# Opposition — McCall v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 965

## Text

NN
Supreme Court, U.S, \ |
FILED

' NOV @ i977

IN THE MICHAEL RODAK, JR., CLERK
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1977

* * *

NO. 77-269

*_ * *

SIMMIE LYNN McCALL and
BILLY DON MILLS,

Petitioners
V.
THE STATE OF TEXAS,
Respondent
* * *

BRIEF FOR RESPONDENT IN OPPOSITION

*- * *

JOHN L. HILL
Attorney General of Texas

DAVID M. KENDALL
First Assistant Attorney General

JOE b. DIBRELL, JR.
Assistant Attorney General
Chief, Enforcement Division

CATHERINE E. GREENE
Assistant Attorney General

P.O. Box 12548, Capitol Station
Austin, Texas 78711

Attorneys for Respondent

SUBJECT INDEX

Page
Te I eee i, ii
ee ee I sis petetiicc tients necsiitndcesenainns iii, iv
a cisuinameeonensenibiendiats l
I albeit iliicihainatntceatacaipeininctniciredsarenneene l
I FN ovenevcescciscccncccscccscssciscccocsee 1
CONSTITUTIONAL PROVISIONS INVOLVED ............... 2
STATEMENT OP THE CAME .n........005.00..c0cccccccccesseees. 2
ARGUMENTS AND AUTHORITIES ..................0...000000s 3

I. The Trial Court's Error in Instructing the Jury That
They Could Determine The Punishment To Be
Assessed By “Lot, Chance, Or Any Other Method”
Other Than the Unanimous Decision of the Jury Was
ie STE Rane ee a ORO PO aa 3

Il. The Prosecutor Did Not Withhold Exrculpatory
Statements From Defense Counsel ............2.000000005 5

III. The Court Below Correctly Held That Petitioners’
Retained Counsel Was Efffective .............000ccceceee: 6

IV. The Court Below Used The Correct Standard in
Reviewing The Effectiveness of Petitioners’ Counsel .. 8

V. The Court Below Correctly Held That There Was No
Merit In Petitioners’ Claim of Jury Misconduct ...... i)

VI. The Court Below Correctly Held That The Trial
Court Did Not Err In Faili~g To Instruct The Jury
On A Defensive Theory of etorication ................ 10

VII. The Prosecutor Committed No Error In Arguing To
The Jury That “Probation Was A Privilege, and Not
SERIE. ddehdinsbaidndeiiaatstntiinbiismkapadanbinemsentaelic 12

-ii-
Page

VIII. The Prosecutor's Statement Concerning Petitioners
Failing to Testify Should Not Constitute Reversible
TED ucidiqcapmubibasbedeedsenasiwbegoesesstsoesvesseseannes 13

IX. The Trial Judge Correctly Charged The Jury on the
Conditions of Probation Which May Have Been

BND .ccitinscnndsccsubssdvvensinevscussedscobessesseseseode 15
GED Se nccceccececessecccvnessesessecsscusssssescseosesoqes 16
sg gk 8 rte 17
GET UE cividpinicasnccbscntecceveceseceessrsseesedesdsaneues A-1
BN ET sbcicctesniccccescoddtcossencescospsencessosesoueen B-1
RD bcc ckcitncegticccccssccscnvevccncccsscsesensoovaense C-1

ep a ce EE ee mee

-iii-
INDEX OF AUTHORITIES
CASES PAGE
Alvarez V. Estelle, 531 F.2d 1319 (5th Cir. 1976) ............... 14
Bergenthal v. Cady, 466 F.2d 635 (7th Cir.), cert.

is My I ands cc ccersndennsaneces 14
Brady v. Maryland, 373 U.S. 83 (1963) .................eeeeeeeeeees 6
Bryan v. Wainwright, 511 F.2d 644 (5th Cir.),

COTE, GE, Ge es Ge TEED whcccescccccccccccseccccccesccece ll
Cupp v. Naughten, 414 U.S. 141 (1973) ..................c cee eeee: 11
DeBerry v. Wolff, 513 F.2d 1336 (8th Cir.1975) ...............5. 1l
Finley v. United States, 271 F.2d 777 (5th Cir.)

