Jackie Lynn Deaton v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-97-00197-CR
Jackie Lynn DEATON,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CR-4580
Honorable Mary Rom n, Judge Presiding

Opinion by: John F. Onion, Jr., Justice(1)

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

John F. Onion, Jr., Justice

Delivered and Filed: August 31, 1998

AFFIRMED

Appellant, Jackie Deaton, was convicted of murder. See Tex. Penal Code Ann. 19.02 (b) (1), (2) (Vernon 1994).(2) The jury assessed his punishment at imprisonment for fifty years.

Appellant advances eight points of error. First, appellant challenges the legal and factual sufficiency of the evidence to support the conviction. Second, he claims a fatal variance between the pleadings and the proof. Third, he urges that his mistrial motion was improperly overruled after the State used bad faith in questioning a witness. Fourth, appellant claims error in the admission of evidence that appellant had engaged in "drug parties" prior to the offense in question. Fifth and sixth, appellant contends that the trial court erred in failing to grant a new trial because the State did not demonstrate a good faith basis for asking certain "have you heard" questions of a witness. Seventh, appellant argues that the trial court erred in denying his request to include in the jury charge at the penalty stage of the trial a definition of "community supervision" and list the customary conditions imposed. Eight, appellant complains of the trial court's failure to conduct a hearing on his motion for new trial.

Facts

Rocky Rollins, age 45, was found on a picnic table at 5535 Roosevelt Avenue in San Antonio about 2:30 p.m. on June 21, 1994. He had been shot in the head. The picnic table was in the front of a closed business establishment referred to as an "ice house," "beer joint," "Lilly's Bar," and a "taco place." Rollins was taken by ambulance to a hospital. He did not survive.

San Antonio Police Officer Fred Cisneros, responding to a dispatch, was the first police officer on the scene. He found Rollins, who appeared to be dead, on a picnic table, and observed a blue baseball cap and a spent 9 millimeter shell casing nearby. There were no weapons found at the scene.

Officer Michael Reeder arrived after Cisneros and the EMS ambulance. He observed that Rollins had been shot in the head, and that there was coagulated blood and brain matter on the ground. Reeder also saw the baseball cap and the shell casing. He saw no other bullets or shell casings within the police-taped area at the crime scene. Reeder talked to some of the individuals who arrived at the scene, and learned from other officers that Rollins was a known drug addict.

John Earl Phillips, who admitted to having a criminal record and currently being on probation for delivery and possession of cocaine, testified that he met Rocky Rollins and his wife, Shirley, sometime in June 1994. On the morning of June 21, 1994, the three, at Shirley's suggestion, decided to go to the Deaton family salvage yard on Roosevelt Avenue to collect foam rubber from the motor vehicles there. They intended to sell the foam rubber collected at a recycling place. Phillips stated that they dropped Rocky off at an icehouse near the salvage yard because Rocky had said that he did not get along with the people at the salvage yard. Phillips recalled that Rocky was wearing a blue baseball cap at the time. He denied that he was using drugs at the time but he was unsure of Rocky.

Phillips stated that Shirley got permission to enter the salvage yard before they started collecting foam rubber. About an hour later, Phillips heard a gunshot but gave it little thought "because of the neighborhood." As he and Shirley were leaving the yard, he saw the police and an ambulance near the icehouse.

Shirley Deaton Rollins testified that she was appellant's sister and Rocky's wife. She recalled dropping her husband off at the icehouse before going to the nearby Deaton Salvage yard to collect foam rubber, a practice in which "they" had engaged in the past without any difficulty. After hearing one gunshot, she later saw the police at the icehouse, and then went to the hospital. She stated that her husband was unarmed. She acknowledged that her husband was a heroin user but she did not know if he had used heroin on the day in question. Mrs. Rollins admitted that she was also a user of heroin. She recalled that sometime in the past, appellant and the deceased had argued after she had been beaten by her husband.

