Lackey v. State
Opinions
OPINION
McCORMICK, Judge.
Appellant, after being found competent to stand trial in an Article 46.02, Section 4, V.A.C.C.P., jury competency hearing, was convicted of capital murder. Punishment was assessed at death. The sufficiency of the evidence is not challenged.
Diane Kumph was abducted from her Lubbock apartment shortly before dawn on July 81,1977. Later that day, her partially nude body was discovered beside a dirt road outside of Lubbock, near appellant’s house. It appeared Kumph had been raped. She had been severely beaten. Her neck, face, arms, chest, back and legs were covered with bruises. Her throat had been slashed. This caused her death.
A policeman who responded to a neighbor’s report testified that it appeared that the front door of Kumph’s apartment had been kicked open. There were indications that a violent struggle had occurred in her apartment.
A fingerprint expert testified that a latent fingerprint discovered on a cigarette package found in the victim’s bed belonged to appellant. The brand was the same brand as a pack found on appellant at the time of his arrest. Blood found on appellant’s boots matched Kumph’s blood type. Secretor analysis showed that the individual whose semen was found in Kumph was a secretor and had the same type 0 blood as did appellant. An expert testified that hairs found on Kumph’s body were similar to appellant’s and marks found on the door of Kumph’s apartment were very similar to the heel print of appellant’s boot. A person living in the adjoining apartment testified that he was awakened in the early morning, went outside, and saw a man matching appellant’s physical description driving away in a white pickup. A woman was slumped over in the seat. The truck was missing a hubcap from the right rear wheel. Appellant, at the time of the murder, had use of a white pickup that was missing a hubcap from the right rear wheel. Appellant was identified by an acquaintance as [440]*440having been in this truck, driving in Lubbock at approximately 5:00 a.m. on the morning of Kumph’s abduction.
Another resident of the adjoining apartment testified that she was awakened that morning by loud banging, and screams of “help me” and “get off me” coming from Kumph’s apartment.
Appellant’s roommate, Carrol Johnson, testified that she had been at work all night the night of the murder. When she returned home that morning, about 7:30 a.m., appellant was not home, but there was fresh blood all about the house. Shortly after her return, appellant phoned Johnson and said he was doing some laundry at a laundromat. He arrived at the house a half hour later with a bedspread and sheets he had washed. He burned a throw rug. Later that day, as Johnson and appellant were discussing radio reports of the murder of Kumph and the search for a suspect, appellant admitted to Johnson: “Baby, I’ve got to tell you something — I’m the one they’re looking for.”
More incriminating evidence was seized in a search of appellant’s house and the white truck. Leaves found on Kumph’s face were very similar to leaves found in the truck, according to expert testimony. Hair taken from the truck was very similar to Kumph’s, according to the expert. Sweepings from appellant’s apartment revealed hair that was very similar to Kumph’s, according to more expert testimony. Blood found throughout appellant’s home matched Kumph’s blood type, including that found on a blood soaked mattress. Blood was also found on the porch and on the exterior of appellant’s house. That blood matched Kumph’s type. Blood was found on a knife located in the house. Blood found on the pickup matched the deceased’s type. The case was submitted to the jury on a circumstantial evidence charge.
Appellant contends that the trial court erred in refusing to appoint a psychiatrist of appellant’s choice to examine appellant. Appellant was indigent. On September 29, 1977, a pre-trial motion was filed by appellant requesting that one of three named psychiatrists be appointed to examine appellant. The motion went on to state, “Failing this, Defendant prays for commitment to a reputable mental hospital for complete psychiatric examination.” Appellant, at that time, was confined in the Lubbock County jail. Two of the experts he had requested practiced in Dallas and one practiced in Los Angeles. The trial court granted the alternative portion of appellant’s motion by ordering appellant be taken to the Big Spring State Hospital for evaluation. The appellant made no objection to this procedure when it was ordered. Since appellant’s motion was granted, nothing is presented for review. Regardless, it is not error to refuse a defendant’s request for examination by a particular psychiatrist and to substitute an alternative expert. In Payne v. Thompson, 622 F.2d 254 (6th Cir. 1980), cert. denied 449 U.S. 1063, 100 S.Ct. 788, 66 L.Ed.2d 607 (1981), the court said:
“Nor can we find a federal constitutional violation in the state trial court’s refusal to provide expert witness and psychiatric examination by witness of his (defendant’s) own choosing. See U. S. ex rel Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953).” 622 F.2d at 255.
See Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir. 1978), cert. denied 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978). In that case, the Fourth Circuit stated: “... [W]e are of the opinion, on authority, that there exists no constitutional right to the appointment of a private psychiatrist of the defendant’s own choosing at public expense.” 572 F.2d at 445. The ground is overruled.
Appellant also complains that the court erred in refusing him more than $500 in funds for investigation and expert testimony pursuant to Article 26.05, V.A.C.C.P. Article 26.05, supra, provides, in pertinent part:
“Sec. 1. A counsel appointed to defend a person accused of a felony or a misdemeanor punishable by imprisonment, or to represent an indigent in a habeas corpus hearing, shall be paid from the [441]*441general fund of the county in which the prosecution was instituted or habeas corpus hearing held, according to the following schedule:
U * * *
“(d) For expenses incurred for purposes of investigation and expert testimony, a reasonable fee to be set by the court but in no event to exceed $500; ..."
On December 2,1977, appellant requested $500 for investigative fees for expenses apparently not yet incurred. The trial court granted the motion. On February 6, 1978, after jury selection had begun, appellant filed a new motion contending that the defense had incurred or had agreed to incur expenses of more than $500 but did not specify the amount. This motion requested extra funds for
“... various experts in the fields of medicine, psychiatry, and psychology, concerning their conducting examinations and tests on issues of competency, sanity and punishment. Defendant has also contacted an analytical chemist to examine the State’s blood and hair exhibits and to conduct independent analyses of the exhibits.”
As noted above, psychiatric and psychological tests had been performed on appellant at appellant’s request. The expenses for these exams were apparently paid directly by the court and were not charged to appellant’s $500. In effect, therefore, appellant had the use of more than $500 in investigative expenses.
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OPINION
McCORMICK, Judge.
Appellant, after being found competent to stand trial in an Article 46.02, Section 4, V.A.C.C.P., jury competency hearing, was convicted of capital murder. Punishment was assessed at death. The sufficiency of the evidence is not challenged.
Diane Kumph was abducted from her Lubbock apartment shortly before dawn on July 81,1977. Later that day, her partially nude body was discovered beside a dirt road outside of Lubbock, near appellant’s house. It appeared Kumph had been raped. She had been severely beaten. Her neck, face, arms, chest, back and legs were covered with bruises. Her throat had been slashed. This caused her death.
A policeman who responded to a neighbor’s report testified that it appeared that the front door of Kumph’s apartment had been kicked open. There were indications that a violent struggle had occurred in her apartment.
A fingerprint expert testified that a latent fingerprint discovered on a cigarette package found in the victim’s bed belonged to appellant. The brand was the same brand as a pack found on appellant at the time of his arrest. Blood found on appellant’s boots matched Kumph’s blood type. Secretor analysis showed that the individual whose semen was found in Kumph was a secretor and had the same type 0 blood as did appellant. An expert testified that hairs found on Kumph’s body were similar to appellant’s and marks found on the door of Kumph’s apartment were very similar to the heel print of appellant’s boot. A person living in the adjoining apartment testified that he was awakened in the early morning, went outside, and saw a man matching appellant’s physical description driving away in a white pickup. A woman was slumped over in the seat. The truck was missing a hubcap from the right rear wheel. Appellant, at the time of the murder, had use of a white pickup that was missing a hubcap from the right rear wheel. Appellant was identified by an acquaintance as [440]*440having been in this truck, driving in Lubbock at approximately 5:00 a.m. on the morning of Kumph’s abduction.
Another resident of the adjoining apartment testified that she was awakened that morning by loud banging, and screams of “help me” and “get off me” coming from Kumph’s apartment.
Appellant’s roommate, Carrol Johnson, testified that she had been at work all night the night of the murder. When she returned home that morning, about 7:30 a.m., appellant was not home, but there was fresh blood all about the house. Shortly after her return, appellant phoned Johnson and said he was doing some laundry at a laundromat. He arrived at the house a half hour later with a bedspread and sheets he had washed. He burned a throw rug. Later that day, as Johnson and appellant were discussing radio reports of the murder of Kumph and the search for a suspect, appellant admitted to Johnson: “Baby, I’ve got to tell you something — I’m the one they’re looking for.”
