as well as exculpatory evidence, since knowledge of the prosecution’s entire case would always be useful in planning the defense. Second, such an approach would primarily involve an analysis of the adequacy of the notice given to the defendant by the State, and it has always been the Court’s view that the notice component of due process refers to the charge rather than the eviden-tiary support for the charge.” 427 U.S. 108 at 112, fn.20, 96 S.Ct. 2399 at 2401 fn. 20 2.
This Court will not adopt the broader “help in preparation” approach.
The dissent also relies on Means v. State, 429 S.W.2d 490 (Tex.Cr.App.1968), and especially that part which reads:
“Reversible error is also committed where the prosecutor negligently or inadvertently fails to disclose evidence which may exonerate the accused or which may be of material importance to the defense, even though not offered as testimony at the trial and even though the accused’s counsel is not diligent in his preparation for trial.” 429 S.W.2d at 494.
The evidence in question in Means, a laboratory report indicating hair found on a murder victim was neither her own nor the defendant’s, would have been admissible at trial. The two reasons given by the Court for affirming the conviction of Means apply with equal force to the instant case.
In his opinion in Means, Presiding Judge Onion stated that:
“The findings of the unidentified hairs on the body of the deceased may have been consistent with the theory advanced by the defense that someone could have [312]*312possibly entered the hotel room after appellant left, but such findings do not undeniably support the defensive theory in view of the undisputed fact of the deceased’s avocation and the fact that the deceased did not meet the appellant until 6:30 p.m. on the day in question, approximately 2 hours prior to the estimated time of her death. Further, such findings were not inconsistent with prosecution’s theory of the case. 429 S.W.2d at 495 (Emphasis supplied).
In the instant case, Nurse Pina’s statement that “[the prosecutrix] could have meant the rectum,” and her opinion that penetration was made in the rectum, and Officer Hammack’s impression that the prosecutrix had been sodomized all corroborate the prosecutrix’ testimony at trial:
“Q. Can you tell us whether or not he tried to put his sexual organ in your rectum?
“A. Yes.
“Q. And did he do that or try that for a while?
“A. About 5 minutes.
“Q. Can you tell us what ways he was trying to achieve a climax?
“A. Both ways, but he did it from behind.
“Q. Okay. Now, both ways, by that do you mean in the rectum?
“A. And in the other.”
Judge Onion’s opinion in Means found as a separate ground for affirming the conviction that “[w]e cannot conclude that appellant has shown he did not know the results of this test prior to the receipt of the jury verdict.” 429 S.W.2d at 495.
The record, in the present case, shows on its face that appellant was aware of the pertinent information in Hammack’s report. The negative results of the sperm check were in the examination report whose introduction appellant successfully objected to at the guilt phase of the trial, and which he himself introduced at the punishment phase, was State’s Exhibit # 4, Defendant’s Exhibit # 3.
Appellant’s closing argument makes it clear he was aware that the prosecutrix had been examined by Nurse Pina and that the results of the examination might not have conclusively shown evidence of the occurrence of a rape:
“And the nurse examines her and after all this evening, what comes of it? They give her Valium capsules.... Don’t you know that a lady who goes to the Emergency Room and there claims to them and has any evidence at all and claims that some man has inserted his penis into her rectum and claims that thereafter has inserted it in her vagina, don’t you know that those doctors and that nurse and those people are going to give her the necessary treatment to cleanse her vagina? . . . There was nothing done. Now, the burden of proof is on the State. The burden to bring the witnesses. I assume that those doctors did their job, that the nurse did. . . . Don’t you know that if there is sexual intercourse there is invariably evidence of recent sexual intercourse? Two doctors and a nurse and the reason she was taken there was to see if there was anything on earth in the way of evidence. Now, what do we find? Was there anything about her condition, anything the doctors found that said that she needed to be kept in the hospital so much as overnight, so much as for 5 minutes after the examination? No. Those medical people turned her over to these ixiople.”
The only statement in the Hammack report, other than Nurse Pina’s corroboration of a portion of the prosecutrix’ testimony, which is arguably exculpatory is the conclusion of Officer Hammack that the prosecutrix had been sodomized. Appellant’s cross-examination of the prosecutrix tried to establish that sodomy was the only act committed:
“Q. All right. And the truth is he never tried, he never did have intercourse with you by putting his penis or private part in your ...
_, the truth of the matter is that while he hurt you and hit you and did all those things to you, he was the [313]*313kind of a person that screwed you in the ass, didn’t he?