Felipe Perez, Jr. and Cornell Matthew were members of the Victory Outreach Program. Both had previous alcohol and drug problems. Perez had a criminal record involving shoplifting and public intoxication. On June 21, 1994, they were delivering food to men working on a house. As they drove on Roosevelt Avenue, Perez saw a man in blue jeans and wearing a blue or black baseball cap seated on a bench in front of what appeared to be an empty bar. Upon their return, while again on Roosevelt Avenue, Perez heard a gunshot and observed that the man previously seen was slumped over. Another man put a gun in the front of his pants, got into a white Ford pickup truck, and left the scene. Perez testified that appellant looked "familiar" and looked like the man he described to the police as leaving the scene. Perez immediately drove to a gas station and called the police. Cornell Matthew, who had memory problems because of his earlier drug use, corroborated much of Perez's testimony. Matthew recalled hearing a gunshot, saw a man lying on a table, and saw another man with something shiny in his hand which Matthew assumed to be a weapon. This man got into a white Ford pickup truck and drove off. Matthew saw no other vehicle at the scene.

Allen Jarrett, appellant's brother-in-law, testified that in February 1994, he gave appellant a 9 millimeter Smith and Wesson Model 39 nickel-plated pistol as the down payment on a car. Jarrett related that the pistol had been "tuned and ported," had a hair trigger, and no internal safety mechanism. He did not warn appellant about the pistol's characteristics.

Steven Fee, who had a lengthy criminal record listed on 19 pages spanning 27 years of time, entered a plea bargain on pending criminal cases in Bexar County which bargain included Fee testifying against appellant. The assessment of punishment with a cap of 25 years' imprisonment was to be withheld until his testimony was completed. Other pending cases in Kendall County were "on hold" until the disposition of the Bexar County cases.

Fee knew Rocky Rollins when both of them were in prison. Fee had also worked at the Deaton Salvage Yard. Fee testified that on June 21, 1994, between noon and 2:30 p.m., he took his brother's blue van to the salvage yard to work on its transmission. There he saw appellant with a nickel-plated pistol, who said, "Rocky, Shirley and someone are back there [salvage yard] robbing me blind . . . I can't take it anymore, he's (Rocky) not supposed to be there. I'm going to kill him." Fee observed that appellant had blocked the entrance and exit to the salvage yard with his Ford Ranger pickup truck and with a pole truck used at the yard.

Fee then went to the back of the salvage yard where he heard a hammering noise. When the hammering stopped, Fee saw someone in a blue cap running towards a side gate. He also saw a truck with a utility bed parked near a bus in the yard. Fee reported to appellant what he had seen. Appellant then left in his pick up truck. Appellant's wife told Fee to follow appellant to make sure appellant did not hurt anyone. Appellant and Fee drove around various streets checking to see if any foam rubber had been thrown over the fence. Fee eventually saw Rocky Rollins walking down Roosevelt Avenue towards the icehouse and alerted appellant to this fact. Fee followed appellant to the icehouse. He saw Rocky Rollins wearing a blue baseball cap seated at a picnic table. Rollins' head was cupped in his hands and he appeared to be "out of it." Appellant got out of his pickup and walked up to Rollins. He said, "Rocky, I told you, you son of a bitch." Appellant then struck Rollins on the head with the pistol which discharged. Both appellant and Fee fled the scene in their respective vehicles. Fee fled because there were outstanding warrants for his arrest.

After several miles appellant and Fee met. Appellant asked Fee to call appellant's wife to tell her what had happened. When Fee talked to appellant later, he was told by appellant to keep his mouth shut if he knew "what's best." Fee was advised not to come to the salvage yard. Approximately two weeks later, Fee was stopped by appellant's wife who threatened him. Being afraid of retaliation, Fee packed his bag and left for Rockport.

Detective Frank Corn testified for the State that Fee had been used by the police as a confidential informer and had provided reliable information. Fee had been paid in money or by the dismissal of cases against him.

Dr. Vincent Di Maio, the Chief Medical Examiner of Bexar County, performed the autopsy on Rocky Rollins. Dr. Di Maio explained that there were two gunshot wounds to the back of the head, one of which was the fatal wound. This wound was a contact wound as the gun had been placed on Rollins' scalp before being fired. There was gun powder in the wound. From Rollins' brain, the medical examiner recovered a 9 millimeter or a .38 caliber bullet. The second gunshot hit the skull at an angle and had skidded along the scalp. It was not a fatal wound. The shot had been fired from more than a foot and a half away. No evidence of defensive wounds was found, and an examination revealed that Rollins had a deformed left hand. Dr. Di Maio revealed that Rollins had a small amount of morphine in his blood, which indicated an injection within the last twenty hours of a narcotic such as heroin, which breaks down into morphine. He explained that heroin is a depressant and that Rollins could have been in a withdrawal stage at the time of the shooting. The doctor conceded that it was possible that the gun had accidently discharged once Rollins had been struck in the head, but it was even less likely the gun had accidently discharged twice. Dr. Di Maio believed that most likely the assailant had disabled Rollins with the contact wound and fired the second shot while Rollins was slumped over.