CUTE, GES Ge HS ED Sednccccdheccccccccccccscccccesess: 4
Fitzgerald v. Esteile, 505 F.2d 1334 (5th Cir.) cert.

re I ns cansnooenss 7,8
Griffin v. California, 380 U.S. 609 (1965) ...............ccceeeeeees 6
Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974) ................ 7,8
Hinajas v. Black, 462 F.2d 621 (9th Cir.), cert.

TTT ee ae 10
Loud v. Estelle, No. 76-3042 ___F.2d_____ (5th

hs MR TEE iciicidinddatieandadibiatsadendicecsncces 5,13,16
Michael v. Eyman, 462 F.2d 626 (9th Cir. 1972) ................ 15
Morrissey v. Brewer, 408 U.S. 47 (1972) ........0.ccccccceceeceeees 12
Murphy v. Beto, 416 F.2d 98 (5th Cir. 1969) ..................... ii
Poole v. Fitzharris, 396 F.2d 544 (9th Cir. 1968) ............... 14

Scamardo v. State, 517 S.W.2d 293 (Tex.Crim.
cal Raita ss RES Sn Lea aaee 13

-iv-

CASES PAGE
United States v. Agurs, 427 U.S. 97 (1976) ............ccceeeeeeeees 5
United States v. Rodriquez, 498 F.2d 302 (5th Cir.

TT in 4, 380 U.S. 609 (1965). Petitioners
also assign error to defense counsels failure to call key
witnesses to establish diminished capacity to form the
specific intent necessary to commit burglary.

This case involved a guilty plea by both petitioners
with a jury chosen to assess punishment. The Texas
Court of Criminal Appeals correctly stated in its
affirmance that:

ra

“We have carefully examined the record and
Appellants numerous allegations and cannot
conclude that there was ineffective assistance
of counsel. This record does not support or
reflect any willful misconduct by an employed
counsel without Appellants’ knowledge which
amounts to a breach of a legal duty of an
attorney...even if we used the “reasonably
effective assistance” standard...we would reach
the same results.” (Appendix “A”)

As noted by the court below, the fact that other
counsel might have tried the case differently does not
show inadequate representation. United States v.
Rodriquez, 498 F.2d 302 (5th Cir. 1974).

Respondent contends Petitioners’ retained counsel
rendered reasonably effective assistance as required by
Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir.), cert denied
422 U.S. 1011 (1975). Failure to make a particular
objection may have been a result of trial strategy as well
as any other reasonable explanation. Certainly it does
not suffice to illustrate incompetence or ineffective
assistance. Similarly, trial counsel’s failure to call
expert witnesses on intoxication, in light of much trial
testimony that although the defendants had been
drinking they appeared coherent and mobile, fails to
rise to the level of ineffective assistance. Trial counsel’s
decision not to call expert witnesses could have been a
tactical move based on the expected benefit to be gained
from such testimony balanced against its cost to the two
young petitioners.

Reasonably effective assistance is an easier standard
to meet in the context of a guilty plea than in a trial.
Herring v. Estelle 491 F.2d 125, 128 (5th Cir. 1974). Here
Petitioners have made no claim that trial counsel failed
to ascertain if their plea was entered voluntarily and
knowingly. Neither do they claim that trial counsel

-8-

failed to actually and substantially assist them in
deciding whether to plead guilty. Herring, supra.
Petitioners’ disagreement with their retained counsel
on a guilty plea because of differences of opinions on
trial tactics, falls far short of a lack of fundamental
fairness or a failure to render reasonably effective
assistance.

IV.

THE COURT BELOW USED THE
CORRECT STANDARD IN REVIEWING
THE EFFECTIVENESS OF PETITION-
ERS’ COUNSEL.

Petitioners assert that the Texas Court of Criminal
Appeals used the wrong standard in reviewing the
effectiveness of their retained trial counsel. Petitioners
are troubled by language in the state court’s opinion
dealing with “willful misconduct” and “bad faith,
insincerity, or disloyaity toward Appellants by their
attorney.” See Appendix “A”.

