ALEX JOSEPH ROY, JR.,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00519-CR
 
ALEX JOSEPH ROY, JR.,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES WHITHAM, LAGARDE AND KINKEADE
OPINION BY JUSTICE LAGARDE
AUGUST 21, 1989
        Alex Joseph Roy, Jr. appeals from his conviction by a jury for aggravated robbery. The jury assessed punishment, enhanced by two prior felony convictions, at ninety-five years imprisonment. In three points of error, Roy asserts that the trial court erred: (1) by permitting an expert witness to testify regarding the voluntariness of Roy's confession; (2) by allowing the prosecutor to ask an inflammatory question injecting "extraneous circumstances in the trial;" and (3) by failing to suppress Roy's confession; and in point of error four, Roy asserts that there was insufficient evidence to convict him of aggravated robbery as charged in the indictment. We disagree with each of Roy's points, and affirm.
        The record in this case, viewed in the light most favorable to the verdict, shows that Roy and an accomplice, Rodney Blakey, entered into an agreement to "burglarize" a residence at 314 Lane Street in Mesquite, Texas. The occupants of the residence were an elderly woman, Edith King, and her brother, Art Wadlund, who was confined to a wheel chair. Blakey was King's grandson and Wadlund's grandnephew. King was seventy-eight years old, five feet tall, and weighed eighty-two pounds; Wadlund was seventy-four years old.
        Roy and Blakey had been using methamphetamine prior to the offense and initiated the "burglary" to obtain funds to buy more drugs. After making the decision to "burglarize" the residence, Roy and Blakey waited outside until they believed that the victims were asleep. Wearing stocking masks, they then pried open a window with a tire tool to gain entrance. After entering and finding King still awake, either Roy or Blakey began beating her with the tire tool. Blakey and Roy then went into Wadlund's room, and Roy beat him with the tire tool while Blakey stole Wadlund's wallet. As they fled, Roy ripped the phone from the wall. Wadlund then wheeled himself to the front door and yelled for help. A neighbor, Diana Hicks, heard Wadlund yelling and called the police.
        When the police arrived at the scene, they administered first aid to King and Wadlund. Wadlund identified Blakey as one of their attackers, and after being transported to the hospital, King seemed to indicate that Blakey was the one who actually struck her. However, she was seriously injured and may simply have been identifying the attacker she was able to recognize instead of the attacker who actually beat her, because, at the scene of the robbery, she told Hicks that "they hit me." Consequently, it is not clear from King's statements whether Roy or Blakey, or both Roy and Blakey struck her. Unfortunately, she died from the injuries received in the attack before she could clarify the issue of who actually struck her.
        At trial, however, Wadlund testified, in part, as follows:
    Q    All right. Could you describe these two men to us as best you can for the jury?
 
    A    One was tall, six feet two, lanky build, and one was shorter.
 
    Q    And the tall one, the taller one, is he the one that you realized who it was?
 
    A    Yes, Rodney Blakey.
 
    Q    Your sister's grandson?
 
    A        Yeah -- yes.
 
    . . . .
 
        Q         And what was the shorter one doing while the                 grandson, her grandson was taking money out of your                 dresser drawer?
 
    A    He was hitting me over the head with that tire tool, lug wrench.
 
    . . . .
 
    Q    And the shorter of the two men, you said, he had what appeared to be a tire tool in his hand?
 
    A    Yes, he did.
 
    Q    And did he say anything to you as he started hitting you with the tire tool?
 