“A. No.
“Q. What did he do?
“A. As I told the attorney a while ago just exactly what I told the attorney, that is exactly what happened.
“Q. All right. He never did have intercourse with you by putting his peter or penis or prick in your pussy, did he?
“MR. CADRA: Judge, I object to the language here. She does not use those terms and I believe there are proper terms for this.
“THE COURT: I will overrule your objection as long as she, I think first you will have to establish what you are talking about.
“Q. All right. What do you mean when you say your vagina, what are you talking about?
“A. Entered the front.
“Q. What?
“A. Entered the front, but he did it behind both times, as I said before.
“Q. He did it behind both times, didn’t he?
“A. Yes, Yes.
“Q. Which means, and you are telling the jury that that is your rectum, that is what happened, isn’t it?
“A. No.
“Q. Tell us what did happen.
“A. Just like I told the attorney, the other attorney a while ago, just exactly what happened. He had me to kneel down on my knees, he demanded me to kneel down upon my knees.
“Q. Yes?
“A. And he told me if I didn’t do it he would hit me again or he would kill me. He kept threatening me and that is exactly what happened, just like I told the attorney, the other attorney a while ago.
“Q. And he put in behind [sic], meaning your rectum, didn’t he?
“A. And the other too.
“Q. He never did put it in your vagina or in the front, did he? You have never claimed that, have you?
“MR. CADRA: Judge, he is misstating her testimony to her. She just claimed that.
“THE COURT: Let her answer the question. Answer the question, Ma’am.
“A. Would you repeat your question?
“Q. I say he made you, he forced you and he scared you and he frightened you and he put it in as you told us behind.
“A. And in front, it can be done both ways, from the, from the behind.
“Q. All right.
“A. And that is what I told the other attorney and that is the truth.
“Q. You now say that after he had put it in behind he put it in your vagina, is that what you are-telling the jury under oath?
“A. I’m just telling what had actually happened, just like I told the other attorney.”
Appellant thoroughly aired the issue of whether vaginal penetration had been made. The inadmissible conclusion of Officer Hammack that the prosecutrix had been sodomized could have added nothing to appellant’s case. The jury was entitled to find from the testimony that a rape had occurred, and it did so find. The report of what the nurse said contained no more than what defense counsel already had. The report was not admissible, it was not material and it contained no exculpatory evidence. This Court will not adopt a sporting theory of justice as condemned by the Supreme Court of the United States in the Brady case, supra. We will follow the cases of this Court and the Supreme Court of the United States and require that there must be material evidence suppressed to require a reversal instead of following some theory that defense counsel might think would be helpful to him even though what has been suppressed is not material, not admissible [314]*314and would not likely change the result of the case.
Next, appellant argues that the court erred in failing to grant a mistrial when the prosecutor remarked: “We have no more witnesses and with the exception of the medical records which were not admitted, we will rest our case in chief.”
After the statement was made the court sustained appellant’s objection and properly admonished the jury. This was sufficient to render the error harmless.
Complaint is made of the trial court’s decision to allow the jury to rehear the testimony of the prosecutrix regarding actual penetration. During deliberations the jury sent out a note asking to hear the testimony over. The court properly instructed them that they must certify their disagreement and request only that part of a witness’ testimony which was in dispute. The jury then sent out the following note:
“At the beginning of where Mrs. _(the prosecutrix) was being questioned by the D.A. about actual penetration. We are in disagreement as to her answers concerning this matter." (Emphasis supplied).
The trial judge determined that the jury was in disagreement regarding the prosecu-trix’ testimony on penetration and allowed the jury to hear the direct and cross -examination of her which related only to penetration. Appellant contends the testimony reheard should have been limited to the direct examination by the State, and so objected at trial.
It is well settled that the trial court may allow a disputed portion of a witness’ testimony to be read to the jury and refuse additional testimony. Article 36.28, V.A.C. C.P.; Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973); Johnson v. State, 494 S.W.2d 765 (Tex.Cr.App.1969).
When the jury asks that certain disputed testimony be re-read, the court must first determine if the request is proper under Article 36.28, supra. If it is proper, the court must then interpret the communication; decide, in its discretion, what sections of the testimony will best answer the query, and limit the testimony accordingly. See Bonsai v. State, 502 S.W.2d 813 (Tex.Cr.App.1973); Swidell v. State, 491 S.W.2d 400 (Tex.Cr.App.1973); Duncan v. State, 454 S.W.2d 736 (Tex.Cr.App.1970); Alvear v. State, 341 S.W.2d 426 (Tex.Cr.App.1960).
