Full opinion text
OPINION JOE SPURLOCK, II, Justice. Appellant, Pamela Ruth McGoldrick Fielder, shot and killed her husband, Darwin Fielder, on July 23, 1981, at their home in Fort Worth, Texas. On her plea of not guilty to the offense of murder, she was found guilty of voluntary manslaughter. The jury assessed punishment at two years in the Texas Department of Corrections. We affirm. Fielder raises nine grounds of error on appeal. As none challenge the sufficiency of the evidence, the facts of the case will be reviewed only in regard to her grounds of error. In ground of error one, Fielder contends that she was deprived of her rights guaranteed under: 1) the Double Jeopardy provision of the Fifth Amendment and Article One, Section Fourteen of the Texas Constitution; and 2) the Due Process Clause of the Fourteenth Amendment and Article One, Section Nineteen of the Texas Constitution. Fielder alleges she was wrongfully tried twice for the same offense as the first trial ended in a mistrial due to prosecutorial misconduct. The first trial of Fielder commenced on April 19, 1982. On April 30, 1982, a mistrial was granted on defendant’s motion. On June 21, 1982, Fielder filed defendant’s special plea of jeopardy and a hearing was conducted on August 2, 1982. On August 6, 1982, the trial judge filed findings of fact and conclusions of law in connection with the August 2, 1982, hearing on defendant’s special plea of former jeopardy. The controlling authority in a situation where a mistrial, due to prosecu-torial misconduct, has been declared on the defendant’s own motion is the Supreme Court’s holding in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982) where it was held that: “only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of Double Jeopardy to a second trial after having succeeded in aborting the first on his own motion.” The trial court’s findings of fact numbers fifteen through eighteen state: “15) [c]oun-sel for the State did not intend to provoke defense counsel into moving for a mistrial; 16) [cjounsel for the State did not intend to cause a mistrial; 17) [n]o benefit or detriment accrued to either the State or the Defendant beyond the normal disclosures attendant to any re-trial of a criminal case; and 18) [njothing was demonstrated to the re-trial court to cause a conclusion that the State had reason to fear that the case was being lost; that acquittal was imminent; or that the State might fare better on a second presentation.” These facts, if true, would preclude the defense of double jeopardy being raised under the authority of Oregon v. Kennedy. At the August 2,1982, pretrial hearing, the trial court was the trier of fact and the sole judge of the credibility of the witnesses and the weight to be given their testimony and “[t]he findings of fact and conclusions of law filed by the trial court should not be disturbed absent a clear abuse of discretion.” Stone v. State, 583 S.W.2d 410, 413 (Tex.Crim.App.1979). Fielder contends that the record does not support the trial court’s findings of fact and conclusions of law. The record before this court does not, however, contain a statement of facts from either the first trial or the hearing held on August 2, 1982. As stated by the Court of Criminal Appeals of Texas in Anderson v. State, 635 S.W.2d 722, 726 (Tex.Crim.App.1982), “when the record fails to contain the evidence offered in support of the plea of jeopardy, this Court is in no position to review a contention asserting that a trial court erred in overruling the plea.” We find that the trial court did not abuse its discretion in its findings of fact or in overruling the appellant’s special plea of former jeopardy. Fielder’s ground of error one is overruled. Fielder’s grounds of error two, seven and eight are closely related in that they pertain to error surrounding a single juror, Joe Manuel Carranza. Ground of error two contends that Fielder was deprived of an impartial jury since a juror, through no fault of the appellant, withheld material information which precluded her from effectively exercising her right to peremptory challenge or challenge for cause. Ground of error seven contends that the trial court erred in failing to grant Fielder’s motion for new trial because the jury, after having retired to deliberate upon the case, received other evidence detrimental to the accused. Ground of error eight contends that Fielder was denied a fair and impartial trial based upon jury misconduct in discussing facts not admitted in evidence. Prior to trial, the court had approved the use of juror information sheets to aid in the jury selection process. A proposed questionnaire was submitted by the State, slightly modified by agreement of the parties and accepted by the court. The juror information sheet contained the following question: “Have you, any member of your family, or close friend, been charged with a crime?” At trial, the court explained certain matters and expounded on certain questions contained in the juror information sheets. The court stated: Now, have any member of your family or close friend been charged with a crime. Speeding, overparking, jaywalking are crimes. We are not interested in finding out if somebody has gotten a ticket for a minor traffic violation. If it’s a major violation, such as driving while intoxicated or some type of recklessness that really became a serious matter, you might include that, but primarily, we are concerned with the more serious misdemeanor and any felony. Joe Manuel Carranza, a prospective juror who was later impanelled in the present case, answered this question in the negative. During voir dire, another prospective jur- or in the present case, James Everett Bus-bee, was questioned regarding his affirmative response to this same question. Bus-bee stated that a “[fjriend of mine was arrested for DWI.” Subsequently, it was learned that Carranza was serving a term of two years probation for misdemeanor driving while intoxicated. During the jury’s deliberations on punishment, Carranza related to the other jurors the fact that he was on probation and made certain representations to the jury concerning his probation. A hearing on Fielder’s motion for new trial was held on December 9,1982. At the hearing, Carranza was questioned about his answer on the juror information sheet. On direct examination by counsel for appellant, Carranza testified that he had answered the question negatively because he “figured a crime would be like a felony.” He also testified that at the time he answered the question he was on probation in Tar-rant County for the offense of driving while intoxicated. Carranza was further questioned about what had taken place at voir dire. Carranza recalled the jury panel being asked as a group the question, “Have you or any member of your family ever been charged with a crime?” He did not recall Mr. Bus-bee, who later turned out to be the foreman of the jury, standing up and stating that he had a friend who had been arrested for D.W.I. Counsel for the appellant then questioned Carranza about the jury’s deliberations on punishment. Carranza testified that the jury talked about different forms of punishment including probation and what would be required of a person on probation. He testified that during those deliberations, he mentioned to the other jurors that he was on probation at that time. In response to questions concerning what he had told the jurors about probation