    A    Yes, he said, "Now I'm going to kill you, old man."
Wadlund further testified that the shorter man, Roy, pulled the phone from the wall as the attackers were leaving.
        After the State rested its case in chief, Roy testified in his own behalf and admitted that he and Blakey were the two masked "burglars." He also admitted that Blakey was six feet two inches tall. Roy's pen packet, on the other hand, revealed that Roy was only five feet nine inches tall. Roy agreed that the five inch difference in height between him and Blakey is noticeable to any reasonable person. Furthermore, at trial, Roy confessed to planning and executing the "burglary," supplying the tire tool used in the assault, and providing the "getaway" car.
        Roy's written confession that was admitted into evidence and read to the jury states, in part:
 
 
        My name is Alex Joseph Roy, Jr. I have asked Officer Robinson to write this because I am nervous and I don't think I could write it now. This is the first day that I met Rodney. We were just talking about getting a bump of crystal. We rode out to Grand Prairie to see if we could find someone to front us one or trade for a weedeater. We got the runaround out there. On the weedeater we got half a gram of crystal for a camera, and cash that he had. We done the half but we did not get off that good. It wasn't very good stuff. On the way back he, Rodney, kept telling me about Art. He said he always had seven hundred dollars in the wallet he had. He said that he had robbed them once before. He said that they had been robbed twice other than that. He said one of those times he know who done it, but the other he didn't. He said that he had set up another time for a friend. He said he got them out of the house, got the keys to the house from his grandmother, and told her he should lock the door. He left the door unlocked for the guy but the guy never done it.
 
        When we got back he called me outside and talked about going over there. He said Pattie could watch the woman and I could watch the man and he would get the safe and the wallet. Pattie didn't want to do it. So he traded a Savage Pump 12-gauge to one of the guys there for another half gram. He wanted to get wired before we went over there. We did the half gram. He said we could do it by ourselves. He said it would be better that way anyway. So then we took off over.
 
        We parked the car where that street deadends that crosses the street where they lived. We parked by the stop sign facing Galloway. We walked back behind their house by the hedges. There is a little trail that goes next to the neighbor's fence. It runs right into their back-yard. We went and looked at the back window. The light was still on. He went up and looked and he said he didn't see no one in there. The neighbors' dogs were barking. They came outside. We heard someone on the porch next door. He said it would be better if we waited for it to cool down and everyone went to sleep. So we went back into the hedges by that shed that is right behind that little business. We sat there and smoked some cigarettes and waited for a while.
 
        Then he was talking about what he was going to do. He was going to get the window open and crawl in. He was going to jerk the cord out of the phone on the way in to [sic] Art's room. He wanted me to go in after he got in and go to her room. If she woke up I was to put my hand over her mouth to keep her from hollering.
 
        He went up there and I heard the window opening. He was supposed to holler for me when he got the window open. I did not hear him holler but I heard him going through the window. I went up and started going through the window. I heard her yell, "Art". I saw him hit her with the tire tool. She slumped down in the chair. Before I even got through the window he had jerked the cord from the phone. He went in to the man's room and said, "Where is the light, old man?" Then he hit him with the tire tool. I don't know how many times.
 
        Then he said, 'Where is the money?' I turned the light on and saw Art. He hit him a couple of more times. He grabbed the safe and picked it up. All the money fell out. That is when he got the wallet. I think it was on the chest of drawers. He said something like: Fuck it, I got the wallet, let's go. He went out the window and I dove out behind him. Sometime about then I tore the socks off my hands and the mask stocking off and left them. We ran back to the car.
 
        We drove to the apartments. We got out of the car, went into the bathroom of the apartment to see how much money we had. He put the socks he had on his hands on the back of the toilet. I told him to get rid of them but he told me that he would keep them. There was only $60.00 in the wallet. There were actually two wallets. He cut them up and tried to flush them down the toilet but they would not flush. He set the pieces down. He went next door to pay the guy and get the shotgun back. He gave them $40.00 and gave someone else $20.00 for another quarter gram.
 