Police Office Richard Roberts testified that the blue baseball cap recovered at the scene had two holes in the back of the cap, one with what appeared to be gunshot residue and other with hair around the edge. Firearms expert Richard Stengel testified that the bullet removed from Rollins' brain and the shell casing recovered at the scene were consistent with having been fired by a nine millimeter Smith and Wesson Model 39 pistol. Other evidence showed that as a result of a tip the Ford pickup truck seen leaving the scene was found to be registered to the Deaton Salvage Yard.

Appellant called a few witnesses, Elaine Lazalee, Newt Maxwell, and B. Jones, who testified that appellant was a law-abiding and non-violent person. Curley Deaton, appellant's 84 year old father, who owned the salvage yard, related an incident in which Rocky Rollins had hit appellant on the back of the neck knocking him down, which precipitated a fight which required the two to be separated. He knew of no instructions, however, that Rollins was not to visit the salvage yard. Fernando Riojas testified that he had worked with appellant at the salvage yard. He described a 1989 incident when Rocky Rollins parked in front of appellant's house at midnight honking his car's horn and yelling abusive language. When Rollins got out of his car, a gun fell to the ground. Rollins left only after appellant's wife threatened to call the police. Riojas recalled that later Rollins telephoned appellant and threatened to "get" appellant. Riojas stated that a 1985 incident was precipitated when Rollins "sucker punched" appellant in the eye.

Appellant, Jackie Lynn Deaton, age 48, was the principal witness in his defense. He detailed his difficulties with Rocky Rollins over the years. He believed his troubles started when he told Rollins to stop beating his wife, appellant's sister. They also argued over the drug habits that Rocky and Shirley had developed. Appellant accounted how Rocky had struck him from behind without provocation and how Rocky accosted him in front of his own home as had been described by Riojas. He knew that Rocky had a history of arrests and convictions, and took seriously Rocky's threats of bodily injury and death.

The offense in question had been precipitated over a dispute involving the removal of foam rubber from the Deaton Salvage yard which appellant operated. Appellant related that his father may have at one time given Rocky and Shirley permission to pick up scrap foam rubber on the yard's grounds, but that they instead cut into and cannibalized undamaged vehicle seats in order to take the foam rubber contents. This was done to buses and other vehicles being repaired for sale. Other property was also missing from the yard. Both Rocky and Shirley had been warned to stop the stealing. Rocky had been told to stay away from the yard. Rocky, nevertheless, continued to return to the yard and steal. Appellant stated his sister, Shirley, did not have permission on the day in question to enter the salvage yard.

Appellant contradicted Fee and related that Fee told him Rollins and his wife were on the premises on the day in question and were "robbing me blind." Appellant stated that he got the pistol out of an office desk drawer only after he was informed property was being taken out of the yard. He had never fired the pistol. When appellant got to the icehouse, he told Rocky Rollins that "this shit is going to have to quit." Appellant stated that Rollins responded with "some words" and made a gesture indicating that he [Rollins] was reaching for a gun or weapon. At this point appellant hit Rollins over the head with the gun which discharged. He denied that Rollins was bent over or holding his head, but was looking straight at him. He denied hitting Rollins from behind. Appellant testified that he did not intend to kill his brother-in-law but acted in self defense. He denied that there was a second shot. Appellant related that he panicked and for that reason he fled the scene. He denied that he later threatened Fee and told him to keep his "mouth shut." Appellant denied that he was involved in drugs, but admitted a possession of marihuana case when he was twenty-one years old. The pistol used was disposed of and never found. Little evidence in this regard was developed.

First Point of Error

First, appellant challenges in one point of error the legal and factual sufficiency of the evidence to support his conviction. We shall consider these matters separately.(3)

Legal Sufficiency

In determining whether the evidence is legally sufficient to support the judgment, we view the evidence in the light most favorable to the judgment, asking whether any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996); Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1192 (1995).

