Full opinion text
OPINION W.C. DAVIS, Judge. Appellant was convicted in Harris County of capital murder. See V.T.C.A., Penal Code § 19.03. After the jury affirmatively answered the three special issues in Art. 37.071, V.A.C.C.P., the trial court imposed the death penalty as required by law. The indictment alleged the murder of Janet Caldwell in the course of committing and attempting to commit the underlying felony of robbery. V.T.C.A., Penal Code, § 19.03(a)(2). Twenty points of error are advanced by appellant on direct appeal. In one point he claims error in not quashing the indictment. In three points he contends the trial court erred in excluding for cause three prospective jurors in violation of Wither-spoon v. Illinois, 391 U.S. 511, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In five points of error appellant complains of the trial court overruling his motion to suppress and subsequent introduction into evidence of various physical items. In two points he complains of the admission of a witness’s written statement into evidence as impermissible bolstering and hearsay. In another point he claims that a witness’s on-the-scene oral identification statement was improperly admitted. In two points of error appellant argues that a witness’s in-court identification was impermissibly tainted by an improper line-up procedure, and that the trial court erred by not granting a mistrial when a witness mentioned the suppressed lineup. In one point he contends he was improperly denied a jury instruction on the lesser included offense of murder. In another point he complains of the trial court’s failure to grant a mistrial when the prosecutor commented on his failure to testify during final argument. Finally, in four points of error appellant contends that the evidence is insufficient to sustain either the guilty verdict or the affirmative answer given to all three special issues submitted at the punishment phase of trial. Given appellant’s claims of insufficiency as to both stages of trial, a recitation of the rather lengthy facts as shown by trial testimony is both necessary and helpful in this case. Thirty-five witnesses testified for the State during the guilt-innocence phase of trial including eye witnesses to the crime, witnesses who testified as to the subsequent conduct of the killer, and expert testimony regarding the physical and medical evidence introduced by the State. Viewed in the light most favorable to the verdict, the record reflects the following facts. On August 10, 1983, at approximately 8:00 p.m. the deceased, Janet Caldwell, left her home in her black Chevrolet pickup truck and drove to the Weingarten’s supermarket located on West 43rd Street in Houston to purchase groceries. The parking lot serving Weingarten’s and other businesses is bounded by West 43rd Street on the south and Oak Forest Drive on the west. On the same evening, Lisa Janda also drove to the Weingarten’s store and parked on the west side of the store next to the deceased’s truck. Pulling into the lot, Janda noticed the legs and tennis-shoe-encased feet of someone lying underneath the deceased’s parked truck. As she exited her own car and walked past the black pickup Janda greeted the unknown person but received no reply. At about the same time Ernest Warren, a casual acquaintance of the deceased, also noticed the deceased’s truck in the parking lot but did not see anyone standing around the vehicle. As Warren walked toward the entrance to the store he encountered the deceased, who was exiting the store carrying two grocery bags and a purse. The two exchanged brief pleasantries and went on their respective ways, Warren into the store and the deceased toward the rows of parked vehicles. LaVerne Morton was leaving the store by the west exit when he heard two screams and a cry for help. Approximately 70 to 100 feet away among the parked vehicles he observed a black male struggling with a white female next to a pickup truck. Morton testified that he saw the woman’s head bobbing back and forth like she was holding on to something. After the outcry he heard two gunshots in close succession, then saw the assailant run west across the parking lot. Pausing beside a trash dumpster located next to the Parade Green Thumb Nursery on Oak Forest Drive, the assailant dropped something beside the dumpster, then ran north on Oak Forest Drive. At trial, Morton identified appellant as the assailant based upon appellant’s physical description and clothing. Lynne Coleman testified that she also pulled into the Weingarten’s parking lot that evening and parked in a space in front and slightly to the left of the deceased’s pickup truck. She testified that the driver’s door to the truck was open, and through the window of the pickup she observed the arms of two people struggling. Being wary of the situation, Mrs. Coleman remained in her car throughout the incident and did not see the assailant, although she heard a gunshot during this time. Donald Austin was at Weingarten’s with his wife and brother-in-law on the evening in question. As he walked toward the entrance to the store, he heard a scream. He turned, didn’t see anything unusual, and turned back to