Carranza stated, “I just said you have to go by the rules that are stated on the — on the forms,” and that “I had to report every month.” Upon cross-examination, Carranza testified that he never told the jury that the defendant did not have to follow the conditions of probation set by the judge. Carranza further testified that during voir dire, he determined that since he was on probation for a traffic offense it was not the type of crime that the attorneys were interested in and that he did not intentionally mislead the court. Ten of the remaining eleven jurors also appeared and testified at this hearing. The affidavit of the twelfth juror was admitted into evidence. All of these jurors admitted that some discussion of Carranza’s probation had taken place. All of the jurors additionally stated that these discussions in no way affected their individual determination of the proper sentence to impose on the appellant. Only one of the jurors, Maggie Burke Mooney, recalled the term “inconvenience” to have been used by Carranza in describing probation. Mooney testified as follows: [By counsel for appellant] Q. (By Mr. Gandy) All right. What did he say? A. That he was — he had to report to his probation officer and that he wasn’t free, well, he felt like he wasn’t — he had to report to his probation officer. He couldn’t go and come as he had once did. If he would leave town, he would have to report, and that’s all that I remember. Q. Did he make any statement about whether he considered that punishment or not? A. I don’t think so. I didn’t hear him mention that. Q. Did he describe probation as being an inconvenience? MR. WORLEY: Leading, Your Hon- or. THE COURT: Well, I’ll let her answer the question, but let’s stop leading our witness, please, Counsel. You may answer the question. THE WITNESS: Yes, he thought it would be an inconvenience. Q. (By Mr. Gandy) All right. What did he say about it being an inconvenience? Do you recall? As closely as you remember. A. Well, just as I said before, he would have to report to his probation officer, you know, at any time that he wanted to leave Fort Worth, and that’s all I could— [Emphasis added.] On cross-examination by the State, Mooney testified that she based her verdict on the evidence presented at the punishment phase of the trial and that Carranza’s being on probation did not have anything to do with her decision. Mooney further testified, that she, in fact, came down in her judgment as to what the appropriate number of years should be. Fielder asserts that Carranza’s inaccurate answer to the question on the juror information sheet constituted a withholding of material information. She contends that this withholding misled her on a material issue and deprived her of the right to challenge Carranza peremptorily or for cause. We do not agree. It is the well-settled law of this state that “the trial judge is the trier of fact at the hearing on a motion for new trial and that his findings thereon will not be disturbed absent a showing that he abused his discretion.” Jones v. State, 596 S.W.2d 134, 138 (Tex.Crim.App.1980). See Shaver v. State, 162 Tex.Crim. 15, 280 S.W.2d 740 (1955) and Ladd v. State, 153 Tex.Crim. 407, 220 S.W.2d 660 (1949). Adequate grounds for a new trial exist where a juror withholds material information in the voir dire process thereby depriving the defense counsel of the opportunity to challenge the prospective juror. The Court of Criminal Appeals in Von January v. State, 576 S.W.2d 43, 45 (Tex.Crim.App.1979), stated that “[w]hen a partial, biased, or prejudiced juror is selected without fault or lack of diligence on the part of defense counsel,.who has acted in good faith upon the answers given to him on voir dire not knowing them to be inaccurate, good ground exists for a new trial.” Under such circumstances, it would be an abuse of discretion for the trial court to refuse to grant a new trial. For good grounds to exist, requiring a new trial, it must be shown that the information withheld was material. See Salazar v. State, 562 S.W.2d 480, 482 n. 5 (Tex.Crim.App.1978). The cases where the information withheld has been found to be material, thus requiring reversal, can be divided into two categories. Reversible error has been found where the juror withholds information that he had personal knowledge about or was in some way personally acquainted with either the complainant or the defendant. See Von January, 576 S.W.2d at 45 and Babin v. State, 149 Tex.Crim. 339, 194 S.W.2d 563 (1946), where no reversible error was found to exist. The second category contains those cases where reversible error exists when the juror by reason of past personal experiences had the potential to be biased or prejudiced against the defendant. In these cases, the juror withholds information that he had been personally affected by criminal activities similar to the criminal act with which the defendant is charged. See Salazar, 562 S.W.2d at 480; Norwood v. State, 123 Tex.Crim. 134, 58 S.W.2d 100 (1933); and Bolt v. State, 112 Tex.Crim. 267, 16 S.W.2d 235 (1929). The information withheld by Carranza in the present case does not fit within either of the above categories. In cases where jury misconduct is alleged as requiring a new trial, “each case must be governed by its own peculiar facts.” Autry v. State, 143 Tex.Crim. 252, 157 S.W.2d 924, 931 (1942). Under the facts of the present case, the withholding of information by Carranza appears unintentional. Following the explanation of this particular question given by the trial court, Carranza, in good faith, answered the question in the negative. We find that the information withheld was not material and Carranza was not shown to be partial, biased or prejudiced toward Fielder. We find that the trial court did not abuse its discretion in refusing to grant a new trial based on such alleged jury misconduct. Fielder’s ground of error two is overruled. Fielder contends that the discussion of Carranza’s probation during the jury’s deliberations on punishment constituted the receipt of other evidence detrimental to herself. “Where the jury, after having retired to deliberate upon a case, has received other evidence,” the defendant is entitled to a new trial. TEX.CODE CRIM.PROC. ANN. art. 40.03(7) (Vernon 1979). In defining and applying this statute, the Court of Criminal Appeals has stated: In order to mandate a new trial, the “other evidence” must (1) be received by the jury and (2) be detrimental to the defendant. Trevino v. State, 582 S.W.2d 111 (Tex.Cr.App.1979). If there is conflicting evidence on the issue of whether the jury received the evidence, a fact question is presented, and the trial court’s determination of the question will be overturned on appeal only if an abuse of discretion is shown. Honeycutt v. State, 157 Tex.Cr.R. 206, 248 S.W.2d 124 (1952); Mcllveen v. State, 559 S.W.2d 815, 819 (Tex.Cr.App.1977) (reh. denied 1978). Hunt v. State, 603 S.W.2d 865, 868 (Tex.Crim.App.1980). The court’s charge on punishment, in the present case, instructed the jury to determine if Fielder should be granted probation. The charge set out the circumstances under which probation may be granted. The conditions of probation which the court might impose upon Fielder were also contained in the charge. Two of the conditions contained in the charge were: d) That she report to the probation officer as directed by the judge or probation officer and obey all rules and