More incriminating evidence was seized in a search of appellant’s house and the white truck. Leaves found on Kumph’s face were very similar to leaves found in the truck, according to expert testimony. Hair taken from the truck was very similar to Kumph’s, according to the expert. Sweepings from appellant’s apartment revealed hair that was very similar to Kumph’s, according to more expert testimony. Blood found throughout appellant’s home matched Kumph’s blood type, including that found on a blood soaked mattress. Blood was also found on the porch and on the exterior of appellant’s house. That blood matched Kumph’s type. Blood was found on a knife located in the house. Blood found on the pickup matched the deceased’s type. The case was submitted to the jury on a circumstantial evidence charge.
Appellant contends that the trial court erred in refusing to appoint a psychiatrist of appellant’s choice to examine appellant. Appellant was indigent. On September 29, 1977, a pre-trial motion was filed by appellant requesting that one of three named psychiatrists be appointed to examine appellant. The motion went on to state, “Failing this, Defendant prays for commitment to a reputable mental hospital for complete psychiatric examination.” Appellant, at that time, was confined in the Lubbock County jail. Two of the experts he had requested practiced in Dallas and one practiced in Los Angeles. The trial court granted the alternative portion of appellant’s motion by ordering appellant be taken to the Big Spring State Hospital for evaluation. The appellant made no objection to this procedure when it was ordered. Since appellant’s motion was granted, nothing is presented for review. Regardless, it is not error to refuse a defendant’s request for examination by a particular psychiatrist and to substitute an alternative expert. In Payne v. Thompson, 622 F.2d 254 (6th Cir. 1980), cert. denied 449 U.S. 1063, 100 S.Ct. 788, 66 L.Ed.2d 607 (1981), the court said:
“Nor can we find a federal constitutional violation in the state trial court’s refusal to provide expert witness and psychiatric examination by witness of his (defendant’s) own choosing. See U. S. ex rel Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953).” 622 F.2d at 255.
See Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir. 1978), cert. denied 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978). In that case, the Fourth Circuit stated: “... [W]e are of the opinion, on authority, that there exists no constitutional right to the appointment of a private psychiatrist of the defendant’s own choosing at public expense.” 572 F.2d at 445. The ground is overruled.
Appellant also complains that the court erred in refusing him more than $500 in funds for investigation and expert testimony pursuant to Article 26.05, V.A.C.C.P. Article 26.05, supra, provides, in pertinent part:
“Sec. 1. A counsel appointed to defend a person accused of a felony or a misdemeanor punishable by imprisonment, or to represent an indigent in a habeas corpus hearing, shall be paid from the [441]*441general fund of the county in which the prosecution was instituted or habeas corpus hearing held, according to the following schedule:
U * * *
“(d) For expenses incurred for purposes of investigation and expert testimony, a reasonable fee to be set by the court but in no event to exceed $500; ..."
On December 2,1977, appellant requested $500 for investigative fees for expenses apparently not yet incurred. The trial court granted the motion. On February 6, 1978, after jury selection had begun, appellant filed a new motion contending that the defense had incurred or had agreed to incur expenses of more than $500 but did not specify the amount. This motion requested extra funds for
“... various experts in the fields of medicine, psychiatry, and psychology, concerning their conducting examinations and tests on issues of competency, sanity and punishment. Defendant has also contacted an analytical chemist to examine the State’s blood and hair exhibits and to conduct independent analyses of the exhibits.”
As noted above, psychiatric and psychological tests had been performed on appellant at appellant’s request. The expenses for these exams were apparently paid directly by the court and were not charged to appellant’s $500. In effect, therefore, appellant had the use of more than $500 in investigative expenses. Appellant, in his February 6, 1978 motion, requested $1000 in additional money. He failed to inform the trial court how the original $500 had been used.
On June 1, 1978, appellant filed a formal bill of exception concerning the denial of the additional funds. This included a sworn statement from one of appellant’s attorneys. The statement said that appellant’s attorneys had wished to employ a chemist but were unable to do so because they had expended the $500 that had been allocated by the court. It is apparent from the bill that the February 6, 1978 request was for future use and not for expenses already incurred.
Appellant now complains that the denial of the additional funds requested on February 6, 1978 was reversible error. Since the expenses had not yet been incurred, there certainly was no abuse of the trial court’s discretion by denying the motion at that time. Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977). In Wallace v. State, 618 S.W.2d 67 (Tex.Cr.App.1981), this Court said: “Under Art. 26.05, V.A.C. C.P., counsel is entitled to reimbursement of investigation expenses only after they are incurred and even then reimbursement is discretionary with the Court.”
Here, the trial court had approved and allocated $500 for experts and investigation to be used as appellant desired. Appellant made no showing why that $500 granted earlier was not sufficient or that the funds were for different types of experts than those previously used. Surely a defendant cannot expect to obtain expert opinion after expert opinion after expert opinion at public expense in the mere hope of stumbling across an opinion that meets his approval.
While in certain cases there may be a constitutional right for an indigent defendant to have funds for expert investigation or testimony, this right does not give a defendant carte blanche. Here, unlike cases cited by appellant, a substantial sum was allocated and used by the defendant for expert testimony. See United States v. Crim, 527 F.2d 289 (10th Cir. 1975), cert. denied 425 U.S. 905, 96 S.Ct. 1497, 47 L.Ed.2d 755 (1976). In that case, the Tenth Circuit rejected a defendant’s claim that the $300 allocated by the trial court for investigation was inadequate. See also, United States v. Erb, 596 F.2d 412 (10th Cir. 1979), cert. denied 444 U.S. 848, 100 S.Ct. 97, 62 L.Ed.2d 63 (1979). The Arizona Supreme Court, quoting the Indiana Supreme Court, has said: “... when the court is allocating state funds for the defense of a defendant it is rational for the court to use discretion in granting or denying the defendant’s requests. Within the primary goal of the judicial process, which is due [442]*442process of law for each defendant, the court may determine which expenses are probably needless, wasteful or extravagant.” State v. Greenwalt, 624 P.2d 828 (Ariz.1981), at 834. The Arizona court there upheld the refusal to allow certain expenditures for investigation.
Even if the trial court had erred in refusing the additional funds, no harm has been shown. A contention similar to that now advanced by appellant was recently discussed in People v. Browning, 106 Mich.App. 516, 308 N.W.2d 264 (1981). There, a defendant had been convicted of murder and appealed the trial court’s refusal to appoint an investigator, chemist and pathologist at public expense. The Michigan court said: “Absent some showing that the test results reached by the prosecutor’s expert witnesses were in error or that the testing procedures were inadequate, the trial judge did not abuse her discretion in denying defendant’s request for the appointment of experts to conduct similar tests.” 308 N.W.2d at 269. See also, State v. Parton, 303 N.C. 55, 277 S.E.2d 410 (1981). Likewise, in Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977), cert. denied 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 794 (1978), a capital murder defendant argued that refusal to grant more than $500 in investigation expenses was error. This Court, however, held that absent a showing of harm, refusal of investigative expenses would not require reversal.
We would also note that appellant’s motion which was denied was not timely since jury selection had already begun. See United States v. Williams, 616 F.2d 759 (5th Cir. 1980), cert. denied 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d 72 (1981). Appellant’s ground is without merit.
Appellant, in his next ground of error, says, “The trial court committed reversible error by allowing Carrol Johnson to testify against appellant.” Appellant contends that the court erred in allowing Johnson to testify because he alleges that she was his common-law wife.
The record reflects that Johnson was called by the State as its last witness. She testified before the jury without objection that she had lived with appellant for some four months prior to the murder. However, at the time of her testimony, she was living with another man. She said that on the night of the murder she had worked all night at the Texas Instruments plant. She testified that when she returned home that morning there was a large amount of fresh blood on the bedroom carpet and about the house. Appellant was not there but phoned and said he was doing laundry.
Johnson testified to the foregoing without objection. Appellant thereafter objected when the State inquired about the conversation between appellant and Johnson following appellant’s return to the house:
“MR. RICHARDS (Attorney for the Defendant):
—well, sir, at this point, I would object to any statement made by the testimony to Carroll Johnson on the basis that she is his wife and cannot, by law, testify against him.”