continue. Hearing a second scream, he turned around and ran back toward the sound. After five or six steps he heard a gunshot or shots close together and saw the flash from the muzzle of the gun as it was fired. He observed two people, very close together, then a black man ran around the rear of the pickup, toward Oak Forest Drive. The man, who was wearing dark clothes with some type of lettering on the back of his shirt, tripped but picked himself up. He appeared to drop something at the dumpster, then turned right or north on Oak Forest Drive, and disappeared from view behind the nursery. Austin was the first individual to arrive at the victim’s side. Joe Cunningham had left the Weingar-ten’s store and was at his own car when he heard a scream and observed two people ahead struggling. He saw a black male pull a pistol out and shoot the white woman. According to Cunningham, the assailant had shoved the woman back or pushed away from her. Then he had reached back, pointed the gun with his right hand and shot her. The assailant stumbled and then ran in the opposite direction toward a Gulf Service Station across the street from the parking lot and nursery on Oak Forest Drive, carrying what looked like a gun and a purse. Within 15 minutes police returned to the scene with a suspect. Cunningham went over to see the black male sitting in the back of the police car. Although he could not positively identify the man as the deceased’s assailant since the killer had worn a white cloth over his face during the incident, Cunningham told police that the clothes, dark pants and dark shirt with white lettering, looked the same, and that the man in the back of the police car had the same build and features as the killer. Raul and Flor Monzon were crossing the intersection of Oak Forest and West 43rd Street when Mrs. Monzon heard a woman scream. Mr. Monzon pulled the car into a Gulf Service Station across the street from the parking lot. Through the windows of their car, the Monzons observed a black male running through the parking lot and up to a dumpster across the street from them. Mrs. Monzon observed a covering over the man’s face and testified he carried a gun in his right hand and a woman’s handbag in his left hand. The man was wearing dark pants and a dark shirt with white lettering. Mr. Monzon remembered the black male crouching behind the dumpster, his eyes moving back and forth, but could not remember specifics as to the man’s face or clothing. From the dumpster the man ran north up Oak Forest Drive and into a subdivision. The Monzons then drove over to the scene of the crime. Within 10 or 15 minutes after the man disappeared the police brought back a suspect who Mrs. Monzon identified as the man whose conduct she and her husband had observed. The basis of her on-the-scene identification was the man’s physical characteristics as well as the clothing he was wearing. At trial she identified the appellant as the man she saw in the patrol car. Two high school students, Donald McDaniel and Jerry Thompson, were working at the Oak Forest Gulf Station on the evening of August 10th. They heard screams and a gunshot. They saw a man back up from a pickup truck, turn and run toward the station and hide behind the dumpster across the street. The man was described as a black male, wearing dark clothes with something white over his face. The man was carrying a gun and a purse. As he crouched behind the dumpster, the man pointed a gun at the two young men across the street. Shortly thereafter the man ran from the dumpster, crossed the street and went behind the station. He was next seen running from behind the building down Oak Forest toward Overhill Street in the subdivision. Both boys remembered seeing Raul and Flor Monzon drive up and park in the station. McDaniel later identified the man brought back by the police to the crime scene as the man he had observed. Mr. and Mrs. Bruce Norton were also in the Weingarten’s parking lot at about 9:00 p.m. that evening. While walking toward the store Mrs. Norton heard a scream and a gunshot, and observed a black male dressed in dark clothes and tennis shoes walking quickly with a woman’s purse under his arm. She yelled to her husband, who turned his car around and chased the man. Mr. Norton saw the man go around the corner of the nursery. Following the man, Mr. Norton walked along the side of a building in the direction of the nursery. He found a purse lying beside a dumpster close to the nursery. Walking further down the street Mr. Norton observed the man throw what appeared to be a white cloth into the bushes, then disappear around the corner of a house. Mr. Norton walked over and observed the cloth on the ground, then walked around the corner on Overhill Street and down an alley until he came out on 43rd Street again. At trial both Mr. and Mrs. Norton testified that the man brought back to the crime scene appeared to be the same man they observed running from the scene ten or fifteen minutes earlier. Houston Police Officers James and Margie Curtis (formerly Margie Liescheski) were on routine patrol about 9:00 p.m. on West 43rd Street on the evening of August 10th when they stopped and checked with another