regulations of the probation department; and g) That she remain within a specified place. The issue of probation as well as the terms and conditions thereof were therefore, properly before the jury for their consideration. Specifically, the conditions that the defendant report to a probation officer and that her freedom of movement would be restricted by probation were properly before the jury. Of the ten jurors who appeared at the hearing on motion for new trial other than Carranza, only eight testified as to the content of Carranza’s statements concerning probation. These jurors testified that reporting to a probation officer and restriction of movement were the only two conditions expounded on by Carranza. The testimony of Mooney, mentioned above, as well as the testimony of Evelyn Gardner Franklin, were exemplary of the jurors’ recollections of Carranza’s statements. Franklin testified as follows: [By counsel for appellant] Q. Did he tell the jury what was required of him in being on probation? A. Reporting once a month, you mean that? What he said in that respect? Q. Yes, Ma’am. A. He had to report once a month; and he was on probation for a year; and he had to pay some every month. I don’t remember exactly what he said. Q. Did he tell the jury what was entailed in reporting once a month? A. No, not really that I remember. Q. Do you recall how he described probation? A. Other than — I don’t believe he was supposed to leave the city or State or something to that effect. And I don’t know — I’m not sure what he said. He wasn’t allowed to drive. He didn’t really tell us a lot of details of it, other than— One other juror also testified that Carranza had mentioned the requirement of payments. Every juror, without exception, testified that Carranza’s statements in no way affected their final decision. On the initial issue of whether other evidence was received by the jury, we hold that a relating of personal knowledge concerning facts already before the jury does constitute other evidence. This is true even though Carranza’s assertions appear to have been little more than affirmance of information contained in the court’s charge. Although the jury did receive other evidence, it is necessary that such evidence be detrimental to the appellant before reversal is required. We find that Carranza’s assertions were in line with the court’s charge on punishment and were not a misstatement of the law. See Martinez v. State, 533 S.W.2d 20 (Tex.Crim.App.1976). No juror testified that Carranza’s statement affected his/her decision. See Powell v. State, 502 S.W.2d 705 (Tex.Crim.App.1974). The trial court denied the motion for new trial, implying a finding that the assertions made by Carranza concerning probation were neither adverse nor detrimental to Fielder. We find no abuse of discretion in the trial court's denial of the motion for new trial in the present case. See Jones v. State, 596 S.W.2d at 138; Appleman v. State, 531 S.W.2d 806 (Tex.Crim.App.1976); and Powell, 502 S.W.2d at 711. Fielder’s grounds of error seven and eight are overruled. Fielder’s ground of error four contends that the trial court erred in allowing the prosecution to elicit from a witness, over defense counsel’s timely objection, a statement allegedly made by her, pertaining to an extraneous offense. The statement was allegedly made by Fielder to Ed Yeary. The State, during its case in rebuttal, called Yeary as a witness and, upon direct examination, elicited the statement from him. Prior to eliciting the statement from Yeary, the State questioned Fielder concerning the same incident. On cross-examination of Fielder, the State inquired about an argument which occurred between her and the deceased, Darwin Fielder, around Thanksgiving of 1979. Fielder testified that she recalled having an argument with her husband, Darwin Fielder, during Thanksgiving of 1979 and that Darwin left home and went to the Clayton House to spend the night. She further testified that she called him at the Clayton House and then went there to apologize but was unable to because she did not get to see him. At this point, an objection was made to further cross-examination concerning this incident whereupon an offer of proof was made by the State. The objection was overruled and the State was allowed to proceed in line with the offer of proof. Fielder then testified that she did not recall having a telephone conversation with Ed Yeary during the Thanksgiving weekend of 1979. She further did not recall stating to Ed Yeary that, “I’ve got my gun and if she don’t tell me, I’m going to get it,” and testified that she “wouldn’t have said that” or referred to her gun. Fielder did not recall Yeary coming down to the Clayton House on the evening in question. Yeary, a certified public accountant, was a close personal and business acquaintance of both Pamela and Darwin Fielder. On direct examination, Yeary testified concerning the incident. From the evidence presented at trial, it appears that Pamela and Darwin Fielder had an argument on this evening. The argument ended with Darwin leaving their home and going to the Clayton House to spend the night. Yeary testified that Pamela Fielder telephoned him from the Clayton House, sometime after 9:30 p.m. She requested that Yeary come to the Clayton House to help in finding Darwin, which he agreed to do and proceeded to the Clayton House to meet with her. Yeary testified concerning a statement made by Pamela Fielder to him: [By the State] Q. (By Mr. Worley) Did you have further conversation with the Defendant, without regard to whether it was on the telephone or— A. (By the Witness) I had further conversation with Pam. She said, yes, I have my gun, and I’m going to find Darwin. Fielder contends that Yeary’s testimony was evidence of an extraneous offense and that its admission was highly prejudicial and did not tend to prove any element of the offense charged. We disagree. The Court of Criminal Appeals in Elkins v. State, 647 S.W.2d 663, 665 (Tex. Crim.App.1983), stated: It is an established generic principle of evidence that proof of prior specific acts of misconduct, similar happenings or extraneous transactions committed by a party is not probative of the contested material issues in the case on trial, and therefore inadmissible. In a criminal proceeding, when the State seeks admission of an extraneous or similar transaction committed by the accused which constitutes a separate criminal offense, introduction of that “extraneous offense” transaction is inherently prejudicial, since the accused has no notice he will be called to defend against it, and his “propensity to commit crimes” is not material to whether he is guilty of the specified conduct which is charged by the State. [Citations omitted.] This rule “is not limited to a completed accomplishment of all elements of a penal offense defined in the code. It also embraces proof of similar occurrences, other extraneous transactions.” Gant v. State, 649 S.W.2d 30, 35 (Tex.Crim.App.), cert. denied, — U.S. —, 104 S.Ct. 122, 78 L.Ed.2d 120 (1983) (citations omitted). Evidence of an extraneous offense or transaction is admissible under certain circumstances. Judge Clinton’s concurring opinion in Rubio v. State, 607 S.W.2d 498, 506 (Tex.Crim.App.1980) (Clinton J., concurring), states that “extraneous transactions constituting offenses shown to have been committed by the accused may become admissible upon a showing by the prosecution