        He came back to the house, gave one of the girls the title to his car which was in the pound and a pawn ticket for a color TV. We went and put the gun in the trunk of the car. The girls left. Kathy was supposed to drive. They left and were supposed to go trade that for some crystal. We played some Spades. I went to the bathroom. This is when his dad came over. After his dad got through telling him what had happened, he left. He sat down a little bit. You all knocked on the door. I went and laid down and he came got me. That is when you asked us to come down here, and we did.
        At trial, Roy admitted that everything contained in the written confession was true and correct except: (1) the part where it said that Blakey had robbed his grandmother and granduncle once before should be changed from robbed to "burglarized;" (2) Roy didn't remember the part where it said, "He [Blakey] said Patti could watch the woman;" (3) Roy didn't remember the part where it said, "If she woke up I was to put my hand over her mouth to keep her from hollering;" and (4) the part of the confession stating "[w]e played some spades" was incorrect because Roy and Blakey only "acted" like they were playing spades. Roy admitted that aside from those four minor things, everything contained in the confession was "true and correct."
        While elaborating on the statements in his written confession, Roy denied that he in any way anticipated that the two elderly residents would be injured. He also claimed that Blakey was the one who beat both King and Wadlund and pulled the phone off the wall. Roy stated that he turned the light on in Wadlund's room only in an attempt to pacify Blakey, who was angry because he could not find the light switch. He asserted that by turning on the light, he was attempting to keep Blakey from beating Wadlund.
        After Roy testified, the defense called        Dr. James P. Grigson, a psychiatrist, who testified that he had examined Blakey. During the examination, Grigson said that Blakey claimed to have been the one who struck his grandmother and granduncle with the tire tool. Grigson also testified that Blakey was a severe sociopath and that an individual such as Roy could not anticipate Blakey committing acts of violence against his own family members. During cross-examination of Dr. Grigson, the State described Roy's confession in the form of a hypothetical. Dr. Grigson stated that the confession sounded like it came from "an individual that is trying to save [himself] and projecting blame on others."
        The defense also called Diana Lynn Andrews, Roy's sister. On direct examination, she stated that Roy was not a violent person; however, on cross-examination, she admitted calling the prosecutor to tell him that blood found on Roy's jeans and boots following the robbery could have been from a fight that he had been in the night before the robbery. With these facts in mind, we will now address Roy's four points of error.
        In his first point, Roy complains that the trial court erred in allowing Dr. Grigson to testify regarding the voluntariness of a "hypothetical" confession. FN:1 After the State set forth the facts in the hypothetical, the following exchange occurred:
    Q    (By Mr. Scott) And my question to you is: Did he -- is this hypothetical individual the type of person who signed that statement only because of the threats or because he was trying in some warped way to save his own guilty neck?
 
        MR. HENRICHS: Judge, we would object to that question.
 
        THE COURT: On what grounds?
 
        MR. HENRICHS: It puts the psychiatrist in the position of answering the jury issue on the question of voluntariness of the confession and, we would submit, although Dr. Grigson is eminently qualified as a psychiatric expert, this is not the type of issue he should be required to answer in front of the jury.
 
        THE COURT: Are you familiar with Rule 703?
 
        MR. HENRICHS: Hopefully, Your Honor.
 
        THE COURT: What do you have to say about that?
 
        MR. HENRICHS: Can I get a copy?
 
        THE COURT: It has to do with Rule 704, testimony in the form of opinion or inference otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact --
 
        MR. HENRICHS: I'm familiar with that, Judge, but I think this is not the ultimate issue but it's the issue on the voluntariness of the confession.
 
        THE COURT: If it applies to an ultimate issue, how much more so than one that is not the ultimate issue?
 
        MR. HENRICHS: I would still object.
 
        THE COURT: I will overrule it on that ground.
 
    Q    (By Mr. Scott) Is this an individual who signs, this two-time ex-con hypothetical individual who cratered in because of some officer who allegedly said: "If you don't sign it, it will be real bad on you, and if you do sign it, we will tell the Court that you cooperated and he will go light on you" or is this an individual who is signing it because he's attempting to save his own guilty neck?
 
        THE COURT: Can you give an opinion on that?
 
        THE WITNESS: Yes, I have an opinion.
 
    Q    (By Mr. Scott) I don't mean to put words in your mouth but just tell the jury in your own words what type of individual we're dealing with.
 
    A    I think that it would be an individual that is trying to save themself and projecting blame on others.
 