The evidence, viewed in this light, and all reasonable inferences drawn therefrom, are evaluated in this review. See Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). A reviewing court must consider all evidence, rightly or wrongly admitted, which the trier of fact was permitted to consider. See Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1046 (1994). The standard of review is the same for both direct and circumstantial evidence. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1020 (1993). Appellate courts measure the legal sufficiency of the evidence against a hypothetically correct charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). In analyzing a challenge to the legal sufficiency of the evidence, the reviewing court does not realign, disregard, or weigh the evidence. Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.--Austin 1997, no pet.). The jury as the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given the testimony, and may accept or reject all or any of any witness' testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988); Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). Reconciliation of evidentiary conflicts is solely the function of trier of fact. See Miranda v. State, 813 S.W.2d 724, 733-34 (Tex. App.--San Antonio 1991, pet. ref'd); Juarez v. State, 796 S.W.2d 523, 524 (Tex. App.--San Antonio 1990, pet. ref'd). Moreover, the evidence is not rendered insufficient merely because the defendant presented a different version of the events. Turro v. State, 867 S.W.2d 43, 47-48 (Tex. Crim. App. 1993).

Appellant was indicted under former section 19.01(a) (1), (2) of the penal code in effect at the time of the commission of the offense of murder.(4)

See footnote one. Paragraph A and paragraph B of the indictment charged only one count of the offense under both theories of section 19.01(a)(1), (2). The jury charge in its application paragraph encompassed both theories alleged in the indictment.

Now if you find from the evidence beyond a reasonable doubt that on or about the 21st day of June, A.D., 1994 in Bexar County, Texas, the defendant, Jackie Deaton, did intentionally or knowingly cause the death of an individual, Rocky Rollins, by shooting the said Rocky Rollins with a deadly weapon, namely: a firearm; or if you find from the evidence beyond a reasonable doubt that on or about the 21st day of June, A.D., 1994 in Bexar County, Texas, the defendant, Jackie Deaton, did intend to cause serious bodily injury to an individual, Rocky Rollins, did then and there commit an act clearly dangerous to human life, to-wit: shooting the said Rocky Rollins with a deadly weapon, namely: a firearm, thereby causing the death of the said Rocky Rollins, then you will find the defendant guilty of murder as charged in the indictment. . . .

The jury was also charged on the law of self-defense with deadly force.

The jury at the guilt/innocence stage of the trial returned a general verdict. "We, the jury, find the defendant, Jackie Deaton, guilty of murder as charged in the indictment." Where different theories of the offense are submitted to the jury in the disjunctive, a general verdict is sufficient if the evidence supports one of the theories. See Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 922 (1993); Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 958 (1992).

The evidence is undisputed that appellant caused the death of Rocky Rollins by shooting him with a firearm or that appellant did an act clearly dangerous to human life by hitting Rocky Rollins in the head with a loaded firearm causing the death of Rollins. Appellant contends, however, that the evidence is legally insufficient to show that he acted intentionally under the first theory of former section 19.02(a)(1), or to show that he intended to cause serious bodily injury as required by the second theory under former section 19.02(a) (2).

Intent is a fact issue for the jury to resolve. See Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984); Rodriguez v. State, 793 S.W.2d 744, 748 (Tex. App.--San Antonio 1990, no pet.). Proof of a culpable mental state generally relies upon circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978). "Intent can be inferred from the acts, words, and conduct of the accused." Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982); Barcenes v. State, 940 S.W.2d 739, 744 (Tex. App.--San Antonio 1997, pet. ref'd). Conduct before, during, and after an offense may also be considered in determining a defendant's culpability. See Barron v. State, 566 S.W.2d 929, 931 (Tex. Crim. App. 1978).

There are a number of factors in evidence from which the jury could have reasonably concluded that appellant did intend to kill or cause serious bodily injury. There had been prior difficulties between appellant and Rocky Rollins. The latest problem was apparently the cannibalization of undamaged car seats for foam rubber at the salvage yard. Appellant had blocked the entrance and exit to the salvage yard on the day in question when he heard that Rollins and his wife were in the yard. Appellant was reported to have said, "I'm going to kill him [Rollins]. Appellant then armed himself and left. He found Rollins at the nearby icehouse and told him "this shit is going to have to quit." He then struck Rollins in the head and the gun discharged.