unit driven by Officer David Cook. An unidentified male citizen drove up and informed the officers that a shooting had occurred in the Weingarten’s parking lot. Both units immediately left the scene and drove to the indicated general area, Officer Cook pulling into the west end of the lot while Officers Curtis pulled into the east end of the shopping center. Several moments after receiving the information of a shooting, Officers Curtis observed a man emerging from the dimly lit, isolated area behind the Weingarten’s store. When the young black male saw the patrol car, he turned and walked in the opposite direction. The officers pulled their patrol car up to the man, and Officer James Curtis got out and spoke to him. The individual, identified by both James and Margie Curtis at trial as appellant, denied any knowledge of a shooting, telling the officers he had been shopping inside the Weingarten’s store. Both officers testified that the appellant was sweating profusely, that his pants were ripped from his knee up to his crotch area, exposing his underwear, and that he carried no grocery bags. Appellant could provide no identification since he had “forgotten” his wallet, but identified himself as Charlie Livingston. Officer James Curtis then asked appellant if he would mind accompanying the officers to the other end of the parking lot while they investigated the alleged shooting. Appellant agreed. After a quick pat-down for weapons, appellant entered the back of the patrol car and the officers drove to the west end of the parking lot where a group of people were congregated near Officer Cook’s police unit. As they approached the scene the appellant asked what he was being charged with and was told that he was not being charged with anything at that time. Arriving at the scene, Officer Margie Curtis walked over to Officer Cook’s vehicle and found him broadcasting a description of the homicide suspect over the radio. She informed Cook that the description matched that of the man sitting in the rear of the Curtis patrol car. The officers allowed several eyewitnesses to separately observe appellant in the car. After being identified as the assailant, appellant was removed from the car, read his rights, thoroughly searched and handcuffed. A set of car keys was recovered from his pocket, and officers located appellant’s car parked behind the Gulf Service Station on Oak Forest Drive. According to employees at the station, the car had been parked at that location for at least two hours before the shooting. H.P.D. Officer Troy Blando testified that when he arrived at the scene at approximately 9:25 p.m. the victim was lying face up in the parking lot between two pickup trucks with a gunshot wound to her throat. He observed various personal items strewn around her body and that she was lying on the flap covering of a purse. Further inspection of the area disclosed a spent 9mm shell casing six to eight feet from the body. Upon being directed to the dumpster at the end of the parking lot about 230 feet west of the body, Officer Blando discovered the remainder of the deceased’s purse and contents. Walking north on Oak Forest Drive, Blando found a piece of white cloth covering a 9mm semi-automatic pistol. The pistol was loaded and cocked, containing six live rounds. Mr. Walter Duckett, a Houston restaurant owner, testified at trial that the pistol had been stolen from him on January 25, 1983. Further investigation revealed four footprints in damp soil leading from the area of the cloth and pistol and in a direction back toward the Weingarten’s store. Blando made a plaster cast of one of the prints. Appellant’s tennis shoes were confiscated and at trial, Wesley Sheldon, a latent fingerprint examiner with H.P.D. who is also experienced in footprint comparisons, testified that, although a positive identification could not be made, due to the many similarities of size, wear and pattern between the cast and the shoe there was a high probability that the shoe created the imprint preserved in the plaster. While he was detained at the crime scene, paper bags were placed over appellant’s hands. He was taken to the homo-cide division of the H.P.D. for a trace metal test to determine if he recently had held a metal object. After the bags were removed and the test explained to him, appellant became visibly nervous and began rubbing his hands together. H.P.D. Sargeant Osterberg was forced to hold appellant’s hands apart. At this time Osterberg noticed that appellant had what appeared to be a fresh cut on the palm of his left hand and soil particles on his arms and pants. Officer J.K. Jones conducted the trace metal test. After spraying appellant’s hands, he viewed them under ultraviolet light and observed a purplish black pattern in appellant’s right hand. Unfortunately, another officer who was assisting Jones, Officer Anderson, mistakenly switched off the light, plunging the room into darkness. When the light was turned back on, the dark pattern on appellant’s hand was replaced by a shiny spot. In full lighting the officers observed a large “gob” of spit in appellant’s hand. The officers then decided to test appellant’s waistline in case he had carried