both that the transaction is relevant to a material issue in the case; and, the relevancy value of the evidence outweighs its inflammatory or prejudicial potential.” [Citations and footnotes omitted.] See Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim.App.1983); and Elkins, 647 S.W.2d at 665. The Court of Criminal Appeals in Albrecht v. Texas, 486 S.W.2d 97, 100-101 (Tex.Crim.App.1972), reviewed those cases where evidence of an extraneous offense had been held admissible by stating that: Evidence of extraneous offenses committed by the accused has been held admissible: (1) To show the context in which the criminal act occurred ... (2) To circumstantially prove identity where the state lacks direct evidence on this issue. (3) To prove scienter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself. (4) To prove malice or state of mind, ... (5) To show the accused’s motive, ... (6) To refute a defensive theory raised by the accused. [Footnotes omitted.] See Williams, 662 S.W.2d at 346. The court in Williams, explained that this list announced in Albrecht, was merely “a list of examples” and should not be construed as either “an exhaustive list of exceptions to nonadmissible extraneous offenses,” or “as the test of their admissibility.” Williams, 662 S.W.2d at 346. The test for admissibility contains three elements which must be satisfied before the extraneous offense may be received into evidence. The elements are: “1) the evidence of the extraneous offense is material, i.e., going to an element of the offense charged in the indictment or information, 2) the accused participated in the extraneous transaction being offered into evidence, and 3) the relevancy to a material issue outweighs its inflammatory or prejudicial potential.” McCann v. State, 606 S.W.2d 897, 901 (Tex.Crim.App.1980). In the present case, the extraneous act of misconduct testified to by Yeary must meet this test for admissibility. At trial Fielder raised the defensive theory of self-defense. In developing this defense, she portrayed her marriage to Darwin as stormy and marred by physical violence and sexual abuse. Fielder testified that she and her husband had infrequent arguments which erupted into physical violence against her at the hands of Darwin Fielder. She portrayed Darwin as the aggressor and perpetrator of physical violence in their relationship. In light of such fact, the State, in attempting to prove an unprovoked killing, had a burden to refute such a portrayal of the Fielders’ relationship. The State, on cross-examination of Fielder, initially attempted to impeach her characterization of this relationship. These inquiries by the State were entirely proper. The court held in Martin v. State, 157 Tex.Crim. 210, 248 S.W.2d 126, 129 (1952), that “[s]ince the appellant had given his version of the entire transaction, which wrapped the cloak of injured innocence about his shoulders, we feel that it was proper for the State ... to cross-examine him and show his conduct not to have been as innocuous as claimed.” Given the propriety of such inquiry and Fielder’s denial of the statement, Yeary’s testimony became relevant as competent rebuttal evidence. As stated by the court in Lolmaugh v. State, 514 S.W.2d 758, 759 (Tex.Crim.App. 1974), “when the appellant made an issue of self-defense, motive became an issue.” The court went on to find that an extraneous offense was admissible to show state of mind or motive. Id. at 759. The court in Halliburton v. State, 528 S.W.2d 216, 218 (Tex.Crim.App.1975), held that where the appellant testified to self-defense and the absence of intent to kill, the State was authorized to introduce an extraneous offense to show intent. In both cases, the extraneous offense was additionally admissible to refute the defensive theory raised by the accused. In both cases, the extraneous offense admitted into evidence was the shooting, by the accused, of a person, other than the victim of the offense charged in the immediate case. Fielder testified that she shot her husband in self-defense. Such a defensive theory put in issue both the accused’s motive or state of mind and her intent. In such a case, “[t]he ultimate question is whether the extraneous offense tends to disprove the appellant’s explanation of the primary offense. The presence or absence of similarity is not entirely determinative of the admissibility of the extraneous offense. If the extraneous offense is relevant in tending to disprove the defensive theory, it should be admissible.” Id. at 219. The State, in the present case, as in Halliburton, was attempting to prove an unprovoked killing by use of a firearm. The prior act of misconduct testified to by Yeary, involved Pamela Fielder and the deceased and arose from those parties’ relationship. Yeary’s testimony would, if believed by the jury, show Fielder’s use of a firearm in an aggressive manner and not merely for defensive purposes in the context of her relationship with the deceased. As did the court in Martin, we believe that any testimony evidencing conduct towards the deceased “would clearly be a relevant circumstance going to show the condition of the mind of the accused at the time” of the shooting. Martin, 248 S.W.2d at 129. We find that Yeary’s testimony about the statement made to him by the accused was relevant. The second element of the test of admissibility requires a showing that the accused actually committed the extraneous offense. “Even though evidence of an extraneous offense may be relevant to the instant proceedings, such evidence should not be admitted unless the commission of the other crime is clearly proved and the accused is shown to be the perpetrator.” Thompson v. State, 615 S.W.2d 760, 761 (Tex.Crim.App.1981). Fielder did not recall making the statement attributed to her by Yeary. She did testify that the argument took place and that Darwin had left their home and went to the Clayton House. She also admitted going to the Clayton House to find Darwin. Any conflict between the testimony of Fielder and Yeary presented a matter to be resolved by the jury as the sole trier of fact and judge of the credibility of witnesses. We find that, when the testimony of Fielder and Yeary are considered together, the evidence is sufficient for the jury to conclude that the incident occurred. As the statement was relevant to show intent, motive or state of mind and to refute the defensive theory of self-defense, the only remaining inquiry is whether the relevancy of such evidence outweighs its potential for prejudice. Prior to the testimony of Yeary, Fielder had testified as to the nature of her relationship with Darwin, and had introduced evidence that violent arguments took place between herself and the deceased. She had also testified as to perverse sexual acts which she and Darwin had engaged in during their marriage. Considering the case as a whole and in light of the testimony of Fielder, we do not believe the admission of her statement into evidence constituted reversible error. See Smith v. State, 540 S.W.2d 693, 699 (Tex.Crim.App.), cert. denied, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977). We find that the relevancy of such evidence, especially in light of her claim of self-defense, outweighed its potential for prejudice to Fielder. Fielder raises one final challenge to the admissibility of this statement by contending that the statement was too remote in time in relation to the offense