        MR. SCOTT: That is all I have.
As the above excerpt reveals, Roy's attorney apparently objected to Grigson's testimony on the grounds that it invaded the province of the jury. FN:2 However, under rule 704 of the Texas Rules of Criminal Evidence, experts may offer opinions on ultimate issues of fact. FN:3 Furthermore, the objection of "invading the province of the jury" has long since lost any significance. FN:4 Gonzales v. State, 756 S.W.2d 413, 417 (Tex. App.--El Paso 1988, pet. ref'd). TEX. R. CRIM. EVID. 704. Testimony by experts is now governed by rule 702 of the Texas Rules of Criminal Evidence. That rule states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." TEX. R. CRIM. EVID. 702. The decision to admit or exclude opinion testimony will not be disturbed unless a clear abuse of discretion is shown. Steve v. State, 614 S.W.2d 137, 139 (Tex. Crim. App. 1981); Mullins v. State, 699 S.W.2d 346, 348 (Tex. App.--Corpus Christi 1985, no pet.).
        Roy states that it is improper to allow opinion evidence of a defendant's guilt or innocence because it is a legal conclusion, and he implies that there is some analogy between an expert's opinion at the guilt-innocence phase of trial, and an expert's opinion on the voluntariness of a confession. We disagree. We acknowledge the rule that an expert can testify on an ultimate issue of fact, but may not state a legal conclusion. See Hopkins, 480 S.W.2d at 218-19; see also Mays v. State, 563 S.W.2d 260, 263 n. 3 (Tex. Crim. App. 1978). In this case, however, the voluntariness of the confession was an ultimate issue of fact. The jury, pursuant to article 38.22 of the Texas Code of Criminal Procedure, was instructed on the voluntariness of Roy's confession. The instruction reads as follows:
        You are instructed that under our law a confession of a defendant who was in jail or other place of confinement or in the custody of an officer shall be admissible in evidence if it appears that the same was freely and voluntarily made without compulsion or persuasion. So, if you find from the evidence, or if you have a reasonable doubt thereof, that prior to the giving of the statement by the defendant, if he did give one, any officer threatened the defendant or in any manner coerced the defendant or used any improper influence on the defendant, and the defendant, through fear or under duress or under any other improper influence was thereby induced to sign said statement, then such statement would not be freely made and voluntary, and in such case, if you find the facts so to be, or if you have a reasonable doubt thereof, you will wholly disregard the alleged confession or statement and not consider it for any purpose nor any evidence obtained as a result thereof.
We hold that the issue of the voluntariness of the confession was an ultimate issue of fact for the jury, and further hold that the trial court did not abuse its discretion in allowing the expert opinion testimony of Dr. Grigson. Prior to the admission of Dr. Grigson's testimony, Roy had admitted before the jury that, with minor exceptions, the statements contained in his confession were essentially accurate. Furthermore, Dr. Grigson had testified, without objection, to Blakey's statements to him, which statements parallel Roy's version of the events. Consequently, even assuming, arguendo, that the expert opinion testimony constituted error, we hold, beyond a reasonable doubt, that the error made no contribution to Roy's conviction or to his punishment. See TEX. R. APP. P. 81(b)(2). For these reasons, we overrule Roy's first point of error.
        In his second point of error, Roy claims that the prosecutor was permitted to ask an improper and inflammatory question during the cross-examination of Roy that injected extraneous circumstances into the trial. The prosecutor questioned Roy, in pertinent part, as follows:
    Q.    You never told anybody that they had better pack their bags and get out of town because you were going to look them up when you got out of prison?
 
    A.    No, sir.
 
        MR. HENDRICKS: We would object to the question and ask that the jury be instructed to disregard.
 