a weapon in the waistband of his pants. Due to appellant’s lack of cooperation, his hands were cuffed behind his back. Officer Jones then sprayed appellant’s chest area and switched the lighting, but discerned no type of pattern on the treated area. When the overhead lights were switched back on, appellant was observed to have spat upon his chest, with spittle still remaining on his lips and saliva running down from his mouth to his chest. The tests being inconclusive in nature, appellant was next interviewed briefly by Officer Anderson. After being warned of his rights, appellant told the officer, “I didn’t do anything. I don’t have anything to say.” Anderson left and a few minutes later Osterberg went into the room, and again warned appellant of his rights. Appellant said he understood his rights and that he would talk to Osterberg. He told the officer that he “wasn’t there,” “didn’t do it.” When the officer asked how his pants had gotten ripped to the crotch, appellant said it had happened while getting off a forklift at work that day. But when Osterberg asked appellant where he worked, appellant said that he did not want to talk anymore. At a lineup conducted a short time later appellant was required to wear the same clothing in which he was arrested and was the only individual in the lineup appearing in a dark shirt with white lettering. Ruling that the procedure was impermissibly suggestive, the trial court granted appellant’s pretrial motion to suppress any mention of the lineup. The next morning Sergeant Paul Motard took appellant from his cell and before a magistrate who again read him his Mi randa warnings. It was clarified that appellant was charged with capital murder. The officer was instructed to allow appellant to use the telephone. Appellant reached his grandfather on the third call and the man apparently told appellant to “tell the truth.” After hanging up the telephone, appellant confessed to the shooting. After signing a statement, appellant was taken to the crime lab where he gave written consent to have various hair samples taken. Afterwards, he was returned to the homicide division where he was again read the Miranda warnings and consented to a search of his residence approximately four miles from the crime scene. Appellant accompanied Sergeant Motard to that location, where a cardboard box containing ten 9mm Lugar cartridges was recovered. Store manager Ronnie Hubert testified that appellant had purchased a box of 9mm cartridges on March 11, 1983, from his sporting goods store. H.P.D. firearms examiner C.E. Anderson testified on the basis of tests he performed, the ammunition recovered in the search of appellant’s residence was made by the same manufacturer and was of the same caliber as the ammunition recovered from the pistol, that the spent cartridge case found close to the body of Janet Caldwell was fired from the pistol, and that a fired bullet jacket fragment removed from the deceased’s body was consistent with the manufacture, caliber and design of the spent shell easing and the ammunition recovered from appellant’s apartment. Anderson further testified that the shot was fired within 15 or 20 inches from the victim’s throat. Police chemist Donald Krueger performed tests on the recovered pistol and compared hair samples removed from the white cloth with known hair samples of appellant. He testified that the purplish to black color observed by Officer Jones on appellant’s right hand was consistent with a person holding an iron object such as the recovered weapon. The hair sample comparison was not conclusive, but it could be determined that both samples had similar pigmentation and were both Negroid in origin. The final witness for the prosecution was Dr. Vladmimir Parungao, assistant medical examiner for Harris County. Dr. Parun-gas testified that he performed an autopsy on the body of the deceased and determined the cause of death was due to a close range gunshot wound of the neck into the chest, through the throat. According to Dr. Parungao, the bullet traveled from front to back downward and toward the left, with an entrance wound nine and one-half inches from the top of the head and an exit wound eleven inches from the top of the head. There were no cuts, abrasions, or powder stippling anywhere on the deceased’s hands or fingers. Due to the level of entry and exit wounds, the pistol was almost level when fired. Except for appellant’s confession, the evidence outlined heretofore was submitted to the jury who returned a verdict of “guilty” in less than an hour and a half. At the punishment phase the prosecution produced several witnesses who testified as to appellant’s prior criminal record and reputation in the community. Charles Ed Smith testified that appellant had repeatedly stabbed him and his girlfriend Frankie in December of 1978. A former deputy district clerk testified that in connection with this incident appellant pled guilty to two counts of attempted murder and was sentenced to a ten-year probated term on each count. Other witnesses, including police officers and appellant’s high school principal, testified that appellant’s reputation in the community for being a peaceful and law