"A handgun is a deadly weapon per se." Mouton v. State, 923 S.W.2d 219, 223 (Tex. App.--Houston [14th Dist.] 1996, no pet.); see also Tex. Penal Code Ann. 1.07(a)(17) (Vernon 1994). Specific intent to kill may be inferred from the use of a deadly weapon. Flanagan v. State, 675 S.W.2d 734, 744 (Tex. Crim. App. 1982). That is, unless in the manner of its use it is reasonably apparent that death could not result. Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986). The 9 millimeter weapon shown to have been used in the instant case was a deadly weapon. See Sills v. State, 846 S.W.2d 392, 394 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd).

Appellant stated that he did not intend to kill, that he only hit Rollins in the head and the gun accidentally discharged. The gun, however, was loaded, the external safety was off, and as Dr. Di Maio pointed out, there had to have been a finger on the trigger. There were two wounds to the body, one a contact wound and the other was fired from a distance of one and a half feet or more from the body. If appellant only intended to use the pistol to scare his victim, he could have removed the bullets. Because appellant failed to do so and used a pistol which he knew was loaded, the jury could have reasonably inferred an intent to kill. See Mouton, 923 S.W.2d at 223; Sadler v. State, 728 S.W.2d 829, 832 (Tex. App.--Dallas 1987, no pet.).

Motive is not an element of a crime and it is never essential for the State to prove it, yet motive obviously is relevant as a circumstance making it more likely that the accused committed the offense with which he is charged. See Martin v. State, 823 S.W.2d 726, 728 (Tex. App.--Waco 1992, pet. ref'd); Miranda v. State, 813 S.W.2d 724, 741-42 (Tex. App.--San Antonio 1991, pet. ref'd); Steven Goode, Olin Guy Wellborn III, and M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal, 401.3 at 95-96 (Texas Practice 1993) (hereinafter Goode). Actions taken after the event, such as efforts to suppress or fabricate evidence, are relevant because they permit an inference of consciousness of guilt and hence to actual guilt. Goode, 401.3 at 95-96 (citing Roberts v. State, 795 S.W.2d 842, 845 (Tex. App.--Beaumont 1990, no pet.); Torres v. State 794 S.W.2d 596, 598-99 (Tex. App.--Austin 1990, no pet.)). The jurors could have inferred a consciousness of guilt in light of appellant's flight from arrest and custody, cf. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994), cert. denied, 515 U.S. 1162 (1995), and from the disposition and suppression of the pistol which prevented it from being examined to determine if it was the fatal weapon or to determine if it had a hair-trigger or other characteristic attributed to it by the defense. See Goode, 461.3 at 63 (Supp. 1998). The jury was free also to accept Fee's testimony that appellant had threatened Fee to remain silent. Any attempt to threaten a witness is probative of an accused's "consciousness of guilt." See Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983); Peoples v. State, 874 S.W.2d 804, 809 (Tex. App.--Fort Worth 1994, pet. ref'd). The jury as the trier of fact had before all the evidence including the prior difficulties between appellant and Rocky Rollins. On the day of the killing, appellant was reported to have said he was being "robbed blind" and that he was going to kill Rollins.

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, all the essential elements of the offense charged, including the intent to kill, and also could have found, beyond a reasonable doubt, against appellant on the self-defense issue. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).(5) We overrule that part of point of error one insofar as it challenges the legal sufficiency of the evidence.

Factual Sufficiency

A factual sufficiency of the evidence review begins with the presumption that the evidence purporting the judgment was legally sufficient. See Clewis, 922 S.W.2d at 134. In a challenge to the factual sufficiency of the evidence, we view the evidence without employing the prism of "in the light most favorable to the verdict." Id. at 129. A reviewing court must consider all of the evidence impartially, comparing evidence that tends to prove the existence of a disputed fact or facts with evidence that tends to disprove that fact or those facts. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The verdict or judgment is to be set aside only when the factual finding is against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129. In the factual sufficiency analysis, it must be remembered that the trier of the fact is the sole judge of the weight and credibility of the testimony. See Santellan, 939 S.W.2d at 164. Appellate courts should be on guard not to substitute their own judgment in these matters for that of the trier of fact. Id. One principle of factual sufficiency analysis is deference to the findings of the jury or other fact finder. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). "A decision is not manifestly unjust merely because the jury [or fact finder] resolved conflicting views of the evidence in favor of the State." Id. at 410. Courts of appeals are not at liberty to "engage in fact-finding." Id. at 409.