        THE COURT: This is cross-examination -- I will sustain the objection and the jury is instructed to disregard the last question.
Assuming, arguendo, that the question was error, it is well settled that error in asking an improper question or in admitting improper testimony may be cured or rendered harmless by an instruction to disregard. See Guzman v. State, 697 S.W.2d 404, 408 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1090 (1986); Sheppard v. State, 545 S.W.2d 816, 818 (Tex. Crim. App. 1977). An exception to this rule is only made in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury. Guzman, 697 S.W.2d at 408; White v. State, 444 S.W.2d 921, 922 (Tex. Crim. App. 1969). This case is not so extreme as to be incurable. We overrule Roy's second point of error.
        In his third point of error, Roy claims that the trial court erred in failing to suppress Roy's confession. In conformity with Jackson v. Denno, 378 U.S. 368 (1964), the trial court held a hearing to determine the voluntariness of Roy's confession. See TEX. CODE CRIM. PROC. ANN. art. 38.22(6) (Vernon 1979). Roy testified at the hearing that his confession was not voluntary because he was on drugs and the police promised to go easier on him if he confessed and harder on him if he did not. However, Ronald Robinson, the police officer who took Roy's confession, testified in detail regarding the circumstances surrounding the confession. Robinson also testified regarding Roy's sober and cooperative demeanor before, during, and after the confession. Based on these facts, Robinson concluded that Roy's confession was voluntary. Robinson also denied promising Roy leniency if he confessed and threatening him with harsher punishment if he did not confess.
        The trial judge is the sole finder of fact at a Jackson v. Denno hearing; he is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. FN:5 Aranda v. State, 736 S.W.2d 702, 706 (Tex. Crim. App. 1987); Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982). Based on the conflicting testimony from Roy and the police officer and the judge's role as the sole judge of the credibility of the witnesses, we hold that the trial court did not err in admitting Roy's confession. See Rumbaugh, 629 S.W.2d at 752. We overrule Roy's third point of error.
        Finally, in Roy's fourth point of error, he contends that there was insufficient evidence to find him guilty of the offense of aggravated robbery as charged in the indictment. FN:6 Specifically, Roy claims that the evidence was insufficient to show that he caused serious bodily injury to Edith King by striking her on the head with a blunt object. Roy asserts that he only intended to burglarize the house and never intended to inflict injury on the people inside. He further claims that he did not strike the victims himself nor did he intend for or anticipate that Blakey would strike the victims. Thus, according to Roy, the circumstantial evidence is insufficient to show that Roy was guilty of aggravated robbery as alleged. FN:7 We disagree.
        The trial court charged the jury on the law of parties, both in the abstract and in the application paragraph. FN:8 As a result, the State was only required to show that Roy acted with intent to promote or assist in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in the commission of the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 1974).
        In deciding a sufficiency of the evidence question on appeal, the familiar standard is whether, after viewing the evidence in the light most favorable to the prosection, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Castillo v. State, 739 S.W.2d 280, 287 (Tex. Crim. App. 1987), cert. denied, 108 S. Ct. 2889 (1988), citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard for review is the same in both direct and circumstantial evidence cases. Castillo, 739 S.W.2d at 287. In a circumstantial evidence case, if there is a reasonable hypothesis other than the guilt of the accused, then it cannot be said that guilt has been shown beyond a reasonable doubt. See Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). However, the rules of circumstantial evidence do not require proof to a moral certainty that the circumstances presented actually exclude every hypothesis other than the guilt of the accused; it must only exclude every reasonable hypothesis raised by the evidence that would tend to exculpate the accused, and it is enough that the conclusion of guilt is warranted by the combined and cumulative force of all the incriminating evidence. See Brandley v. State, 691 S.W.2d 699, 703 (Tex. Crim. App. 1985). Moreover, we are entitled to look to the facts most favorable to the jury's verdict. See Thompson v. State, 697 S.W.2d 413, 416 (Tex. Crim. App. 1985).