charged to be admissible. Fielder, herself, testified as to the occurrence of arguments from the very beginning of her relationship with Darwin up until the time of his death. She attempted to prove that her alleged act of self-defense was the culmination of their entire relationship, of approximately five years, yet asserts that this incident, occurring only eighteen months prior to Darwin’s death, was too remote in time. Because the incident arose out of Pamela Fielder’s relationship with the deceased, and because it was the product of the type of arguments between herself and Darwin, which took place up until the time of his death, we find that the incident was not too remote in time to defeat its admissibility. See Yates v. State, 509 S.W.2d 600 (Tex. Crim.App.), cert. denied, 419 U.S. 996, 95 S.Ct. 310, 42 L.Ed.2d 270 (1974); Baker v. State, 368 S.W.2d 627 (Tex.Crim.App.1963); and Washburn v. State, 167 Tex.Crim. 125, 318 S.W.2d 627 (1958). Fielder’s ground of error four is overruled. Fielder’s ground of error five contends that the trial court erred by submitting to the jury a charge which did not adequately advise the jury of the relationship between voluntary manslaughter (wherein the jury is authorized to convict if the accused was acting under the immediate influence of sudden passion arising from adequate cause) and self-defense. It is asserted that the charge improperly shifted the burden of proof to appellant to disprove the influence of sudden passion and that this constituted fundamental error. We disagree. The part of the charge complained of appears as follows: Now therefore, if you find from the evidence beyond a reasonable doubt that on or about the 23rd day of July, 1981, in Tarrant County, Texas, the defendant, Pamela Ruth McGoldrick Fielder, did intentionally or knowingly cause the death of an individual, Darwin L. Fielder, by shooting him with a firearm, but you further find and believe from all the facts and circumstances in evidence in the case that the defendant, in killing the deceased, if she did, acted under the immediate influence of sudden passion arising from an adequate cause, or if you have a reasonable doubt as to whether she so acted under the immediate influence of a sudden passion arising from an adequate cause, then you will find the defendant guilty of voluntary manslaughter. [Emphasis added.] Unless you find beyond a reasonable doubt that the defendant is guilty of voluntary manslaughter under the instructions given you, or if you have a reasonable doubt thereof, you will acquit her of voluntary manslaughter and say by your verdict not guilty. Fielder failed to object to the submission of this charge to the jury. Fielder’s failure to object at trial limits this Court to a review for fundamental error. Jackson v. State, 591 S.W.2d 820, 824 (Tex.Crim.App.1980). In making such a review, “[t]he charge should be viewed as a whole, and review should not be limited to parts of the charge standing alone.” Daniel v. State, 486 S.W.2d 944, 947 (Tex.Crim.App.), cert. denied, 410 U.S. 958, 93 S.Ct. 1433, 35 L.Ed.2d 692 (1973). See Jackson, 591 S.W.2d at 825. The court in Jackson stated that: A jury charge is fundamentally defective when it: (1) authorized conviction without proof of an allegation in the indictment which is required to be proved; (2) authorizes conviction on a different theory than alleged in the indictment; (3) authorizes conviction on the theory alleged in the indictment and on additional unalleged theories; (4) authorizes conviction for conduct which is not an offense. Jackson, 591 S.W.2d at 824. Fielder asserts that the shifting of the burden of proof to appellant to disprove the influence of sudden passion before instructing the jury on self-defense was fundamental error. It is unclear how Fielder’s contention would come under any one of the four delineated categories set out above. We fail to see how the complained of charge shifted the burden of proof on any element or issue. In support of her contention, she cites: Braudrick v. State, 572 S.W.2d 709 (Tex.Crim.App.), cert. denied, 440 U.S. 923, 99 S.Ct. 1252, 59 L.Ed.2d 477 (1979); Gibson v. State, 659 S.W.2d 34 (Tex.Crim.App.1983) opinion withdrawn and to be republished, Docket No. 62,720 (Tex.Crim.App., September 14, 1983) (not yet reported); Jenkins v. State, Docket Nos. 64,000-64,004 (Tex.Crim. App., February 16, 1983) (not yet reported); and Cobarrubio v. State, 675 S.W.2d 749 (Tex.Crim.App.1983). In both Gibson and Cobarrubio, the Court of Criminal Appeals of Texas gives an example of the proper charge to be given where the accused is on trial for the offense of murder, and the issue of sudden passion is injected into the case. Gibson, supra at 2 of slip opinion. Cobarrubio, 675 S.W.2d at 751, n. 8. The examples given regarding the charge on voluntary manslaughter are exactly the same as the instruction appearing in the present case. In Braudrick, the jury instruction on voluntary manslaughter was, again, exactly the same as the one appearing in the present case. Braudrick, 572 S.W.2d at 710-711. The court in Braudrick, impliedly approves of such charge. The court in Ex parte Buggs, 644 S.W.2d 748, 750 (Tex. Crim.App.1983) cites with approval Cobarrubio, and goes on to give the proper charge for voluntary manslaughter by stating: Thus, when a jury is properly charged on murder and on voluntary manslaughter, as a lesser included offense, it will be authorized to find an accused guilty of voluntary manslaughter if it believes from the evidence beyond a reasonable doubt that the accused “did intentionally or knowingly cause the death of an individual, CD, by shooting him with a gun, but you further find and believe from the facts and circumstances in evidence in the case that the defendant, in killing the deceased, if he did, acted under the immediate Influence of sudden passion arising from adequate cause, or if you have a reasonable doubt as to whether he so acted under the immediate influence of a sudden passion arising from an adequate cause, then you will find the defendant guilty of voluntary manslaughter.” [Footnotes omitted.] [Emphasis added.] Fielder argues that the jury was first instructed to consider the elements of voluntary manslaughter and that if the jury had a reasonable doubt as to whether she acted under the immediate influence of a sudden passion arising from adequate cause, they should still find her guilty of voluntary manslaughter. It is asserted that in the instant case this improperly shifted the burden of proof to Fielder to disprove she was acting under the influence of sudden passion before the jury was ever instructed on the law of self-defense. Fielder contends that the charge should have instructed the jury that if they had a reasonable doubt as to whether she acted under the immediate influence of sudden passion, they should rule in her favor on the issue of self-defense. We find that Fielder’s argument lacks merit. The reasonable doubt spoken of in the charge, set out above, relates to the jurors’ beliefs on the issue of “immediate influence of a sudden passion arising from an adequate cause,” (a defensive issue) so that, instead of being guilty of the offense of murder, they might find her guilty only of voluntary manslaughter, if they believed she had such passion, or if they had even a reasonable doubt about the passion. It does not shift the burden on the issue of her guilt or innocence of any offense, but