Respondent answers that the Texas Court of Criminal
Appeals found trial counsel’s representation of
Petitioners to be adequate under two standards. The
Court below looked at the record under both a breach of
legal duty and a reasonably effective assistance
standard. In Fitzgerald v. Estelle, supra, the United
States Court of Appeals for the Fifth Circuit noted ina
footnote at 1337:

“Putting to one side the fact that the District
Judge had the right to and did determine in
denying the Motion for New Trial, that the
Defendants had not shown that they had had
any material witnesses who would have been
assistance to them and whose names they gave
to their trial counsel and that they had refused
to call them, we think it basic to the claim of

-9-

relief, since Defendants were represented by
their own employed trial counsel, they may not
assign as error that the mistakes or errors of
their counsel constituted unfair trial, and that,
without a showing of a deliberate purpose on the
part of counsel to prevent Defendants from
obtaining a fair trial, or actions so grossly
negligent as to amount to substantially the
same thing, Defendants cannot relieve
themselves of the errors, mistakes or
misjudgments of their counsel by having the
trial set aside.” (Emphasis added).

Based on the underscored language cited above, the
Texas Court of Criminal Appeals correctly reviewed the
record on appeal to determine if there were any
instances of willful misconduct by Petitioners’ attorney.
The Court below then examined the record to determine
if it would support a finding of reasonably effective
assistance in light of Petitioners’ numerous allegations
of ineffective representation. Under either test, the
Texas Court of Criminal Appeals correctly held that
Petitioners had adequate representation in the trial
court and were not deprived of either a fair trial or due
process of law.

V.

THE COURT BELOW CORRECTLY HELD
THAT THERE WAS NO MERIT IN
PETITIONERS’ CLAIM OF JURY
MISCONDUCT.

Petitioners give examples of three alleged acts of
misconduct by the jurors in their case which they claim
warrants reversal of their conviction: (1) discussing that
the defendants did not testify in their own behalf; (2)

-10-

talking to persons in the halls contrary to the court’s
instruction; (3) determining or potentially determining
the penalties assessed by lot or chance.

Respondent notes that there was no testimony at the
Motion for New Trial hearing from any of the jurors
that petitioners’ punishments were assessed by lot or
chance. Furthermore, although there was some
conflicting testimony as to whether or not the fact that
the defendants did not testify in their own behalf was
mentioned in the jury room, no juror testified that this
was ever discussed by the group as a whole or that the
defendants’ failure to testify had any substantial impact
on their decision.

——

The Texas Court of Criminal Appeals noted in its
affirming per curiam opinion on direct appeal from
conviction that most of the testimony of alleged jury
misconduct developed at petitioners’ hearing on their
Motion for New Trial was either contradictory to their
allegations or conflicting. The lower court also noted
that under Texas law when the evidence is conflicting as
to alleged jury misconduct, the ruling of the trial court
on the Motion for New Trial is ordinarilly conclusive for
appeal purposes. See Williams v. State 481 S.W.2d 119
(Tex. Crim. Ap. 1972).

Petitioners’ have failed to present this court with an
alleged error which raises a federal] question. An
allegation of jury misconduct does not rise to
constitutional dimensions. Hinajas v. Black, 462 F.2d
621 (9th Cir.), cert denied 409 U.S. 1126 (1973).

VI.

THE COURT BELOW CORRECTLY HELD
THAT THE TRIAL COURT DID NOT ERR
IN FAILING TO INSTRUCT THE JURY ON

eT

A DEFENSIVE THEORY OF INTOXICA-
TION.N.

Petitioners contend that the trial court should have
given an instruction to the jury of a defensive theory of
intoxication as mitigation of punishment under
V.T.C.A., Penal Code, Section 8.04 A, B, C and D.
(See Appendix “B”). This contention was rejected by the
Texas Court of Criminal Appeals which found that
there was no evidence raising the issue of temporary
insanity by reason of intoxication.