        In determining whether an individual is a party to an offense and bears criminal responsibility, the court may look to events occurring before, during, and after the commission of the offense. See Freeman v. State, 654 S.W.2d 450, 453 (Tex. Crim. App. 1983); Wygal v. State, 555 S.W.2d 465, 468-69 (Tex. Crim. App. 1977); Izaguirre v. State, 695 S.W.2d 224, 228 (Tex. App.--Corpus Christi 1985, no pet.). Participation in a crime may be inferred from the circumstances and need not be shown by direct evidence; circumstantial evidence may be sufficient to show that one is a party to the offense. Freeman, 654 S.W.2d at 454. See Beier v. State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985); Wygal, 555 S.W.2d at 469. Evidence is sufficient to convict the defendant under the law of parties where the defendant is physically present at the commission of the offense and encourages the commission of the offense by words or other agreement. Beier, 687 S.W.2d at 3; Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim. App. 1978). A jury can find that an agreement to rob arose contemporaneously with the event itself, such that any solicitation, encouragement, direction, aid, or attempt to aid rendered at that time would still have been with intent to promote or assist the commission of the offense. Mayfield v. State, 716 S.W.2d 509, 517 (Tex. Crim. App. 1986).
        Furthermore, it is clear that, when two people act together in pursuit of an unlawful act, each one is liable for collateral crimes, even though unplanned or unintended, if those crimes are a foreseeable, ordinary and probable consequence of the preparation or execution of the unlawful act. See Curtis v. State, 573 S.W.2d 219, 223 (Tex. Crim. App. 1978). See, e.g., Thompson v. State, 514 S.W.2d 275, 276 (Tex. Crim. App. 1974).
        Applying the above standards to the facts of this case, we conclude that there is sufficient evidence from which the jury, acting rationally, could have found that Roy was a party to the offense. Roy, by his own admission, willingly participated in planning and initiating the burglary of the victims' premises. In his confession, Roy stated that Blakey claimed to have robbed these people before, so a jury could infer that Roy knew that robbery was a possibility. Wadlund stated that Roy had the tire tool and struck him with it; although there is no direct evidence that Roy struck King with the tire tool, a rational trier of fact could certainly infer that Roy was also the one who struck King.
        There is also no evidence of probative value to suggest that Roy, by words or actions, ever attempted to stop any of the violent conduct from occurring. Roy claims that he turned the light on in Wadlund's bedroom to keep Blakey from beating Wadlund. Wadlund, however, testified that Roy was the one actually beating him. In addition, Roy never made any apparent attempt to leave the scene during the beatings. Wadlund testified that, after the assaults, Roy also ripped the phone from the wall. Roy also admitted supplying the tire tool and providing the vehicle used to flee the scene.
        It is inconceivable to us that Roy could plan and agree to participate in the "burglary" of a residence, knowing that the residence is occupied at the time by two people who had been robbed by Blakey before, without anticipating, as an ordinary, foreseeable, and probable consequence of the agreed unlawful conduct, that violence, harm, or even death could occur to the victims or to the criminal actors. The fact that Blakey was related to the victims and, consequently, easy for the victims to identify, makes violence and even death more, as opposed to less, likely.
        Under the indictment, as incorporated into the court's charge in this case, the essential elements of aggravated robbery that the State was required to prove were that: (1) a person; (2) in the course of committing a theft; (3) with the intent to obtain or maintain control of property; (4) intentionally or knowingly; (5) cause[d] serious bodily injury to Edith King; (6) by striking her in the head with a blunt instrument; and (7) the exact nature and description of the blunt instrument was unknown to the grand jurors. FN:9 See TEX. PENAL CODE ANN. § § 29.03, 29.02, 31.03 (Vernon 1974). See also Bilbrey v. State, 594 S.W.2d 754, 759 (Tex. Crim. App. 1980); Sanchez v. State, 722 S.W.2d 781, 785 (Tex. App.--Dallas 1987, pet. ref'd). We conclude that the evidence is sufficient for a rational trier of fact to have found that: (1) Roy; (2) in the course of appropriating the property of Art Wadlund; (3) with the intent to obtain or maintain control of it; (4) intentionally or knowingly; (5) caused serious bodily injury, (i.e., death to King); (6) by striking King with a blunt instrument, or by aiding and encouraging Blakey to strike King with a blunt instrument, and (7) that at the time the grand jury indicted Roy, the exact nature and description of the "blunt instrument" used was unknown to the grand jury.
        When examined in the light most favorable to the verdict, the evidence shows that: Roy and Blakey planned to "burglarize" King's and Wadlund's residence; upon entering the residence, Roy and Blakey encountered King; King attempted to alert Wadlund; King was severely beaten with a tire tool supplied by Roy; King died as a result of the beating; Roy had the tire tool in his possession and beat Wadlund while Blakey searched Wadlund's room for money; after finding sixty-two dollars in Wadlund's wallet, Roy pulled the phone from the wall; Roy and Blakey fled from the scene in a vehicle provided and presumably driven by Roy; and the money was never returned to Wadlund.
         Based on the cumulative effect of these facts, we hold that a rational trier of fact could have found Roy guilty, beyond a reasonable doubt, as a party to the offense of aggravated robbery as alleged in the indictment. Roy's claim that he could not anticipate violence or injury to the victims is not a reasonable alternate hypothesis. We overrule Roy's fourth point of error and affirm the trial court's judgment.
 