“THE COURT: Overruled.”
The State immediately elicited from Johnson that she and Lackey had lived together for four months. Johnson testified that she never considered herself married. Though on a handful of occasions she had used the name Carrol Lackey for convenience, she had never represented to friends, family or associates that she and appellant were married. Johnson never testified that she and appellant lived together as husband and wife. After the State had inquired into the relationship between Johnson and appellant, the following occurred:
“MR. GRIFFIN: (Attorney for the Prosecution)
May we approach the bench?
“THE COURT: You may.
“MR. GRIFFIN: I propose to go ahead with the other examination, Your Hon- or.
“THE COURT: Wait just a minute.
“MR. GRIFFIN: I just wanted to tell you that I intended to pursue the other examination now. There’s no further [443]*443intention to go into this matter at this time.
If you want to make a further objection, that’s the reason I—
“MR. RICHARDS: (Attorney for the Defendant)
I can’t ask for a ruling on this matter of law, but I don’t have no objections at this time, do you Phil?
“MR. BROWN: (Attorney for the Defendant)
I guess not.
“THE COURT: All right.
Please proceed.”
The State then asked about what happened when appellant returned the morning after the murder, what he did upon his return and what was said. All of this questioning came in without objection from appellant. There was no other testimony about Johnson’s relationship with appellant from any source other than from Johnson.
Appellant now contends that the court violated Article 38.11, V.A.C.C.P., in allowing Johnson to testify at all against appellant. Article 38.11, in pertinent part, says:
“Neither husband nor wife shall, in any case, testify as to communications made by one to the other while married. Neither husband nor wife shall, in any case, after the marriage relation ceases, be made witnesses as to any communication made while the marriage relation existed except in a case where one or the other is on trial for an offense and a declaration or communication made by the wife to the husband or by the husband to the wife goes to extenuate or justify the offense. The husband and wife may, in all criminal actions, be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution.. .. ”
This is a two pronged privilege. A person, though no longer married, may not testify as to confidential communications made by his spouse during the marriage. The second part of the privilege is that neither a husband nor a wife may be a witness against his spouse during the existence of the marriage whether or not the subject of the testimony is a confidential communication. This absolute disqualification dissolves upon dissolution of the marriage but the ban on testifying about communications remains.
This Court has held that Article 38.11, supra, applies to common-law marriages, Bush v. State, 159 Tex.Cr.R. 43, 261 S.W.2d 158 (1953). However, the claim of a common-law marriage will be closely scrutinized, Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978), cert. denied 440 U.S. 968, 99 S.Ct. 1520, 59 L.Ed.2d 784 (1979). There are three elements essential to a common-law marriage: (1) an agreement to become husband and wife, (2) cohabitation pursuant to that agreement, and (3) a holding-out of each other to the public as husband and wife. See Bodde v. State, supra.
When the Court in Bodde said an agreement to become husband and wife, it meant not an agreement to become husband and wife in the future but an agreement presently to become husband and wife. Bodde cited Chatman v. State, 513 S.W.2d 854 (Tex.Cr.App.1974), for the “becoming” language. Chatman cited Welch v. State, 151 Tex.Cr.R. 356, 207 S.W.2d 627 (1948), which also used the “becoming” phrase. Welch used as its authority Texas Employers Insurance Association v. Soto, 294 S.W. 639 (Tex.Civ.App. El Paso, 1927, writ dismissed). In that case, the Court of Civil Appeals said:
“To constitute the marital relation of husband and wife at common law . . . there must be a mutual assent or agreement, express or implied, between the man and woman to become then and thenceforth husband and wife and, pursuant to such consent or agreement, followed up by a living together in such agreed relationship.” 294 S.W.2d at 640.
Thereafter, when the case was cited, the words then and thenceforth were deleted. That the requirement of a present agreement to be married is the proper test is evident from examining the civil cases. In Rosetta v. Rosetta, 525 S.W.2d 255 (Tex.Civ.App.—Tyler, 1975, no writ), the court said: “Present agreement to be married is a nec[444]*444essary element of common law marriage and it is not sufficient to agree on present cohabitation and future marriage.” 525 S.W.2d at 261.
There was no evidence that Johnson and appellant lived together as husband and wife. There was no evidence that Johnson and appellant considered themselves married. They did not hold themselves out as married to the general public. Appellant failed to object to Johnson’s damaging testimony and in fact specifically withdrew an earlier objection after the State showed that Johnson did not consider herself married and did not tell her friends and associates she was married. The trial court did not err in allowing Johnson to testify. See Shields v. State, 402 S.W.2d 761 (Tex.Cr.App.1966).
Appellant also appears in this ground to complain of the failure of the trial court to instruct the jury to disregard Johnson’s testimony unless they first found she was not appellant’s common-law wife. If so, that renders this ground multifarious and there is no need for this Court to' consider it. Williams v. State, 605 S.W.2d 596 (Tex.Cr.App.1980).
Regardless, as noted above, appellant withdrew his objection and all of the damaging evidence came in without objection. There was no proof that would support a finding of common-law marriage because there was no proof of all the elements that are required of a common-law marriage and therefore no charge was required, Welch v. State, supra. There was no reason to submit the issue to the jury because there was no dispute as to fact. All of the evidence concerning Lackey’s relationship with Johnson came from Johnson’s testimony. Therefore, there was no disputed fact issue for the jury to decide. The only question presented was a question of law.
Finally, as noted in Bodde v. State, supra, citing Wigmore, the better practice is not to submit the issue to the jury. Appellant’s ground is overruled.
Appellant further claims that, if appellant and Johnson were not married at common-law, the trial court, in allowing Johnson to testify, denied appellant equal protection of the laws. This is argued because Article 38.11, supra, applies only to married couples and not to others who have equivalent relationships based on “love, privacy, intimacy and cohabitation.”
While we see no merit in this ground, appellant did not object on this ground at trial. Therefore, nothing is presented for review, Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974).
Appellant next contends that the trial court erred during trial by admitting five photographs of the body of Diane Kumph, pictures he terms “inflammatory."
The photos show Kumph’s body with her throat slashed. The pictures showed the body as it was found. Since a verbal description of the body and its location was admissible, there was no error in admitting the photographs. Woodkins v. State, 542 S.W.2d 855 (Tex.Cr.App.1976), cert. denied 431 U.S. 960, 97 S.Ct. 2688, 53 L.Ed.2d 279 (1977); Blansett v. State, 556 S.W.2d 322 (Tex.Cr.App.1977).
It is impossible to determine the exact subject of appellant’s fourth ground of error, the ground on which the dissent would decide this case. Appellant seems to complain initially that Johnson lacked the authority to consent to the search of the truck and, therefore, the fruits of that search should not have been admitted. Then, it appears that appellant’s ground is based upon the failure of the trial court to submit the question of Johnson’s authority to consent to the jury as a factual question. Finally, he complains that the voluntariness of Johnson’s consent should have been submitted to the jury for their determination as a fact question.
Never is complaint made that the evidence obtained as a result of the search of the house or the truck should have been excluded from evidence because Johnson’s consent was not voluntarily given. The ground on which the dissent bases its opinion is not complained of, is not before this Court, and should not be considered by this Court.
[445]*445Second, even if in this ground one could locate the issue discussed by the dissent, the ground would be multifarious and not subject to review. Article 40.09, Section 9, V.A.C.C.P. Williams v. State, 605 S.W.2d 596 (Tex.Cr.App.1980); Rodriguez v. State, 530 S.W.2d 944 (Tex.Cr.App.1976).
Third, even if the ground examined by the dissent were properly before this Court, the appellant failed to preserve any error because his objection at trial was not specific enough to inform the trial court of the nature of his objection.
On December 19, 1977, a pretrial hearing was held pursuant to Article 28.01, V.A.C. C.P. A number of pretrial matters were heard at that time. No motion to suppress had been filed nor was any such motion heard that day. At the conclusion of the December 19, 1977 hearing, appellant’s counsel told the court that a motion to suppress might be filed later. The court stated that any other pretrial matters would be heard at the beginning of trial on January 16, 1978. The beginning of the trial was later delayed until February 15, 1978.
On February 15, 1978, the day the case was set for trial, appellant filed a motion to suppress the items seized as a result of the August 2, 1977 search of his residence and truck. As basis for the motion, appellant stated:
I.