Respondent asserts that the Court below properly
applied the applicable Texas law when it held that in
order for an instruction to be given pursuant to Section
8.04 supra, it must be shown that as a result of
intoxication a Defendant (1) “does not know his conduct
is wrong,” or (2) “was incapable of confirming his
conduct to the requirements of the law he violated.”
Under Texas law, testimony in the record that a
Defendant was or may have been intoxicated is
insufficient to raise the issue of temporary insanity. See
Appendix “A”.

Moreover, allegations of improper jury instruction
raise no question of constitutional significance unless
the error resulted in a miscarriage of justice, as, for
example, in impermissibly shifting the burden of proof.
United States ex rel. Standridge v. Zelker, 514 F.2d 45,
50 (2nd Cir. 1975), cert. denied 423 U.S. 872 (1975),
citing Cupp v. Naughten, 414 U.S. 141 (1973);
DeBerry v. Wolf, 513 F.2d 1336 (8th Cir. 1975),
Bryan v. Wainwright, 511 F.2d 644 (5th Cir.), cert.
denied, 423 U.S. 837 (1975); Young v. Alabama, 443 F.2d
854 (5th Cir.), cert denied, 405 U.S. 976 (1972); and
Murphy v. Beto, 416 F.2d 98 (5th Cir. 1969). The failure
to charge the jury on the ground presented in this
petition is a matter of state law and raises no federal

-12-
constitutional question.
VII.

THE PROSECUTOR COMMITTED NO
ERROR IN ARGUING TO THE JURY THAT
“PROBATION WAS A PRIVILEGE, AND
NOT A RIGHT”.

Petitioners complained that during this final
argument, the prosecutor told the jury:

“You don’t have to give probation. They asked
for it. It’s a right they have under the statutes.
But because they asked for it, don’t be mislead
and believe you have to give it to them. It isa
privilege; not a right.”

Petitioners incorrectly argue that Morrissey v.
Brewer, 408 U.S. 47(1972) held that due process must be
afforded in parole proceedings on the grounds that
parole was a privilege rather than a right. Analogzing
to Morrissey v. Brewer, Petitioners then incorrectly
assert that probation is a right, not a privilege under
Texas law. However, Petitioners have misinterpreted
the holdings of Morrisesey v. Brewer. Morrissey v.
Brewer did not hold that parole (or by analogy,
probation) was a matter of right and not a privilege.
Rather, Morrissey v. Brewer explained that it is no
longer useful to consider questions of possible due
process deprivations in terms of whether something is a
“right” or “privilege”.

However, even acorrect interpretation of Morrissey v.
Brewer is irrelevant to Petitioner’s complaint.

Furthermore, in the context of the prosecutors
argument, his statement was correct. According to
Texas statutory law, the recommendation of probation

-13-

by a jury, or the granting of a probation of sentence by
the trial judge, is a matter of discretion. Article 42.12,
Sections 3, 3a, 3b, 3c V.A.C.C.P. Similarly, Texas case
law also holds that probation is not granted as a matter
of right. See, Seamardo v. State, 517 S.W.2d 293 (Tex.
Crim. Ap. 1974).

Petitioners assign error to the prosecutor’s argument
that “probation was a privilege, not a right.” However,
Petitioner did not raise this ground on direct appeal
from conviction. See, Appendix “A”. Their failure to do
so constitutes an inexecusable procedural default
barring relief in the instat Petition for Writ of
Certiorrair. Wainwright v. Sykes, supra; Loud v. Estelle,
supra.

VIII.

THE PROSECUTOR’S STATEMENT
CONCERNING PETITIONERS’ FAILING
TO TESTIFY SHOULD NOT CONSTITUTE
REVERSIBLE ERROR.

During his final argument to the jury, the state’s
attorney said:

“They’re not little kids as Mr. Moreau has
referred to them, and I hope you have been
observing their appearances while they have
been tried for very serious cases. They could go
to the Texas Department of Corrections. Have
they appeared to be too worried to you as they
sat here at the table and listened to all of this?
They probably think they are going to walk on
probation, and nothing they’ve said.”

“You might have wondered why I!
introduced...”