The evidence need not be reiterated. There was evidence supporting the State's version of the facts and appellant's interpretation thereof that he acted in self-defense in hitting Rocky Rollins with a pistol which accidentally discharged. We have examined all the evidence impartially, and giving due deference to the jury's verdict, we conclude that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The other part of the first point of error is overruled.

Fatal Variance

Appellant contends that point of error two is a sufficiency of the evidence issue in addition to the questions of legal and factual sufficiency. Appellant urges that there is a fatal variance between the allegation that he "intentionally and knowingly" shot and killed Rocky Rollins with a firearm and the proof that leaves "a clear and reasonable doubt" as (1) whether there was one or two shots; (2) whether he acted in self-defense; (3) whether he was reckless; and (4) whether in any event he acted with intent to kill Rocky Rollins. Appellant does not explain how these matters were not covered by his challenges to the legal and factual sufficiency of the evidence.

The culpable mental states of "intentionally and knowingly" were alleged only in paragraph A of the one-count indictment in connection with the theory of murder under former section 19.02(a)(1). Appellant's challenge is thus only to the evidence to support that theory of murder. The conviction would still be valid under the other theory of murder submitted in light of the general verdict and the supporting evidence. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993). The culpable mental states were alleged conjunctively but submitted disjunctively, which was permissible. See McDuff v. State, 939 S.W.2d 607, 614 n.2 (Tex. Crim. App. 1997), cert. denied, 118 S. Ct. 125 (1997); Hamett v. State, 578 S.W.2d 699, 713 (Tex. Crim. App. 1979), cert. dis'd, 448 U.S. 725 (1980);Garcia v. State, 634 S.W.2d 888, 889 (Tex. App.--San Antonio 1982, no pet.).

Most of the matters raised were fact issues for the jury or evidentiary conflicts whose resolutions are solely the function of the jury. Jurors may accept or reject all or any part of a witness' testimony. See Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Most of the matters now raised by appellant have been considered and disposed of in our earlier discussions and need not be repeated.

The issue of recklessness, if raised, was not presented to the trial court. Appellant did not ask for a charge thereon or request the submission of a lesser included offense. Moreover, appellant has not briefed this contention. See Tex. R. App. P. 38.1(h). We find no fatal variance as urged. The second point of error is overruled.

Motion for Mistrial

In point of error three, appellant complains that the trial court erred in overruling his motion for mistrial based on the State's bad faith in asserting that one Tommy Peeples was arrested for possession of drugs at appellant's place of business and appellant was arrested at the same time.

Newt Maxwell testified that appellant was a peaceful and law-abiding citizen. On cross-examination, the prosecutor, over objection, asserted: "You had an individual who was busted with two bricks that hadn't ever been cut up yet. It was two bricks of cocaine and Jackie was right there and they all got arrested." The witness professed no knowledge of the matter. On re-direct examination, when told that appellant had been arrested for a traffic ticket and not for drugs, the witness still professed no knowledge of the incident.

After the jury was retired, appellant's counsel obtained the offense report from the prosecutor which reflected that one Tommy Peeples had been arrested at appellant's place of business for possession of drugs, and appellant was arrested because of outstanding traffic warrants. Thereafter, the trial court instructed the jury to disregard any testimony about the arrest of Tommy Peeples and any implication that appellant was involved. The mistrial motion was overruled.

Later, when appellant testified on direct examination, he explained that Peeples had come to the salvage yard concerning the purchase of a car, that while he (appellant) was looking for a battery, the police arrived and arrested Peeples for possession of drugs in the vehicle Peeples was driving; that the police officers checked and arrested him only because of the outstanding traffic warrants.

In light of the trial court's instruction to disregard and appellant's choice of revisiting the matter, we find no error. Normally, trial court's instructions are sufficient to cure any harm that arises from the error. See Barber v. State, 757 S.W.2d 359, 362 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989). Our system presumes that judicial admonishments are efficacious. See Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). A motion for mistrial may be granted only when "it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant." Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). The prosecutor's actions are not commendable and she should have known that she was skating on thin ice from the beginning. Under the circumstances, however, the error was cured. The third point of error is overruled.