“While law enforcement officers were trying to arrest Defendant on basis of arrest warrant, members of Lubbock County Sheriff’s Office, Lubbock Police Department, Texas Rangers, and Criminal District Attorney’s Office of Lubbock County, Texas, went to residence of Defendant and conducted a warrantless search of Defendant’s pickup truck and residence, seizing fifty (50) plus items of evidence.
II.
“Defendant did not consent to such search and seizure.
III.
“No exigent circumstances excused law enforcement officers from securing search warrants before conducting this search.” (Emphasis added)
Nowhere in this motion was the theory advanced that Johnson’s consent to the search was not voluntarily given.
The record reflects further that the motion to suppress had been sworn to in September, 1977, by appellant, though it was not filed until the day of trial. On February 15, 1978, just before the trial commenced, the trial court called the motion to suppress to be heard. At that time the following transpired:
“[Defense Counsel]: Yes, sir, in regards to the Motion to Suppress so the record will be clear, we ask that it be considered as other items in the Motion in Limine and that we have no pre-trial determination on this matter, but only when any of the evidence secured from a search of the residence and vehicle of this defendant on August 2, 1977 is offered, that it first be shown admissible outside the presence of the jury.
“THE COURT: Now — is that the end of your statement?
“[Defense Counsel]: Yes, sir.”
The trial court then ruled:
“... It appears to the Court that this matter could have, very easily, been filed and presented on the pre-trial hearing on the date of December 20, 1977 and been developed in Lubbock County, Texas.
“Now, the defendant comes forward and says that he doesn’t urge that as a Motion to Suppress as such, but ask that a hearing be held in connection with the Motion in Limine.
“The Court carries the Motion to Suppress and carries the same as requested by the defendant that it be considered as a Motion in Limine and it carries it and will hear it all at the same time when the evidence is presented by the State before the jury and a separate hearing at this time will not be conducted.”
[446]*446During trial, Detective Hargrave testified about the August 2 search of appellant’s house. Appellant initially objected to the testimony, saying, “I think there’s a real issue in this case as to the validity of any consent to search.” The State then elicited testimony from Hargrave that Carroll Johnson, appellant’s roommate, gave officers consent to search. Appellant objected to this testimony on the ground that the consent was hearsay. The objection was overruled.
Thereafter, appellant objected to • the search on the grounds that such testimony “would violate the 4th and 14th Amendment of the U.S. Constitution as well as Art. 1, § 9 of the Texas Constitution because they have not shown the authority to search, only hearsay.” The appellant secured a running objection to the search. Never, prior to the close of evidence, did appellant contend that the consent was involuntary or coerced, nor did he ever object on that ground.
After Hargrave testified, experts testified about the fruits of the search. Appellant always made the same objection, never hinting that he challenged the voluntariness of the consent.
Johnson was the State’s primary and last witness. She testified without objection about the blood she found in the house she shared with appellant on the morning after the murder and about appellant’s inculpato-ry actions and statements. Following the murder, she had been provided shelter by the State. During her testimony, appellant still never objected to the search on the ground that the consent was not voluntarily given.
In Smith v. State, 571 S.W.2d 168 (Tex.Cr.App.1978), this Court, in dealing with a defendant’s objections to the admission of pen packets, stated:
“... Appellant’s only objection, on constitutional grounds to the admissibility of the ‘pen packets’ was ‘they would be in violation of the 5th, 6th, and 14th Amendments to the United States Constitution.’ Appellant never designated any particular grounds upon which these pen packets violated the constitutional provisions cited. Therefore, nothing is presented for review.” 571 S.W.2d at 169, 170.
Here, also, while the constitutional provisions were cited, it was not urged that the consent was not voluntary. See, Martin v. State, 610 S.W.2d 491 (Tex.Cr.App.1980). There, the appellant at trial challenged a consent to search on the ground that the consent was involuntary. On appeal, the contention was also made that the consen-ter lacked the authority to consent. This Court said:
“On appeal additional challenges to the lawfulness of the search are raised. It is asserted that Kimberly did not have authority to consent to a search of the room appellant occupied in the house. Some of the evidence was seized in his room and some in other parts of the house. No objection was made at trial directing the court’s attention specifically to those items seized from appellant’s room, nor was objection made to Kimberly’s authority to consent to a search of that particular room. Consequently, the record was not developed with attention on this issue. Nothing is presented for review in this matter. See Morrison v. State, [Tex.Cr.App.] 508 S.W.2d 827, n. 4.”
As the dissent notes, in the case before us the State never attempted to establish the facts surrounding the consent. The facts discussed in this opinion and in the dissenting opinion are from statements by Johnson in response to leading questions asked by appellant’s attorney. Written consents to search the house and truck, testified to by Johnson and included in the record, were never introduced at trial.1 Police officers never testified as to the circumstances of the consent. Rather than this being oversight by the prosecuting attorney, it appears from the record that such failures are a result of the lack of specificity of the objection and the failure of the appellant to [447]*447apprise the trial court of the nature of his objection.
A defendant by an objection may require the State to show the basis of the search. This the State did here by showing consent of Carrol Johnson. When the State has then shown that it is basing the search on such consent, it is not unreasonable to require the defendant to inform the court that he challenges the voluntariness of the consent relied on by the State. Such requirement in no way shifts the burden of proof. It certainly does not require “unlimited powers of anticipatory imagination.” Rather, it merely insures that the court and opposing counsel will be aware of the issue being argued.
From this record, it is fair to conclude that appellant’s objection at trial was interpreted by the trial officials as challenging the authority of Johnson to consent to the searches and not to the voluntariness of that consent. Particularly, in light of the peculiar nature of the facts of this case (the consenter being a key witness for the State, who had been housed by the State and was identified by all as having the same interest as the State), this Court will not overrule the rule of law set out in Smith v. State, supra, and, therefore, finds that appellant was not specific enough in his objection to apprise the trial court of the nature of his objection.
Fourth, even if the question of the volun-tariness of the consent should be reached in this ease, the record reveals that Johnson voluntarily consented to the search of the house she shared with appellant, and we so hold.
The Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), said that, in determining whether a consent to search is voluntary, all of the facts surrounding the consent must be examined. The determination of the voluntariness of the consent should rest on the totality of the circumstances. An examination of those circumstances surrounding the consent is therefore required.
On July 31, 1977, at 10:30 p.m., police officers arrived at Johnson’s house. After asking Johnson s permission, they conducted a search of the house. That search was not contested and is not the basis of appellant’s claim.
On August 2, 1977, about 4:00 p.m., Officer Ward of the Lubbock Police Department came to the same house and requested that Johnson go with him to the police station. Johnson agreed and the two went to the station. Johnson had known Officer Ward previously as she had worked with him at Video Independent Theaters several years before. Upon arrival at the station, Ward gave Johnson her Miranda rights. The initial questioning lasted for one and one-half to two hours. The thrust of the questioning apparently was directed at Johnson’s knowledge of the facts surrounding the crime. Johnson was asked if she had cleaned up the residence on July 31, 1977. She denied having done so. Apparently at this point Ward offered Johnson a polygraph test. She asked if she had to take it. He told her that she did not have to do so but if appellant were proved guilty and if she had lied to the police she could be charged (apparently with murder). The subject of another search had not been broached.
Johnson was crying. She was worried about her children. When Johnson became emotional, Ward discontinued his questioning and a policewoman, B. J. Ellis, came in and spoke with Johnson. Ellis brought Johnson a cup of coffee. Ellis, who had also worked at Texas Instruments, where Johnson worked, talked with Johnson about working there.
Ward later returned and Johnson gave a written statement implicating appellant in the murder and rape of Diane Kumph. After giving the statement, Officer Ellis brought Johnson a consent to search form for the house. This apparently was the first mention of a search. Ellis explained to Johnson that the form would give the police authority to go through her house. Johnson was told that a warrant could be obtained but that the form allowed a search without calling up the judge. Johnson signed a consent form which authorized the [448]*448police to search her house. There was never any hint that the officers had brandished guns at any point or had threatened Johnson with violence or harm. There was no evidence that any type of coercion was used in obtaining the consent. Johnson was not under arrest. Johnson then went with the police to the house and there consented in writing to the search of appellant’s father’s truck that she had been driving. The truck was parked at her house. After the search was completed, Johnson went to the district attorney’s office with the police, then back to her house to pick up her belongings. She later returned to the district attorney’s office. After that, she was checked into a motel where she spent the night. The bill was paid by the district attorney’s office. Appellant had not yet been arrested.