 
                                                  
                                                  SUE LAGARDE
                                                  JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00519.F
 
FN:1 While the confession was given to Grigson in the form of a hypothetical, it corresponded to the circumstances surrounding Roy's confession.
FN:2 We can only conclude that the objection was that the expert's opinion invaded the province of the jury. The objection would not be specific enough otherwise to preserve any other error. See TEX. R. APP. P. 52(a).
FN:3 Rule 704 reads, "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." TEX. R. CRIM. EVID. 704.
FN:4 In Hopkins v. State, 480 S.W.2d 212, 220 (Tex. Crim. App. 1972), the Court of Criminal Appeals "follow[ed] the lead of the Supreme Court of Texas and gave [the 'invasion of the province of the jury' rule] a long overdue and official burial."
FN:5 Although the trial judge is the sole finder of fact at a Jackson v. Denno hearing, article 38.22(6) of the Texas Code of Criminal Procedure allows evidence of the voluntariness or involuntariness of the confession to be submitted to the jury. The jury can then be instructed that unless the jurors believe beyond a reasonable doubt that the statement was voluntarily made, the jury shall not consider such statement for any purpose nor any evidence obtained as a result thereof. Here, the disputed factual issue of the voluntariness of Roy's confession was also submitted to the jury.
FN:6 The indictment, excluding the formal portions, states that Alex Joseph Roy, on or about August 25, 1987, "did then and there unlawfully, knowingly and intentionally cause serious bodily injury to Edith King, by hitting and striking the said Edith King on the head with a blunt object, the exact nature of which is unknown to the grand jurors, while in the course of committing theft, and with the intent to obtain and maintain control of the property of Art Wadlund, hereinafter called complainant, the said property being current money of the United States of America, without the effective consent of the complainant and with intent to deprive the complainant of said property."
FN:7 Roy also casually mentions the theory of abandonment. He claims that he abandoned the criminal act because he did not actually beat the victims. However, Roy cites no authority for this assertion; consequently, we will not address it. See McWherter v. State, 607 S.W.2d 531, 536 (Tex. Crim. App. 1980).
FN:8 The indictment itself did not allege party responsibility; however, the Court of Criminal Appeals has held that it is not necessary that the indictment allege party responsibility. Crank v. State, 761 S.W.2d 328, 352 (Tex. Crim. App. 1988); Williams v. State, 676 S.W.2d 399, 401 (Tex. Crim. App. 1984); Cantu v. State, 715 S.W.2d 717, 720 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd); McMillan v. State, 696 S.W.2d 584, 585-86 (Tex. App.--Dallas 1984, no pet.). See also TEX. PENAL CODE ANN. § 7.01(c) (Vernon 1974).
FN:9 The parties stipulated that George Allen, a member of the grand jury that true billed this case, would testify that the exact nature and description of the blunt instrument was unknown to the grand jurors.
File Date[01-02-89]
File Name[880519F]