On Rebuttal

In point of error four, appellant urges that the trial court erred in allowing the State to elicit on rebuttal the testimony of Rollie Rollins (the deceased's brother) about "drug parties" at appellant's home several years before the offense charged. We find no objection to this testimony, thus no error was preserved for review. Tex. R. App. P. 33.1(a)(1); Tex. R. Crim. Evid. 103(a)(1). A timely specific objection is required for preservation of review purposes so that the trial judge has an opportunity to rule and opposing counsel an opportunity to remove the objection or supply other testimony. Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977); Johnson v. State, 901 S.W.2d 525, 533 (Tex. App.--El Paso 1995, pet. ref'd). The fourth point of error is overruled.

Bad Faith?

In the fifth and sixth points of error, appellant contends that the "trial court erred by failing to grant appellant a new trial for the failure of the State to connect up or show any good faith basis for asking State's witness Allen Jarrett" (1) if he had heard that appellant had "beat" Rocky Rollins with a baseball bat or that appellant had "shot up" the home of Rocky Rollins with a gun. It is difficult to understand appellant's contentions in view of the fact that there was no hearing on the motion for new trial as complained of in another point of error. Appellant certainly does not brief the fifth and sixth points of error on the basis that there was no hearing conducted. Moreover, the only objection made to Jarrett's testimony on the matters in question was that the State must use "have you heard" questions rather than the "did you know" form of interrogation. The State phrased their questions to comply with appellant's objection. There was no objection made on the basis now urged on appeal. "An objection stating one legal basis may not be used to support a different legal theory on appeal." Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); see also, Curry v. State, 910 S.W.2d 490, 495 (Tex. Crim. App. 1995). Appellant's fifth and sixth points of error are overruled.(6)

Jury Charge - Community Supervision

In point of error seven, appellant contends that the trial court erred by denying his request to include in the jury instructions at the penalty stage of the trial the usual and customary conditions of "community supervision" and a definition of that term. Appellant objected to the absence of the customary conditions in the jury charge and asked the trial court to define "community supervision," at least, "in some fashion." The objection was overruled and the request denied.

Appellant acknowledges that a trial court need not submit the conditions of probation in the jury charge at the penalty stage of the trial. See Yarbrough v. State, 742 S.W.2d 62, 64 (Tex. App.--Dallas 1987), pet. dis'd, improvidently granted, 779 S.W.2d 844, 845 (Tex. Crim. App. 1989)(overruling Brass v. State 643 S.W.2d 443 (Tex. App. Houston [14th Dist.] 1982, pet. ref'd)).(7) Obviously, aware of such holding, appellant called Mike Tafolla as a witness who identified himself as a member of the "Bexar County Adult Probation Department." Under interrogation Tafolla listed the customary conditions of probation imposed by the trial court. Cf. Brown v. State, 741 S.W.2d 453, 454-55 (Tex. Crim App. 1987)(evidence of supervision and probation revocation procedures is properly excluded). We find no merit in appellant's contention that the trial court erred by not listing the customary conditions in the jury charge.

It is appellant's further contention that the term "community supervision" is still new to judges, lawyers, and especially to layman jurors who may only be familiar with the term "probation." The statutory term "community supervision"(8) and the term "probation" are used interchangeably. See Rodriguez v. State, 939 S.W.2d 211, 220 n.12 (Tex. App.--Austin 1997, no pet.). The constitutional basis for "community supervision" is article IV, section 11A of the Texas Constitution which uses only the term "probation." An examination of article 42.12 of the Code of Criminal Procedure reflects the use of both terms throughout the statute. Without reciting page and verse, the instant record demonstrates that the attorneys and witnesses used the terms interchangeably. This was especially true in jury argument. It would be difficult to say that the jurors did not know the terms were being treated as synonyms.

The jury charge given was essentially the same as set forth in the form books. See, e.g. Michael J. Mccormick, Thomas D. Blackwell, And Betty Blackwell, Criminal Forms And Trial Manual 98.16 at 80 (Texas Practice 1995). It was sufficient to explain the meaning of "community supervision." No error is presented. The seventh point of error is overruled.(9)

Motion for New Trial

Lastly, appellant contends that the trial court erred, despite timely requests, in failing to conduct a hearing on the motion for new trial, resulting in the motion being overruled by operation of law. Appellant cites no authority and merely calls our attention to his first seven contentions. Appellant filed a motion for new trial with an accompanying request for a hearing. Later, he filed a renewed request for a hearing on the motion. The record does not reflect that the motion or the requests were ever presented to or brought to the attention of the trial court.