permits the jury to find her guilty of the lesser offense (instead of murder) whether they fully believe that passion was involved or not. Other than the assertions recited above, Fielder does not further develop this ground of error, and seems to argue that by injecting the issue of self-defense into the case, the character and wording of the charge on voluntary manslaughter should somehow be changed. Fielder cites to no authority which directly supports these contentions. Those authorities which are cited, as mentioned above, explicitly approve of the charge given in the case. Although some scholar might one day draw a clearer charge, we find no error in the charge. Fielder’s ground of error five is overruled. In ground of error six, Fielder contends that the trial court erred in failing to grant her motion for mistrial where it was shown that a juror had conversed with other persons regarding the case. She asserts that the trial court abused its discretion by overruling her motion for mistrial and motion for new trial where the evidence established that a juror conversed with unauthorized persons about the case without permission and outside the presence of the court and the State failed to rebut the presumption of harm arising therefrom. We disagree. During the course of the trial, on September 24, 1982, a man approached counsel for the appellant, Richard Haynes. This man, Curtis Young, informed Haynes that he had on two occasions come in contact with one of the jurors, James Fowler. These contacts occurred by virtue of the fact that Young lived with a woman, Janice Wade, who was a close, long-time friend of Fowler’s. Young stated that on these occasions Fowler had spoken about the case and that on one occasion Fowler had made a statement to the effect: “[F]or enough money he could find the accused not guilty.” This encounter between Haynes and Young took place on a Friday and on the following Monday, during in-camera proceedings conducted by the court, Haynes reported the encounter to the court. On Monday afternoon, September 27, 1982, grand jury subpoenas were issued to obtain the immediate presence of both Young and Wade. Counsel for the appellant was notified by the District Attorney’s office that such subpoenas had been issued and were in the process of being executed. The District Attorney’s office requested that counsel for the appellant be present at the interviewing of Young and Wade. The subpoenas were executed the same day and both Young and Wade were brought in to be interviewed. Young and Wade were questioned separately by both members of the District Attorney’s office and counsel for the appellant. On the evening of September 27th, a written statement was obtained from Young. The relevant part of Young’s statement is as follows: The first time I saw Jimmy Fowler was at Janice Wade’s house at 1130 S. Henderson, Fort Worth, Texas. When I came down from upstairs, he was talking about Richard Racehorse Haynes and his being on the jury. She asked him how he was picked and he said say the right things and you’ll be picked. Janice asked him what he was thinking and he said she’s guilty; he said it didn’t make him any difference if she hung or not, that it depended on how he was feeling at the time but if the money was right, he would go either way. He laughed about it but I think he was serious. Jimmy was talking about photos that were being shown in the courtroom and how the D.A. was saying his hand was up defending himselfand [sic] that Racehorse was saying he was trying to hit her. He said “I know he wasn’t trying to hit her — she shot him several times.” On Tuesday, September 28, 1982, a statement was taken from Wade. The pertinent part of Wade’s statement is as follows: I have known Jimmy all my life. We went to school and high school together. I asked him what he had beendoing [sic] or where he had been, and he said he was on jury duty. I asked him, “On what jury duty”, and he said “The Fielder case”. I said “Boy, they must be out to their minds to want someone like you. Why did they pick you?” Jimmy said, “Cause I’m an upstanding citizen.” We laughed, and then he said taht [sic] they asked a lot of questions and then either “you can’t tell themeverything [sic]” or “you have to say the right thing” to be picked.” I don’t know that much about the case, but I commented that I had heard on T.Y. or read in the paper that Mrs. Fielder had killed her husband. Then I said that she must have had a reason. Then I said, “But no matter, she killed her husband.” Jimmy sorta hesitated, then said “I’m not supposed to talk about this. But, boy, you oughta see the evidenee [sic] they got. The bitch did kill him, but that s not what they [sic] trying to prove. He then said something to the effect that they were trying to prove she had a reason or was trying to protect herself. Then he said, “You don’t know what he did to her — you have to look at all the evidence before you can draw a conclusion.” Then he said, “But you know me, for some money now, I’ll say anything.” I said, “Quit you’re lying. I know you better than that.” We all laughed. Then he said he had to go; that he had two people waiting in the car and they were going to a friend’s house. I’m not positive, but I don’t recall Jimmy ever saying that he had made up his mind that Mrs. Fielder was guilty. Jimmy came by the next week at lunch time, but Curtis and I were still in bed. We didn’t talk for long because he was on a lunch break. We didn’t talk about the fielder [sic] trial at all. On Tuesday, September 28, 1982, Fielder made a motion to discharge the jury and declare a mistrial. The court continued its in-camera proceedings by questioning each juror individually, out of the presence of the other jurors, as to whether they had either been contacted by or initiated contact with outside persons for the purpose of discussing the case. During the in-camera proceedings, the court questioned juror Fowler. Fowler testified that he had neither been contacted by nor initiated contact with any person not a member of the jury concerning the present case and his services as a juror. Fowler admitted that he knew Janice Wade and Curtis Young and that he had visited Wade’s home recently. Fowler stated that he had not talked to Wade about the case but that she had seen him, Fowler, on TV. He testified that during his visit to Wade’s home, that neither Young nor Wade undertook to discuss the case with him but they did mention him, Fowler, being on TV. Fowler stated that he told them that he wasn’t supposed to discuss the case. He testified that he had been to Wade’s home twice since he had been on the jury, but that he only saw and spoke to Young during the first visit. Fowler testified that at no time did he discuss the evidence in the ease with either Young or Wade. He stated that he never expressed an opinion as to Fielder’s guilt or innocence during either visit and that Wade had never said anything concerning Fielder’s guilt or innocence. Fowler did testify that Young had expressed his opinion of the case, but that it was nothing that would in any way affect his deliberations as a juror and that he could entirely disregard Young’s statements. He further testified that nothing that either Wade or Young may have said would in any way influence his verdict. At the conclusion of the court’s questioning of jurors, the affidavits of both Young and Wade were entered into the record as court’s