Johnson was one of the State’s key witnesses at trial, testifying about the blood in her house the morning after the murder and the admission by appellant.
In analyzing the voluntariness of a consent to search, it is important to remember that factors which might render a confession inadmissible will not vitiate the volun-tariness of a consent, though they are relevant to the inquiry, United States v. Horton, 601 F.2d 319 (7th Cir. 1979), cert. denied 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 197 (1979).
Involuntary confessions are excluded from evidence for two reasons. First, an involuntary confession may not be reliable. A person coerced or promised benefits may give an untrue confession. An involuntary confession may be an impediment to the truth finding function of the courts. Therefore, actions by the police that are neither coercive nor offensive may still require that a confession be excluded because there is mistrust of the reliability of the confession. See Wigmore, Evidence, Section 822 (J. Chadbourne rev. 1970); Note, Developments in the Law: Confessions, 79 Harvard L.Rev. 935. Second, suppression is a way of deterring police conduct that violates the Constitution and offends societal standards. Therefore, there are dual considerations in determining the admissibility of confessions and the subjective state of mind of the person confessing is a valid consideration or factor, though it can normally be understood by looking to objective actions.
However, in determining the voluntariness of a consent to search, there can be no doubt as to the reliability of the evidence obtained. Whether or not Johnson “voluntarily” consented to the search, blood and hair were in the house. See Schneckloth v. Bustamonte, supra, citing Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), discussing the reliability of evidence obtained by an invalid search. Therefore, the rationale for excluding the probative evidence resulting from a constitutionally invalid search is deterrence of future police conduct that is offensive and coercive or violative of a subject’s constitutional rights. See Linkletter v. Walker, supra.
In Schneckloth, the Supreme Court held there was no need for the State to show that the consenter knew he had a right not to consent. The subject of the court’s inquiry should be the objective actions of the police that brought about the consent. If the State shows that the consent was “not the result of duress or coercion, express or implied”, the consent is voluntary. See Schneckloth, 412 U.S. at 248, 93 S.Ct. at 2059.
Society’s interests are well stated in Schneckloth, 412 U.S. at 242, 93 S.Ct. at 2055:
“While the Fourth and Fourteenth Amendments limit the circumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person’s voluntarily allowing a search. The actual search may be precisely the same as if the police had obtained the warrant. And, unlike those guarantees that protect a defendant at trial, it cannot be said every reasonable presumption ought to be indulged against voluntary relinquishment. We have only recently stated, ‘It is no part of the policy underlying the 4th and 14th Amendments to discourage citizens from aiding to the [449]*449utmost of their abilities in the apprehension of criminals.’ Coolidge v. New Hampshire, 403 U.S. [443] at 488, [91 S.Ct. 2022] 29 L.Ed.2d 564. Rather, the community has a real interest in encouraging consent for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongfully charged with a criminal offense.”
Therefore, the purpose of the exclusionary rule should be kept in mind in evaluating the voluntariness of a consent to search and the decision whether to exclude probative evidence from a trial.
A review of what other courts have found to be “voluntary consent” in non-confession cases is relevant. In United States v. Ryan, 548 F.2d 782 (9th Cir. 1976), cert. denied 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977), the issue of whether the consent of an informant was voluntary was raised in an electronic monitoring case. The facts there showed that to secure consent of an informant, the officers told him that should he refuse to consent they would arrest him and they had enough evidence to send him to prison for ten years. If he consented, charges would be dropped. The government official also told him that if he did not cooperate he would lose his livelihood, damage his family and be deprived of special medical treatment. When he asked if he could call an attorney, he was told that he could, but if he did so the “deal” was off. He then consented. The Ninth Circuit, citing Sehneckloth, found that the consent given was voluntary.
In Commonwealth v. Merbah, 270 Pa.Super. 190, 411 A.2d 244 (1979), the court held that the fact that six officers approached the defendant’s van, one with his gun drawn, would not vitiate a consent given to search the van, absent other coercive facts.
It has been held that a person in custody, who was told she might be held as a material witness or an accomplice, that she might have to arrange care for her son if she were held, and that a search warrant was being procured, and who then consented to a search, consented voluntarily. State v. Reynolds, 43 Or.App. 619, 603 P.2d 1223 (Or.App.1979), aff’d 289 Or. 533, 614 P.2d 1158 (1980).
In contrast to these cases, the dissent would find the State failed to prove the voluntariness of Johnson’s consent on four factors:
(1) the police told her they could get a warrant regardless of her consent;
(2) the officer told her that, if she lied about the murder, charges could be filed against her;
(3) Johnson’s subjective fears about her children; and
(4) Johnson’s general emotional state at the time of the consent.
(1) The police told her that a warrant could be obtained regardless of her consent.
It has often been held that the statement by an officer that, if consent to search were not granted, a search warrant could or would be obtained will not render a subsequent consent involuntary. See Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973), which held that this type statement will not vitiate consent. See also, Beaupre v. State, 526 S.W.2d 811 (Tex.Cr.App.1975), cert. denied 423 U.S. 1037, 96 S.Ct. 573, 46 L.Ed.2d 412 (1975). This Court held there that a statement by the sheriff that “he was going to obtain a warrant to search” did not render a subsequent consent to search involuntary. The federal courts seem to agree with this rule. See, United States v. Agosto, 502 F.2d 612 (9th Cir. 1974); United States v. Savage, 459 F.2d 60 (5th Cir. 1972); United States v. Miller, 589 F.2d 1117 (1st Cir. 1978), cert. denied 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1978).
(2) The officer told her that, if she lied about the murder, charges could be filed against her.
Ward’s comment about the possible filing of charges dealt with Johnson’s statements about the facts surrounding the murder. Ward, at that time, was still attempting to find out what happened the night of the [450]*450murder. Ward, at that time, had no way of knowing if Johnson were involved in the murder. There was never any threat that charges could or would be filed against Johnson if she did not cooperate or consent to the search. In fact, Johnson had already “told the truth” prior to any consent to search being requested. Johnson knew that if she refused, a warrant could be obtained. No threat about charges being filed was ever made concerning the consent to search.
However, some cases concerning threats of filing charges if consent is refused or immunity if consent is given may be noted. In State v. Christofferson, 101 Idaho 156, 610 P.2d 515 (1980), the officer, who was searching for evidence of a robbery, promised that if consent to search the premises were given no drug charges would be filed and that he would put in a good word with the judge. The officer also lied and told the defendant that a search warrant was being prepared. Consent was given. The Idaho court held the consent to be voluntary.
In United States v. Miller, supra, a defendant consented to a search of luggage only after the authorities pointed out the possible maximum penalties for smuggling and told him they would seek a warrant if he withheld consent. The consent was held voluntary.
A wiretap in which neither party consents to the monitoring of the conversation is a search within the scope of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Dowdy v. United States, 479 F.2d 213 (4th Cir. 1973), cert. denied 414 U.S. 866, 94 S.Ct. 132, 38 L.Ed.2d 118 (1973), the government offered a person immunity for other crimes if he would allow the government to monitor his conversations with Dowdy. The offer was accepted and the calls were monitored. Dowdy then complained that the consent to the search was involuntary due to the coercive nature of the charges against the informant. This contention was rejected by the Fourth Circuit which found the consent voluntary. See also, United States v. Ryan, supra, another electronic monitoring case in which the government threatened to arrest the consenter and send him to prison for ten years if he did not consent. He consented. The court held that his consent was voluntary.2
(3) Johnson’s emotional state at the time of the consent.
On cross-examination, Johnson testified that she had been crying, was upset and emotional at the time of the consent. She never indicated that she did not know that she was consenting to a search. In fact, she testified that before she signed the consent the officers explained that it would enable them to search the house without a warrant. In Martin v. State, 610 S.W.2d 491 (Tex.Cr.App.1980), the 15-year-old consen-ter gave her consent only hours after learning of the murder of her mother and grandmother. In Martin, the consent was found to be valid despite the intensely emotional circumstances of the consent.
The fact that the consenter was quite shaken, extremely nervous and had a difficult time even speaking, while indicative of a highly emotional state, did not render the consent involuntary in United States v. [451]*451Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
(4)Johnson’s concern for her children.