-14-

Respondent agrees that it is error for a prosecutor to
comment on a defendant’s failure to testify. However,
Respondent disagrees with petitioners’ contention that
the argument before this court warrants reversal of
their conviction for two reasons.

First, the prosecutor’s argument is ambiguous and
unclear at best. The record does not reflect any objection
or interruption that would explain the district
attorney’s failure to complete the complained of
sentence. On the face of the record, the thrust and
meaning of the prosecutor’s argument is uncertain.

It is Respondent’s position that error, if any, in the
prosecutor’s statement was clearly harmless error. The
harmless error rule may be applied even in a case such
as the one before us where the error is possibly one of
constitutional dimension. Vaccaro v. United States 461
F.2d 626 (5th Cir. 1972). The instant case involves a
guilty plea; the sole function the jury was to perform was
an assessment of punishment. In determining whether a
complained of jury argument violated federal due
process of law, the argument must be “so prejudicial
that the appellant’s state court trial was rendered
fundamentally unfair within the meaning of the due
procees clause of the Fourteenth Amendment.” Alvarez
vy. Estelle, 531 F.2d 1319, 1323 (5th Cir. 1976). See
Bergenthal v. Cady, 466 F.2d 635 (7th Cir.), cert denied,
409 U.S. 1109 (1973). Certainly under any
interpretation of the argument it is impossible to
conclude that the complained of argument, made in the
context of a punishment hearing, caused Petitioners to
suffer harm of that magnitude.

Additionally, defense counsel’s failure to object to the
prosecutor’s statement as a matter of trial tactic, was
sufficient to waive the error. Poole v. Fitzharris, 396
F.2d 544 (9th Cir. 1968).

-15-
IX.

THE TRIAL JUDGE CORRECTLY
CHARGED THE JURY ON THE
CONDITIONS OF PROBATION WHICH
MAY HAVE BEEN IMPOSED.

Petitioners complain that the trial court charged the
jury:

“The conditions of probation which this court
may impose should be limited to but shall not
necessarily include all the following:

(1) that he commit no offense against the
laws of this state or of any other state or
of the United States. (Record on Appeal:

Arguments to the Jury, page 4, lines 10-
14.)”

It is Petitioners’ unique argument that this charge
when coupled with the “law and order” arguments of the
prosecutor, would leave the jury the impression that if
the trial court chose not to include this condition of
probation, then the Defendants could commit other
crimes and not face probation revocation despite the
seriousness of the crime subsequently committed.

Respondent answers that the trial court’s charged
directly tracted the six statutory provisions of Article
42.12, Section 6, V.A.C.C.P. (attached hereto as

Appendix “C”) which may be included as terms and
conditions of probation.

Respondent further notes that even had the
instruction been error under state law, the giving of a
bad instruction presents no federal question. Michael v.
Eyman, 462 F.2d 626 (9th Cir. 1972).

-16-

Petitioners claim fundamental error in the trial
judge’s instruction to the jury on the terms and
conditions or probation which could have been imposed.
Petitioners did not raise this ground on their direct
appeal from conviction. See Appendix “A”. Their failure
to do so bars them from asserting this claim for the first
time on this Petition for Writ of Certiorari. Wainwright
v. Sykes, supra.

CONCLUSION

For the reasons stated above, Respondent-Anpellee
avers that there has been no denial of Petitioners’
constitutional rights. The Petition for Writ of Certiorari
should be denied.

Respectfully submitted,

JOHN L. HILL
Attorney General of Texas

DAVID M. KENDALL
First Assistant Attorney General

JOE B. DIBRELL
Assistant Attorney General
Chief, Enforcement Division

CATHERINE E. GREENE
Assistant Attorney Genera!