exhibits. The court considered all the evidence produced at the in-camera proceedings and overruled all of Fielder’s motions for mistrial and to discharge the jury. At the hearing on Fielder’s motion for new trial the testimony of Young was substantially the same as appeared in his prior statement. Young testified concerning statements made by Fowler about how he came to be on the jury and stated, “[h]e told Janice that you could — if you answered the right questions, you could be on the jury.” Young testified that Fowler discussed items of evidence admitted at trial. He specifically testified that Fowler discussed pictures showing the bullet holes in Darwin Fielder’s body. Young was then questioned about Fowler’s statement: [By counsel for appellant] Q. And what did he say about the pictures showing the bullet hole in the hand? A. He said he thought she was guilty. Q. Specifically, Mr. Young, what did— and use just as close to the exact words as you can, what Mr. Fowler said that you heard. A. He said he thought she was guilty, but for enough money, you know, he would say anything. Young testified that Fowler had visited Wade’s home twice but, that he had not spoken to or seen Fowler during the second visit. On cross-examination, Young was questioned about Fowler’s statement: [By the State] Q. Okay. You’re not saying that Mr. Fowler ever asked you for any money, are you? A. No. Q. You’re not saying that Mr. Fowler ever asked you to ask Mr. Haynes for any money, are you? A. No. Upon further cross-examination Young admitted that he never represented to Fowler that he, Young, knew anything about the case, was a witness in the case or knew any of the witnesses and that he never told Fowler anything about any evidence in the case. Young testified that he never offered Fowler any money or anything else to affect his verdict. Wade also testified at the hearing on Fielder’s motion for new trial. On direct examination by counsel for appellant, Wade testified that she had heard about the case through television and the newspapers pri- or to the time she learned that Fowler was on the jury. She testified that upon questioning Fowler about his selection as a jur- or, that Fowler told her that he had to answer certain questions before he was chosen as a juror. Wade then testified that she discussed some of the facts and evidence in the case with Fowler. Wade was then questioned about such discussion: [By counsel for appellant] Q. All right. And what — do you recall what you discussed? A. Well, it was something — I was saying something to him about, if she killed him, she must have had a reason. I said, but she killed him, and he was saying something to me about but that you have to see the evidence, or something like that. Wade further testified that Fowler mentioned “[sjomething about a chair and some pictures” admitted as evidence at trial. Wade did not recall Fowler expressing an opinion about Fielder’s guilt or innocence: Q. (By Mr. Gandy) Did he make any statement to you at all about what he felt about Mrs. Fielder’s guilt or innocence at that time? A. I don’t understand. Q. Did he make any statement to you about what he thought the evidence had shown him up to that point? A. Well, no he didn’t. Well, it didn’t sound like he was making an opinion, I mean, that he had made up his mind or nothing. It was something like that he couldn’t — that I couldn’t say what happened, because well, like I didn’t know and I wasn’t down here to see what was going on or something, you know, to that effect. That I — well, he said something about, you couldn’t say, you had to see the evidence before you could, you know, I guess that’s what he meant, I don’t know. [Emphasis added.] Wade’s testimony concerning Fowler’s statement about money was substantially the same as appeared in her previous statement: Q. Did he make any statement to you about money? A. Yes. Q. What did he say? A. Well, jokingly to me — now, that just my opinion — he said, well, a little money I’ll say anything, or something like that, and I said — I told him that I knew he was kidding because I knew him better than that, and we laughed about it. Wade recalled Fowler relating some of the evidence to her: Q. Do you recall him making any statements about any of the attorneys representing Mrs. Fielder? A. Said that — something about “Racehorse” Haynes was trying— Q. Do you recall what he said? A. —trying to show that he was trying to hurt her or something like that. On cross-examination by the State, Wade testified that she had not attempted in any way to affect Fowler’s verdict. She testified that she never offered Fowler money nor anything else to affect his verdict. She stated that she never represented to Fowler that she knew any of the witnesses or had personal knowledge of any of the facts in the case. On redirect examination, Wade testified that she and Fowler did not discuss the Fielder case during their second visit. At the hearing, Fowler continued to deny discussing any aspect of the case with either Wade or Young. Fowler testified that he never discussed any of the evidence and that when Young brought the conversation up he, Fowler, told them that he was not supposed to discuss the case. He testified that he told Wade that he was on the jury only after she mentioned that she saw him on television. Fowler denied telling Wade about the process he went through to be selected as a juror and he specifically denied making the statement about money. Fielder contends that the evidence establishes that a juror conversed with unauthorized persons about the case without permission and outside the presence of the Court giving rise to a presumption of harm which the State failed to rebut. She asserts that the trial court abused its discretion in failing to grant her motion for mistrial and motion for new trial. We disagree. Fielder initially contends that the procedure utilized by the Tarrant County District Attorney’s office in obtaining the affidavits of Wade and Young was highly prejudicial to her. She complains that defense counsel should have been informed or consulted regarding the issuance of subpoenas for Wade and Young. She further complains of the fact that the affidavits were prepared in the presence of and by the prosecution only. We find no merit to her contentions in this respect. Defense counsel was informed of the issuance of the subpoenas and was present at the questioning of Wade and Young. We find no reason why defense counsel should have been consulted prior to the issuance of the subpoenas and Fielder cites no authority requiring same. We find that the testimony of Wade and Young at the hearing on motion for new trial was substantially the same as appeared in their previous statements. Fielder has failed to point out any variance between their testimony and statements. We find no prejudice to her in the preparation of the statements of Wade and Young. We find that Fielder’s motion for mistrial was properly overruled by the trial court. The evidence presented during the in-camera proceedings which supported her motion consisted of the affidavits of Wade and Young and the testimony of Fowler. The testimony of Fowler conflicted with the statements made by Wade and Young. Fowler admitted visiting Wade’s residence on two occasions, however, he denied discussing any aspect of the case with either Wade or Young and he denied expressing an opinion as to the guilt or innocence of Fielder. Fowler