Johnson never indicated that the officers mentioned anything about her children. This was a subjective fear of Johnson’s not related to police conduct. (See the discussion, supra, of the importance of examining police conduct in consent to search cases.) A person’s consent prompted by their concern for others does not render consent involuntary. In United States v. Culp, 472 F.2d 459 (8th Cir. 1973), cert. denied 411 U.S. 970, 93 S.Ct. 2161, 36 L.Ed.2d 692 (1973), a man and his wife were arrested. Consent to search by the husband was given in hopes that cooperation would result in leniency for his wife. The consent was held to be voluntary. See also, Nastu v. State, 589 S.W.2d 434 (Tex.Cr.App.1979), cert. denied 447 U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980), in which the Court held that, though the defendant made his consent to a search conditioned on his being able to calm his upset wife, his consent was voluntary. In Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977), this Court found that, though the reason the defendant gave a consent to search his truck may have been his desire that another person not be charged for the offense, this would not render his consent involuntary.
Therefore, it can be seen that the factors listed in the dissenting opinion would not require finding that the consent was involuntary. Those facts must be considered in relation to the totality of the circumstances. An examination of the events leading up to the consent does not show unconstitutional conduct on the part of the police that should be deterred or that would cause Johnson’s consent to be involuntary. Johnson’s own testimony showed the following:
(1)There had been a prior consensual search on July 31, 1977.
Johnson testified that on July 31 police officers came to her house and asked if they could look through the house. Apparently she consented at that time. The appellant never challenged the voluntariness of that consent. The fact that she had already consented once before to a search makes it highly unlikely that the search on August 2, 1977, (of which appellant now complains) was the result of an involuntary consent. See Smith v. State, 530 S.W.2d 827 (Tex.Cr.App.1976).
(2) Johnson voluntarily accompanied Officer Ward to the police station.
Johnson’s trip was the result of her own choice. The lack of coercion in her going to the police station lends an ambience of free choice to her circumstances. See United States v. Mendenhall, supra, and Nastu v. State, supra.
(3) The visit by Ward to Johnson’s house and the questioning at the police station occurred, not in the dead of night, but at 4:00 p.m. on a summer’s day. Again, this is a factor tending to indicate that the consent given was voluntary. United States v. Mapp, 476 F.2d 67 (2nd Cir. 1973).
(4) Johnson had known and worked with Officer Ward previously. This previous association would tend to make the situation less intimidating for a consenter.
(5) After arriving at the police station, Ward read Johnson her Miranda rights, including her right to an attorney. Apparently, the situation was not so coercive as to lead her to avail herself of any of her rights. It has been held that advising a person of her constitutional rights is a very important factor indicating that a subsequent consent to search is voluntary. She knew that she did not even have to talk with Ward. Again, the use of that prophylactic warning lends an air of voluntariness to the subsequent consent. See United States v. Jones, 475 F.2d 723 (5th Cir. 1973), cert. denied 414 U.S. 841, 94 S.Ct. 96, 38 L.Ed.2d 77 (1973); DeVoyle v. State, 471 S.W.2d 77 (Tex.Cr.App.1973).
(6) There is absolutely no indication that Johnson was physically abused or threatened. No guns were ever displayed. There is no evidence of violénce or physical coercion of any type. The absence of these coercive factors is indicative that the consent given was voluntary. See Valerio v. State, 494 S.W.2d 892 (Tex.Cr.App.1973).
[452]*452(7) Johnson was a mature, 25-year-old woman with a high school education. Contrast these factors with the consenter in Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973), who was only seventeen years of age at the time she “consented” to the search. See also, Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973).
(8) Johnson told the court that, when she became emotionally upset and began to cry, Officer Ward discontinued the questioning. In fact, at that time the female officer brought her coffee and discussed her job at Texas Instruments to calm her down. This hardly conjures images of rubber hoses or coercive police methods that need to be deterred. See United States v. Busic, 592 F.2d 13 (2nd Cir. 1978), in which the fact that the weary consenter got sleep before consenting was considered a relevant factor in evaluating the consent.
(9) Johnson, by consenting to a search, was not acting against her self interest. This is certainly not a controlling consideration but nonetheless is important in determining whether a person is acting voluntarily. A person acting against her self interest is less likely to be acting voluntarily than one acting in accord with her self interest.
(10) Johnson gave a written voluntary consent to search. This tends to show that her consent was definite and unequivocal. Generally, a person will consider a decision with more care and deliberation if she signs something rather than making an off-hand verbal consent.
(11) After giving the consent, Johnson was provided with a place to stay the night by the district attorney’s office. This occurred after the consent was given but indicates that the State and Johnson were working together. In fact, once Johnson gave a statement implicating appellant, her interest and those of the State coincided and that included Johnson’s consenting to the search. See Villareal v. State, 576 S.W.2d 51 (Tex.Cr.App.1979), cert. denied 444 U.S. 885, 100 S.Ct. 176, 62 L.Ed.2d 114 (1979), at page 59, in which a deaf mute consented to a search. This Court found that among the factors indicating voluntariness of the consent was the fact that the consenter was actively aiding the State.
(12)Johnson never testified that her consent was involuntary or that she would not have given the consent but for the “coercive” factors listed by the dissent. She testified. The appellant could have asked her those questions. He chose not to do so. He never asked her why she consented. The fact that the consenter never claimed coercion is extremely important in evaluating the consent.
The case cited by the dissent as “instructive” can easily be distinguished from this case. In Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973), twenty officers, many with drawn weapons, confronted the girl whose consent was being challenged. The girl in that case was seventeen years old. She was given no Miranda warnings. Any consent given by her was oral. She apparently knew none of the officers. The girl in that case denied that she had given any consent to the officers to search the apartment.
Lowery does not instruct a finding that in this case the consent given was involuntary.
The totality of the circumstances before us do not reflect that Johnson was subjected to the type of coercion or duress that would vitiate her consent. The conduct of the officers in obtaining consent was not offensive nor violative of anyone’s constitutional rights. No societal good would be served by excluding from evidence the items found at appellant’s residence and in the truck. The Fourth Amendment does not require such a result. The consent given was voluntary.
The ultimate irony of the dissent’s position is that it would “remedy” the “coercion” used on Johnson by reversing appellant’s conviction, thereby doing an act that Johnson (the State’s star witness whose statement to police led to appellant’s arrest and whose testimony sealed appellant’s fate) would undoubtedly prefer not be done.
[453]*453Even if error was committed in admitting the items seized from the search of the house or the truck or both, such error was harmless beyond a reasonable doubt.
It would be difficult to imagine a stronger case than that found here and set out above in detail even absent the evidence found as a result of the searches. Appellant’s fingerprint was found on a cigarette pack which was discovered in the deceased’s bed after Diane Kumph was abducted. The pack was appellant’s brand. A witness, who was apparently awakened shortly after the abduction, saw a man fitting appellant’s description getting into a pickup in which a woman was slumped over in the seat. The pickup description was similar to appellant’s father’sjxuck. The pickup seen after the abduction was missing the right rear hubcap. Appellant’s father’s pickup was missing a right rear hubcap. Appellant was seen in the truck just before the murder. Blood found on appellant’s boots matched the deceased’s type. Semen taken from the victim showed that the man who raped her had type 0 blood. Appellant had type 0 blood. Hairs found on the deceased were similar to appellant’s. A heel print on the victim’s apartment door was similar to the prints made by appellant’s boots. Most importantly, appellant made an admission of his guilt to Johnson, and Johnson testified as to the blood found about her house the morning after the murder. The body was found near appellant’s home.
In Brasure v. State, 291 A.2d 286 (Del.Supr.1972), a truck owned by the defendant was found by police. Several items that had been stolen in a burglary were found in the truck. The defendant’s fingerprints were found on one of the items. Later, a search was conducted of the defendant’s home. More of the stolen items were found there. These were admitted into evidence. The court held that even if the search of the defendant’s home was illegal, the admission was harmless beyond a reasonable doubt.
See also, United States v. Reid, 517 F.2d 953 (2nd Cir. 1975), in which the court indicates that strong circumstantial evidence may render an error in admitting evidence harmless. The court there said: “The presence of his (defendant’s) glasses at the store, of his fingerprints on the stolen Buick station wagon, and of Shea’s service revolver at the site of his apprehension in Ohio identified him as a perpetrator of the crime more solidly than the most unblemished identification testimony could have done.” 517 F.2d at 967.