P.O. Box 12548, Capitol Station
Austin, Texas 78711

Attorneys for Respondent

-}7-
PROOF OF SERVICE

I, JOE B. DIBRELL, Assistant Attorney General of
Texas and a Member of the Bar of this Court, hereby
certify that a copy of Respondent’s Brief in Opposition
has been served by placing same in the United States
Mail, postage prepaid, certified, return receipt
requested, this ___. day of November, 1977, addressed
to Attorneys for Petitioners, Mr. Roger S. Hanson, 518
South Broadway, Santa Ana, California 92701; Mr. Ray
Gene Smith, 301 Wichita Falls Savings Building,
Wichita Falls, Texas and Mr. Scott W. Hudson, 1318
Mercantile Bank Bldg., Dallas, Texas 75201.

Joe B. Dibrell
Assistant Attorney General

APPENDIX A

SIMMIE LYNN McCALL and
BILLY DON MILLS, Appellants

NOS 54,266 and 54,267, v.
THE STATE OF TEXAS, Appellee
Appeals from Wichita County
OPINION

These are appeals from convictions for the offense of
burglary of a building in Cause No. 16792-C and
burglary of a motor vehicle in Cause No. 16874-C.
Pursuant to appellants’ vritten request the two causes
were tried together before a jury upon a plea of guilty.
Punishment was assessed in each case at ten years.

Initially appellants contend that they failed to receive
a fair trial because of ineffective assistance of their
retained counsel in the trial court.

The constitutional right to counsel, whether counsel
be appointed or retained, does not mean errorless
counsel whose competency or adequacy of his
representation is not to be judged ineffective by
hindsight. Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.
1976); see also, Duran v. State, 305 S.W.2d 863
(Tex.Cr.App. 1974).

The adequacy of an attorney’s services must be
gauged by the totality of the representation. Ex parte
Prior, supra; Williams v. State, 513 S.W.2d 54
(Tex.Cr.App. 1974); Coble v. State, 501 S.W.2d 344
(Tex.Cr.App. 1973). The allegations of ineffective
representation will be sustained only if they are firmly
founded. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.
1974). Effectiveness of retained counsel must be gauged
by whether or not there is a breach of legal duty. Ex

A-2

parte Raley, 528 S.W.2d 257 (Tex.Cr.App. 1975), and
cases cited therein.

As this Court wrote in Chapman v. State, 478 S.W.2d
91 (Tex.Cr.App. 1972):

“complaints of ineffective counsel must be
examined in light of what the Court said in
Williams v. Beto, 354 F.2d 698 (5th Cir): ‘as no
two men can be exactly alike in the practice of
the profession, it is basically unreasonable to
judge an attorney by what another would have
done, or says he would have done, in the better
light of hindsight.’ ”

An attorney must appraise a case and do the best he
can with the facts and the fact that other counsel might
have tried the case differently does not show inadequate
representation. Ex parte Prior, supra. See Rockwood v.
State, 524 S.W.2d 292 (Tex.Cr.App. 1975), and Witt v.
State, 475 S.W.2d 259 (Tex.Cr.App. 1971). See also,
United States v. Rodriguez, 498 F.2d 302 (5th Cir. 1974).

We have carefully examined the record and
appellants’ numerous allegations and cannot conclude
there was ineffective assistance of counsel. This record
does not support or reflect any wilful misconduct by an
employed counsel without appellants’ knowledge which
amounts to a breach of the legal duty of an attorney.
Trotter v. State, 471 S.W.2d 822 (Tex.Cr.App. 1971).
Even if we used the “reasonably effective assistance”
standard of Ex parte Gallegos, 511 S.W.2d 510
(Tex.Cr.App. 1974), we would reach the same result.

Nothing appears in the record to show any bad faith,
insincerity or disloyalty toward appellants by their
attorney. A good faith error or mistake, if any, made by
retained counsel with honest and earnest purpose to

A-3

serve his client cannot be the basis of a claim of
reversible error. Mills v. State, 483 S.W.2d 264
(Tex.Cr.App. 1972); see also, Popeko v. United States,
294 F.2d 168 (5th Cir. 1961).

We find that appellants had adequate representation
in the trial court. Nor do we conclude that appellants
have been deprived of a fair trial or due process of law.

Next, appellants contend that the trial court erred in
failing to grant their motion for new trial because of
alleged jury misconduct.