also testified that the fact that Young had expressed his opinion on the case would in no way affect his deliberations. We find that the trial court did not abuse its discretion in overruling Fielder’s motion for mistrial. See Stokes v. State, 165 Tex.Crim. 269, 305 S.W.2d 779, 780 (1957). In considering the motion for new trial, the evidence established that the present case was discussed during the first visit by Fowler to Wade’s home. Whether the discussion was initiated by Wade or Fowler and whether Fowler even participated in such discussion is immaterial. “It is generally presumed that a defendant is injured whenever an impaneled juror converses with an unauthorized person about a case.” Romo v. State, 631 S.W.2d 504, 506 (Tex.Crim.App.1982). “This presumption, however, is rebuttable; and on motion for new trial, if the State negates this presumption by showing that either the case was not discussed or that nothing prejudicial to the accused was said, then the verdict should be upheld.” Williams v. State, 463 S.W.2d 436, 440 (Tex.Crim.App.1971). We find that the State negated the presumption of harm in the present case by showing that nothing prejudicial to the accused was said. The evidence, at most, establishes that Fowler discussed certain evidence presented at trial with Wade as well as the manner in which he was chosen as a juror. Fowler’s statements concerning how voir dire operates were not prejudicial to Fielder. Fowler probably related to Wade the existence of photographs which showed the crime scene, but relating the existence of such evidence to Wade caused no harm to Fielder. Fowler may well have made a statement to the effect that: “[S]he killed him, but that’s not what they are trying to prove.” Such a statement would be entirely consistent with the evidence presented at trial and assertions on the part of Fielder that she shot Darwin in self-defense. We do not perceive such a statement as being prejudicial to her. This brings us to the final statement which is most likely attributable to Fowler, that he made a statement to the effect that “for a little money, I’ll say anything”. The statement was not made to Young or in response to any inquiry or statement by Young. In fact, Young overheard this statement while descending the stairs from the second floor of Wade’s home. The statement was made by Fowler to Wade, a close and long-time friend of Fowler’s. Wade testified that the statement was made jokingly and that she and Fowler laughed about it because, as she testified, “I told him that I knew he was kidding because I knew him better than that.” Even the affidavit of Young states that “[h]e [Fowler] laughed about it [the statement] but I think he was serious.” Under such circumstances, we find no prejudice to Fielder. We find that Fielder has failed to show that injury arose from the jury misconduct. We also find that the State adequately rebutted the presumption of harm arising from the discussion of the case by Fowler. See McMahon v. State, 582 S.W.2d 786, 793 (Tex.Crim.App.), cert. denied, 444 U.S. 919, 100 S.Ct. 238, 62 L.Ed.2d 175, reh’g denied, 444 U.S. 985, 100 S.Ct. 492, 62 L.Ed.2d 414 (1979). “It is well settled that issues of fact as to jury misconduct raised at a hearing on motion for new trial are for the determination of the trial judge. The court’s decision will not be reversed unless an abuse of discretion is shown.” Beck v. State, 573 S.W.2d 786, 791 (Tex.Crim.App. 1978) (citations omitted). We find no abuse of discretion in the present case. Fielder’s ground of error six is overruled. Fielder’s ground of error nine contends that the trial court erred in entering a finding as to the use of a deadly weapon in the absence of an affirmative finding by the jury. The indictment alleged that Fielder did “intentionally and knowingly cause the death of an individual, Darwin L. Fielder, by shooting him with a firearm.” The jury found Fielder not guilty of murder, but guilty of the lesser included offense of voluntary manslaughter. No special issues on the use of a deadly weapon were presented to the jury. The judgment and sentence includes the following statement: “The jury affirmatively found that a deadly weapon, to-wit: a firearm, was used during the commission of the offense.” Fielder filed a motion of judgment nunc pro tunc requesting deletion of the affirmative finding from the judgment, which motion was denied. Fielder asserts that the trial court erroneously entered an affirmative finding of the use of a deadly weapon in the absence of such a finding by the jury. We disagree. Fielder cites Barecky v. State, 639 S.W.2d 943 (Tex.Crim.App.1982), and Ex parte Thomas, 638 S.W.2d 905 (Tex.Crim. App.1982), as supporting her contention. These cases are distinguishable from the present case. In Ex parte Thomas, the defendant was convicted of aggravated kidnapping and the formal judgment recited that the jury affirmatively found “he used a firearm during the commission of the offense.” The verdict of the jury stated that the defendant was “guilty as charged in the indictment.” Ex parte Thomas, 638 S.W.2d at 906. The court granted the relief prayed for by appellant because “the indictment did not allege the use of a firearm in the commission of the offense, the use of a firearm was not an issue submitted to the jury, and the verdict ‘guilty as charged in the indictment’ did not amount to an affirmative finding that a firearm had been used or exhibited in the offense’s commission.” Ex parte Thomas, 638 S.W.2d at 908. In Barecky, 639 S.W.2d at 945, the court citing Ex parte Thomas, found that the trial court’s entry of an affirmative finding that appellant used a deadly weapon was improper where: The jury found appellant, “guilty as charged in the indictment.” The indictment contains no mention of a deadly weapon. Neither does the court’s charge to the jury. Thus, the court entered its finding as to use of a deadly weapon in the absence of such an “affirmative finding” by the appropriate trier of fact. This was improper. The indictment in the present case specifically alleges that the appellant caused the death of an individual by “shooting him with a firearm.” The court’s charge on voluntary manslaughter states in part: Now therefore, if you find from the evidence ... the defendant, Pamela Ruth McGoldrick Fielder, did intentionally or knowingly cause the death of an individual, Darwin L. Fielder, by shooting him with a firearm, ... [Emphasis added.] We find, therefore, that the present case is distinguishable from both Ex parte Thomas, and Barecky. We believe the court’s opinion in Ex parte Moser, 602 S.W.2d 530 (Tex.Crim.App.1980), is the controlling authority on the issue in the present case. In Ex parte Moser, the appellant argued that the jury failed to make an affirmative finding of use of a firearm. The court denied relief finding that: The only theory of guilt submitted in the court’s charge was that the applicant intentionally or knowingly caused the death of the individual by shooting him with a pistol. The jury found the applicant “guilty of murder as charged in the indictment.” In these circumstances, the verdict necessarily included a finding that the applicant committed murder by shooting the individual with a pistol. Therefore this verdict must amount to an affirmative finding that the applicant used a firearm in the commission of the offense. Id. at 533. The issue in Ex parte Moser is very similar