In light of fingerprints, admissions, blood and the other evidence linking appellant to the murder, the admission of the complained of evidence would be harmless beyond a reasonable doubt.3
If appellant’s complaint in this ground is that Johnson lacked the authority to consent to the search of the truck, and therefore, the evidence obtained as a result of the search should have been excluded, the ground is without merit.
The evidence showed that the pickup searched belonged to appellant’s father, but it was parked at Johnson’s house and she had authority to use it, apparently since her car was not in driving condition. Putting aside the issue of whether appellant had a sufficient expectation of privacy in his father’s truck to allow him to challenge the legality of the search, Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), it is clear that Johnson could consent to the search of the truck. Though she lacked title to the truck, the fact that the truck was at her house, that she had authority to use it, and that she had been using it, meant she could consent to its search. Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Morrison v. State, 508 S.W.2d 827 (Tex.Cr.App.1974); Jefferson v. State, 452 S.W.2d 462 (Tex.Cr.App.1970).
[454]*454If the complaint in this ground is that the trial court erred in failing to submit the issue of Johnson’s authority to consent to the search of the truck as a factual issue pursuant to Article 38.23, V.A.C.C.P., the contention is likewise without merit.
Article 38.23, V.A.C.C.P., provides:
“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
“In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.”
Appellant failed to request such a charge or to object on this basis. Appellant objected to the jury charge on the ground that the court failed to instruct the jury to disregard the evidence obtained as a result of the “illegal warrantless search of the 1968 Chevrolet pickup possessed by defendant because Carroll Jean Johnson did not have authority to consent to the search However, appellant did not ask that the issue of Johnson’s authority to search be submitted to the jury as a factual question pursuant to Article 38.23, supra. Therefore, no error is shown. Green v. State, 451 S.W.2d 893 (Tex.Cr.App.1970). Even if appellant had requested the issue be submitted as a fact question to the jury, it would have been proper to refuse to do so. Johnson testified as to her authority to consent. There was no conflicting testimony or evidence. Therefore, the appellant would not have been entitled to such a charge since the only dispute was to the law, not the facts. In Jones v. State, 493 S.W.2d 933 (Tex.Cr.App.1973), this Court held:
“Article 38.23, V.A.C.C.P., provides that where the legal evidence raises the issue, the jury shall be instructed that evidence which they believe or that they have a reasonable doubt was obtained in violation of a provision of the Constitution or a law of the State of Texas, or of the Constitution of the United States, the same shall be disregarded. This statute is applicable only where a disputed fact issue is raised concerning the alleged violation. Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App.1973).
“Under the facts of this case, no disputed fact issue was raised regarding the legality of the search.... ”
See also, Gaffney v. State, 575 S.W.2d 537 (Tex.Cr.App.1978).
If the complaint in this ground is that the trial court erred in failing to submit the issue of the voluntariness of Johnson’s consent to the jury as a factual issue pursuant to Article 38.23, supra, the contention is also without merit.
Appellant failed to request such a special charge. Nor did he object to the charge as given on that ground. No error is shown. Green v. State, 451 S.W.2d 893 (Tex.Cr.App.1970). Regardless, since there was no dispute as to the facts surrounding the search and the voluntariness of Johnson’s consent, the only question is a question of law. Therefore, it would have been proper to refuse to submit the issue to the jury, even if properly requested. Jones v. State, supra; Gaffney v. State, supra.
Appellant, in another multifarious ground of error, contends that the trial court erred in refusing a number of specially requested instructions at the punishment phase of the trial. Appellant fails to point out which instructions are the basis for his appeal. We will, therefore, address the ground as we are able to discern it.
Each of the requested instructions apparently complained of concerned mitigation of punishment and requested that the jury be asked if mitigating factors outweighed aggravating factors or if there were insufficient mitigating circumstances to call for leniency. One requested charge dealt with temporary insanity due to intoxication.
[455]*455We note that the trial court did instruct the jury that temporary insanity due to intoxication may be taken into account in mitigation of punishment.
Since there was no evidence of provocation, the trial court posed only two questions to the jury at the punishment phase of the trial:
(1) whether the appellant’s conduct was committed deliberately with the expectation that death would result, and
(2) whether there was a probability that the appellant would commit criminal acts of violence that would be a threat to society.
Appellant does not complain of the exclusion from consideration by the jury of any evidence. Apparently he feels that all evidence relevant to sentencing was admitted into evidence. Rather, he contends that the failure of the trial court to inquire via special questions whether the jury found mitigating circumstances sufficient to call for leniency violated the Eighth and Fourteenth Amendments to the United States Constitution.
Essentially, the same contention was raised and rejected by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The Supreme Court said: “Thus, the constitutionality of the Texas procedures turned on whether the enumerated questions, (i.e., the statutory questions) allow consideration of particularized mitigating factors.” 428 U.S. at 272, 96 S.Ct. at 2956. The Court held that the statutory question concerning future dangerousness would allow a defendant to bring to a jury’s attention whatever mitigating circumstances he might show. Therefore, the statute is constitutional since mitigating factors can be shown. It is not constitutionally mandated that the jury be specifically instructed about mitigating factors as long as they are able to consider them in deciding the other questions. The Supreme Court in Jurek concluded saying:
“By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. * * * Because this system serves to assure that sentences of death will not be ‘wantonly’ or ‘freakishly’ imposed, it does not violate the constitution . . .. ”
See also, Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 2524, 65 L.Ed.2d 581 (1980).
Next, appellant puts forth the argument that since the sentence for a prior conviction in Cause 14,629, which was introduced at the punishment phase of the trial, had not been signed by the judge, its admission should not have been allowed.
The record shows that the judgment in Cause 14,629 was properly signed, though the sentence was not. Both were admitted as part of a properly authenticated Texas Department of Corrections pen packet. In Robinson v. State, 449 S.W.2d 239 (Tex.Cr.App.1969), this Court held that the failure of a judgment of a prior conviction to reflect a signature by a judge would not render it inadmissible. See also, Moye v. State, 220 S.W.2d 651 (Tex.Cr.App.1949).
In Campbell v. State, 502 S.W.2d 736 (Tex.Cr.App.1973), this Court said:
“Article 42.01, Vernon’s Ann.C.C.P., does not require the judge’s signature on the judgment. The fact that the prior judgment and sentence were not signed by the judge does not affect the validity of the former conviction.” 502 S.W.2d at 737.
See also, Rose v. State, 470 S.W.2d 198 (Tex.Cr.App.1971).
Regardless, since this was the punishment phase of a capital case and no enhancement was alleged, the proper introduction of the signed judgment in Cause 14,629 would render any error in admitting the sentence harmless.
Next, appellant contends that the trial court erred in failing to declare a mistrial when a nonresponsive answer by a witness interjected an extraneous offense into evi[456]*456dence during the guilt-innocence phase of the trial.
In proving that the fingerprints found on the cigarette package belonged to appellant, the State showed that the latent print matched a known print of appellant’s. In proving up the known print, the following transpired:
“Q. And who took those fingerprints, please, sir?
“A. I did back May 29, 1971.
“Q. All right. And, do you see the Clarence Lackey whose fingerprints they—
“MR. JOHNSON: Your Honor, just a minute. May we approach the bench?”
Afterward, the trial court sua sponte instructed the jury to disregard the “unresponsive remark” made by the witness. Appellant moved for a mistrial which was denied.
Generally, an instruction to disregard will cure a nonresponsive answer. In Evans v. State, 542 S.W.2d 139 (Tex.Cr.App.1976), a burglary case, an officer was asked on direct examination, “And how did you and Mr. Evans (defendant) happen to get together on that occasion?” The officer replied, “It was through investigation concerning the alleged forgeries of some checks.” After an objection was sustained, the trial court instructed the jury to disregard the statement. This Court held that such an instruction was sufficient to cure the harm. In Boykin v. State, 504 S.W.2d 855 (Tex.Cr.App.1974), a reputation witness, when asked when he met the defendant, replied that he had been robbed by him. The instruction to disregard cured the error.
In the case before us, the implication of an extraneous offense was slight and indirect. Regardless, the trial court’s prompt instruction cured any error.
The appellant declares that the trial court erred by refusing to allow a psychologist, David McBride, to testify in rebuttal at the Article 46.02, Section 4, V.A.C.C.P., jury hearing held to determine appellant’s competency to stand trial.