In the instant ease the jury’s request stated that they were in disagreement concerning the penetration testimony of the witness. Although the note mentioned the direct examination by the State, the court did not abuse its discretion in interpreting the sentence “we are in disagreement concerning this matter” as an expression of disagreement concerning the prosecutrix’ entire testimony relating to penetration. This was later borne out by another request to have a second reading of the appellant’s cross-examination of her.
Appellant relies on Pugh v. State, 376 S.W.2d 760 (Tex.Cr.App.1964). In Pugh, however, the jury merely requested the date and time of the incident. After these were provided, the court on its own motion, ordered all of the testimony of the arresting officer to be read, none of which related to the time and date of the incident. This was held to be an abuse of discretion. Here, the court properly limited the testimony to the portion which related to penetration and, therefore, did not abuse its discretion.
Complaint is made that error was committed when the court allowed a second reading of appellant’s cross examination of the prosecutrix.
The record does not reflect, however, that this portion was re read. After the note reached the judge the following exchange occurred:
“THE COURT: I think after I read to them I’m going to let them have about 15 minutes and I’m going to send them home.
“MR. CADRA: You can’t send them home. (Discussion held off the record.)
“THE COURT: Get the jury in. (The following is in the presence and hearing of the jury.)
[315]*315“THE COURT: I understand they said they were just about through maybe. Are you just about through?
“FOREMAN: We would like to take another vote.
“THE COURT: All right. That will be fine. (The jury continued deliberations.)
“THE COURT: Get the jury. (The jury is returned to the courtroom and the following is in their presence and hearing.)
“THE COURT: Ladies and gentlemen of the jury, have you reached a verdict?
“JURY FOREMAN: We have.”
The record being silent, nothing is presented for review.
Next, appellant contends the court erred in failing to grant a mistrial after a conversation between the court and a juror regarding the sudden illness of the juror’s mother. He relies on Article 40.03(7), V.A. C.C.P., which states:
“New trials, in cases of felony, shall be granted the defendant for the following causes, and for no other: * *
“(7) Where the jury, after having retired to deliberate upon a case, has received other evidence; or where a juror has conversed with any person in regard to the ease; ...” (Emphasis added)
The discussion complained of did not relate to “the case.” We have interpreted Article 36.22,3 V.A.C.C.P., as requiring the defendant to show harm or injury in all cases where a juror speaks to anyone during the court of the trial. Wilkes v. State, 566 S.W.2d 299 (Tex.Cr.App.1978); Young v. State, 547 S.W.2d 23 (Tex.Cr.App.1977); Maldonado v. State, 507 S.W.2d 206 (Tex. Cr.App.1974). The conversation in question did not relate to the case nor was there any harm shown.
Finally, appellant claims error occurred when the trial judge refused to charge the jury at the penalty stage 'as to the punishment range for rape, V.T.C.A., Penal Code, Section 21.02, as well as aggravated rape, V.T.C.A., Penal Code, Section 21.03, which was the only instruction given. Appellant timely objected to this at trial.
Appellant here, although tried for an offense under the former penal code, elected to be sentenced under the present penal code, pursuant to Acts 1973, Chapter 399, Section 6(c), V.T.C.A., Penal Code, Savings Provision.
In Casey v. State, 527 S.W.2d 882 (Tex. Cr.App.1975), the defendant was convicted of robbery by firearms under the former code but elected to be punished under the present one. He complained on appeal that the court refused to instruct the jury on the punishment range for robbery as well as aggravated robbery. The Court stated:
“From the proof adduced during the guilt and punishment stages of the trial, the judge determines the applicable section, or sections (with appropriate instructions if the proof requires giving the jury a choice) of the new code and so charges the jury. By his election to be punished under the new code, a defendant agrees to such a method. The question then is whether the proof substantiates the judge’s determination. Ambers v. State, 527 S.W.2d 855 (Tex.Cr.App.1975). See Wright v. State, 527 S.W.2d 859 (Tex.Cr.App.1975), and Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973).”
In the case at bar, the prosecutrix repeatedly testified to threats of death made by appellant to secure her submission. There was no suggestion that the offense would have been only rape under V.T.C.A., Penal Code, Section 21.02. The proof was sufficient to justify the trial judge’s submission of the range of punishment for aggravated rape.
The appellant has shown no harm or reversible error. The judgment is affirmed.