Rule 21.6 of the current Rules of Appellate Procedure provides: "the defendant must present the motion for new trial to the trial court within 10 days of filing it, unless the trial court in its discretion permits it to be presented and heard within 75 days from the date when the court imposes or suspends sentence in open court." Rule 21.6 is the same as former Rule 31(c)(1) except that the former rule commenced "[A]n accused shall present..."

"Present" as used in the rule means that the record must show that the movant for new trial sustained the burden of actually delivering the motion for new trial to the trial court or otherwise bringing the motion to the attention or actual notice of the trial court. Carranza v. State, 960 S.W.2d 76, 79 (Tex Crim. App. 1998). The mere filing of a new trial motion does not adequately "present" the motion for new trial to the trial court as required by the rule. Id. at 79-80. There is nothing in the record of the instant case to show appellant delivered his new trial motion to the trial court or otherwise brought the motion to the attention or actual notice of the trial court.

Thus, appellant did not preserve his contention for review. Id. at 80; see also Gibbs v. State, 819 S.W.2d 821, 836 (Tex. Crim App. 1991), cert. denied, 502 U.S. 1107 (1992); Price v. State, 840 S.W.2d 694, 697 (Tex. App.--Corpus Christi 1992, pet. ref'd). The eighth point of error is overruled.

The judgment is affirmed.

John F. Onion, Jr.

Justice

DO NOT PUBLISH

1. Assigned to this case by the Chief Justice of the Supreme Court of Texas.

2. The current law is cited for convenience. For the law applicable and in effect at the time of the commission of the offense, see the Act of May 24, 1973, 63rd Leg. R.S., ch. 399, 1. 1993 Tex. Gen. Laws 883, 913, as amended by Act of May 28, 1973, 63rd Leg., R.S., ch. 426, art. 2 1, 1993 Tex. Gen. Laws 1123 (Tex. Penal Code Ann. 19.02 (a) (1), (2), since amended). Despite the slight change in the numbering within the statute, the law remained the same.

3. It is better practice to separate these contentions into different points of error because the standards of review are different and the factual sufficiency review begins with the presumption that the evidence is legally sufficient. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); see also Nevels v. State, 954 S.W.2d 154, 159 n.4 (Tex. App.--Waco 1997, pet. ref'd).

4. Former section 19.01(a) (1), (2) provided: (a) a person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

5. The issue of self-defense is one of fact for the jury or other fact finder. Saxton, 804 S.W.2d at 913; Jones v. State, 951 S.W.2d 522, 526 (Tex. App.--Beaumont 1997, pet. ref'd). The trier of fact is called upon to decide if the accused's actions were justified and is free to accept or reject all or any part of any witness's testimony. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). In case of a guilty verdict, the jury has implicitly rejected any defense offered. Id. at 422. A reviewing court's duty is simply "to determine if the explicit and implicit findings by the trier of fact are rational... by evaluating the evidence in the light most favorable to the trier of fact's determinations." Id.; Jones, 951 S.W.2d at 526.

6. Appellant does not brief or explain any requirement that the State must lay a predicate of good faith before asking a "have you heard" question.

7. See also Cortez v. State, 955 S.W.2d 382, 383-84 (Tex. App.--San Antonio 1997, no pet.); Wade v. State, 951 S.W.2d 886, 893 (Tex. App.--Waco 1997, pet. ref'd); McNamara v. State, 900 S.W.2d 466, 467-68 (Tex. App.--Fort Worth 1995, no pet.); Saenz v. State, 879 S.W.2d 301, 306 (Tex. App.--Corpus Christi 1994, no pet.); Herrera v. State, 848 S.W.2d 244, 248 (Tex. App.--San Antonio 1993, no pet.).

8. See Tex. Code Crim. Proc. Ann. art. 42.12 2(2)(B) (Vernon Supp. 1998).

9. The submission of the statutory definition of "community supervision" would have removed any question. See Herrera, 848 S.W.2d at 248.

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