The record shows that at the competency hearing appellant, in his case in chief, placed appellant’s mother on the stand. She testified about appellant’s background. She said appellant was never in special education classes though it was considered, and that he made C’s, D’s and F’s in school. She said appellant’s father drank and that caused problems for appellant. She also said he had problems with his memory and did not understand things. She testified that she often saw appellant lay on the floor and stretch out or rock. She also said he had poor verbal skills. She said he did not “catch” jokes and often wet the bed.
Next testifying for appellant was a psychiatrist formerly with Big Spring State School, Lloyd Downing, who had examined appellant for some two and one-half hours. He testified that he had had access to certain tests appellant had been given previously. He also stated that on January 30, 1978, he personally administered tests and portions of certain tests, such as the Bender-Gestalt, Illinois Test for Psycholinguistics Ability, and the Utah Test for Language Development. The psychiatrist testified that as a result of these tests he determined that appellant’s “brain isn’t hooked up right”, and that this was an organic problem. He said appellant was functioning on the level of a ten-year-old and was, therefore, not competent to stand trial. The psychiatrist speculated that appellant’s brain disorder might be caused by a form of epilepsy and could be temporal lobe seizure syndrome. He added that the appellant could have a temporal lobe disorder because appellant said things tasted strange, he smelled odd things, and he had abnormal sensations in his intestinal tract. He said the stretching or rocking as a child would be a symptom of brain damage.
Downing testified that an IQ test performed on appellant showed a verbal score of 60 and a performance quotient of 80. This disparity indicated severe problems, according to Downing. He admitted that a report prepared at the Big Spring State School totally disagreed with his analysis. He noted that appellant had a difficult time understanding what he was saying and had [457]*457memory difficulties during the interview. Appellant then rested.
The State called Richard Coons, also a psychiatrist. He testified that he had examined appellant for some two and one-half hours. He said that appellant’s mood was pleasant and he was oriented as to time and place. There was no evidence of psychotic thinking. He termed appellant’s intelligence as dull normal. According to Coons, appellant had an understanding of the proceedings and charges. He stated that appellant could tell him what appellant was charged with, what it meant and about the possible penalties. He could also relate the function of the various persons in the criminal justice system. He concluded that appellant was competent.
On cross-examination, Coons said that appellant told him that appellant smelled things no one else did, but Coons said that was not necessarily indicative of any psychosis. He said appellant had told him he had heard his name called when no one had spoken. He also noted that appellant suffered from a vocabulary deficiency.
Coons stated that if a person had a temporal lobe seizure he would not be competent during the instant of seizure, but said the seizure would only last a few seconds. He stated that earlier a brain scan had been performed on appellant and it was normal. He testified that an EEG had been run and the results had been normal and that he felt appellant was far from being incompetent.
A lay witness then testified about appellant’s normal behavior in the jail.
On rebuttal, the appellant called David McBride, a masters level psychologist. The trial court excluded the testimony. The trial court did not assign a reason for this exclusion. We, therefore, may not assume it was because the court found the witness lacked expertise as a psychologist. The State objected on the ground that McBride’s testimony, while proper in the case in chief, would be improper in rebuttal because it did not rebut any testimony put on by the State.
On a bill, the appellant elicited that McBride on February 4, 1978, administered tests that Downing had requested: an IQ test, Bender-Gestalt, house-tree-person test, and the thematic apperception test. Concerning the IQ test, the testimony would have shown that appellant scored 73 on the verbal portion and 104 on the performance with an overall quotient of 86, or in the dull normal range. McBride would have testified that this discrepancy between the verbal and the performance portions was indicative of brain damage. The Bender-Gestalt test, according to McBride, also indicated an organic brain condition, sensory aphasia, an inability to receive verbal communications. The other tests did not indicate any organic dysfunctions that could make appellant incompetent, but did indicate certain emotional problems. McBride also would have testified that appellant was cooperative and in a good mood and showed no sign of fatigue or frustration. McBride expressed no opinion as to appellant’s competency.
The State contends only that McBride’s testimony was not a proper subject for rebuttal because it did not specifically rebut any of the testimony elicited by the State. Article 36.02, V.A.C.C.P., provides:
“The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.”
This Court has often held that this statute and its predecessors mean that testimony may be introduced in the rebuttal portion of a trial whether it specifically rebuts other testimony or not. In McClellan v. State, 118 Tex.Cr.R. 473, 40 S.W.2d 87 (1931), this Court held:
“Whether the testimony proposed to be introduced is in rebuttal or not is immaterial if it appears to be necessary to a due administration of justice.” 40 S.W.2d at 89.
See also, Parks v. State, 437 S.W.2d 554 (Tex.Cr.App.1969); Douthit v. State, 482 S.W.2d 155 (Tex.Cr.App.1972).
Downing had testified that appellant had an organic brain dysfunction and because of [458]*458that was not competent to stand trial. Coons then testified that appellant was competent. McBride, while not commenting on appellant’s competency, would have testified that two psychological tests indicated an organic brain dysfunction.
McBride’s testimony was probative as to whether or not appellant suffered from an organic brain dysfunction. Downing stated that such a dysfunction caused appellant to be incompetent. Therefore, McBride’s testimony would have been probative as to whether appellant was competent to stand trial.
The State cites us to the ease of Castillo v. State, 494 S.W.2d 844 (Tex.Cr.App.1973), as standing for the proposition that whether to allow the rebuttal testimony is within the trial court’s discretion. In that case, the defendant complained of the court allowing the State to put on certain evidence. This Court held that the decision was within the trial court’s discretion and there was no error in allowing the testimony. However, it does not follow that the trial court can never abuse that discretion when it refuses evidence.
In Stone v. State, 239 S.W. 209 (Tex.Cr.App.1922), the State put on evidence showing that the defendant had attempted to kill the victim without provocation. The State rested. The defendant then called witnesses who testified that provocation existed. The defense rested. The State then countered with more witnesses for its version. The trial court refused to allow the defendant to put on rebuttal testimony further showing the existence of provocation. This Court said:
“That rebuttal testimony must be directed against new matter, and not that brought in in the opening of the case is abrogated by the statute in this state....
“It is within the discretion of the trial court to refuse to hear testimony proffered after the beginning of the argument, and only when the discretion is clearly abused will the action be reviewed.
“Concerning the testimony offered before the argument begins, the discretion of the court is not so broad.... In fact, under the latter circumstances, if the proffered evidence is material and bears directly upon the main issues in this case, it would not be within the discretion of the court to exclude it unless it was offered under conditions which would impede the progress of the trial or in some way interfere with the due and orderly administration of justice.”
The Court, therefore, reversed the judgment in that case as there had been no showing that allowing the testimony would interfere with the administration of justice.
More recently, this same view was expressed in Tucker v. State, 578 S.W.2d 409 (Tex.Cr.App.1979); Vital v. State, 523 S.W.2d 662 (Tex.Cr.App.1975), and Holifield v. State, 599 S.W.2d 836 (Tex.Cr.App.1980). In Vital, the Court said:
“But irrespective of its weight or of its probative value or cumulative character or the issue upon which it is offered .. . if the evidence was admissible and offered before the reading of the charge and prior to arguments, unless it appears its introduction would have impeded the trial or interfered with the due and orderly administration of justice, it will be reversible error to refuse the request to reopen for its receipt.” 523 S.W.2d at 664.
Certainly, if it would be error to refuse to allow a defendant to reopen after the close of evidence, it would be error to refuse to allow him to put on testimony in rebuttal as Stone v. State, supra, shows.
There was no showing here that allowing McBride to testify would have in any way interfered with the administration of justice and delayed the trial. Compare Wilkinson v. State, 423 S.W.2d 311 (Tex.Cr.App.1968), and Holifield v. State, supra. Of course, the trial court may, in a proper case, limit the number of experts called by a defendant to a reasonable number, 6 J. Wigmore, Evidence, Section 1908 at 751 (Chadbourne rev. 1976). The trial court erred in refusing to allow McBride to testify-
[459]*459Finding no other error in this cause, we abate the appeal and remand the cause to the trial court to empanel a new jury within ninety days to determine whether appellant was competent to stand trial when he was tried in February, 1978. A record in that proceeding shall be prepared and transmitted to this Court for further disposition. See Brandon v. State, 599 S.W.2d 567 (Tex.Cr.App.1980).
It is so ordered.
638 S.W.2d 439 (Lackey v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.