Appellants do not cite any authority or present any
argument but merely set out part of the testimony of one
of eight jurors who testified at the hearing on their
motion for new trial. While this ground of error is not in
compliance with Article 40.09, Section 9, V.A.C.C.P.,
we have reviewed the voluminous testimony heard at
the hearing and hold that this contention is without
merit. The decision of the trial court on passing upon a
motion for new trial will not be disturbed by this Court
in the absence of an abuse of discretion. Powell v. State,
502 S.W.2d 705 (Tex.Cr.App. 1973). The testimony
solicited appears to be an attempt by appellants to
develop the mental processes of the jury in arriving at
the punishment assessed. This is not allowed. Peak v.
State, 522 S.W.2d 907 (Tex.Cr App. 1975). In fact, most
of the testimony is contradictory to appellants’
allegations and even conflicting in the juror’s testimony
set out in their brief as well as the others. Where the
evidence is conflicting as to alleged jury misconduct, the
ruling of the trial court on the motion for new trial is
ordinarily conclusive on appeal. Williams v. State, 481
S.W.2d 119 (Tex.Cr.App. 1972).

Appellants’ third ground of error complains of the

A-4

admission into evidence during the punishment stage of
the trial.

No authority is cited nor is any argument made in
support of this ground of error. Since this ground of
error is not in compliance with Article 40.09, Section 9,
supra, nothing is presented for review. Williams v.
State, 504 S.W.2d 477 (Tex.Cr.App. 1974).

Their next complaint is directed toward the trial
court’s failure to give an instruction to the jury on
mitigation of punishment by reason of intoxication in
accordance with V.T.C.A., Penal Code, Section 8.04,
subsections A, B, C, D and E.

We find no evidence raising the issue of temporary
insanity by reason of intoxication. The mere fact that
there is testimony that appellants were or may have
been intoxicated is insufficient. For an instruction
pursuant to Section 8.04, supra, it must be shown that an
appellant as a result of intoxication (1) “not know his
conduct is wrong”, or (2) “was incapable of conforming
his conduct to the requirements of the law he violated.”
Hart v. State, 537 S.W.2d 21 (Tex.Cr.App. 1976). His
contention is overruled.

Lastly then complain of improper jury argument by
the prosecutor. The record reflects that no objection was
made to the complained of comments. Absent an
objection, nothing is presented for review.

No reversible error having been shown, the
judgments are affirmed.

Per Curiam

(Delivered May 18, 1977)

APPENDIX B
V.T.C.A., Penal Code
§ 8.04. Intoxication

(a) Voluntary intoxication does not constitute a
defense to the commission of crime.

(b) Evidence of temporary insanity caused by
intoxication may be introduced by the actor in
mitigation of the peiialty attached to the offense for
which he is being tried.

(c) When temporary insanity is relied upon as a
defense and the evidence tends to show that such
insanity was caused by intoxication, the court shall
charge the jury in accordance with the provisions of this
section.

(d) For pusposes of this section “intoxication” means
disturbance of mental or physical capacity resulting
from the introduction of any su¥stance in the body.

APPENDIX -C
V.A.C.C.P., Art. 42.12

Sec. 6. The court having jurisdiction of the case shal]
determine the terms and conditions of probation and
may, at any time, during the period of probation alter or
modify the conditions: provided, however, that the clerk
of the court shall furnish a copy of such terms and
conditions to the probationer, and shall note the date of
delivery of such copy on the docket. Terms and
conditions of probation may include, but shall not be
limited to, the conditions that the probationer shall:

a. Commit no offense against the laws of this State or
of any other State or of the United States;

b. Avoid injurious or vicious habits;

c. Avoid persons or places of disreputable or harmful
character;

d. Report to the probation officer as directed;

e. Permit the probation officer to visit him at his
home or elsewhere:

f. Work faithfully at suitable employment as far as
possible;

g. Remain with a specified place;

h. Pay his fine, if one be assessed, and all court costs
whether a fine be assessed or not, in one or several sums,
and make restitution or reparation in any sum that the
court shall determine; and

i. Support his dependents.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2401%3A2. Public record. Not legal advice.