abiding citizen was bad. In addition, a sheriff’s deputy told the jury that a homemade knife known as a “shiv”, fashioned out of a toothbrush, was discovered in appellant’s cell during a surprise search after he was arrested on the instant offense. The first and last witness for the defense was appellant’s mother, who testified that appellant was a good son and had been affected by his father’s death. She asked for the mercy of the jury. At defense request, all three special issues were submitted to the jury and each was subsequently answered in the affirmative. The trial court imposed the death penalty as required by Art. 37.071, supra. In his first point of error appellant contends that the trial court committed reversible error in denying his motion to quash the indictment, since the word “gun” failed to give adequate notice of the charge against him. The indictment alleged, in pertinent part, that the appellant was unlawfully while in the course of committing and attempting to commit the Robbery of JANET CALDWELL, hereinafter styled the Complainant, intentionally cause the death of the Complainant by shooting the Complainant with a gun. As a threshold matter, we agree with appellant that his motion, filed almost one year before the hearing on said motion was heard, was timely filed and properly before the trial court. See Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976). We may therefore reach the merits of his claim that the indictment should have been quashed since the State did not specifically plead what type gun was used. Appellant relies upon Art. 21.04, V.A.C.C.P. and Art. 21.11, V.A.C.C.P. and invokes Article I, Section 10 of the Texas Constitution. When a challenge to an accusation for failure to provide adequate notice on which to prepare a defense is properly and timely asserted with adequate statement of the manner in which notice is deficient, “fundamental constitutional protections are invoked.” Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986), citing Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977). Moreover, Art. I, Sec. 10 of the Texas Constitution mandates that the notice petitioned for must come from the face of the charging instrument. Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976), Voelkel v. State, 501 S.W.2d 313 (Tex.Cr.App.1973). The adequacy of the allegation must be tested by its own terms “in a vacuum, so to speak.” Adams v. State, supra, citing Bonner v. State, 640 S.W.2d 601 (Tex.Cr. App.1982). At the same time that an indictment must facially allege sufficient facts to give a defendant proper notice of the charge under Arts. 21.04 and 21.11, both supra, unless a fact is essential to notice, the indictment need not plead the evidence relied upon by the State. Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981); May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981); Phillips v. State, 597 S.W.2d 929 (Tex.Cr. App.1980). If additional information requested in a motion to quash is evidentiary in nature and not required for notice or plea in bar, the indictment is sufficient. The important question is whether a defendant has notice adequate to prepare his defense. Adams v. State, supra. In Adams, supra, the Court provided a three-step test for determination of this question: The first step in answering this (notice) question is to decide whether the charging instrument failed to convey some requisite item of ‘notice’. If sufficient notice is given, this ends our inquiry. If not, the next step is to decide whether, in the context of the case, this had an impact on the defendant’s ability to prepare a defense, and, finally, how great an impact. Adams v. State, 707 S.W.2d at 903. See also Labelle v. State, 720 S.W.2d 101 (Tex. Cr.App.1986). We need go no further than the first step. It is well settled that indictment language alleging the murder weapon as a “gun” is sufficient without further specific description of the type of gun. See Dickson v. State, 134 Tex.Cr.R. 22, 113 S.W.2d 528 (Tex.Cr.App.1938); see also, Nelson v. State, 573 S.W.2d 9 (Tex.Cr.App.1978). We find that the charging instrument in question did not fail to convey some requisite item of “notice”, but charged the commission of the offense “in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged.” O’Briant v. State, 556 S.W. 2d 333 (Tex.Cr.App.1977), citing Art. 21.11, supra. Appellant’s first point of error is overruled. In his second, third and fourth points of error appellant contends that the trial court’s exclusion of prospective jurors Yvonne Spillane, Inez McIntosh and Denise Cárcel Morgan, was in violation of the requirements of Witherspoon v. Illinois, supra, and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). In Witherspoon, supra, the Supreme Court held that a prospective juror may not be excluded by the trial court for cause unless the record reveals with absolute and unmistakable clarity that the venireperson would automatically vote against imposition of capital punishment regardless of the evidence introduced, or that the person’s attitude regarding the death penalty would prevent him from making an impartial decision as to the defendant’s guilt. This strict standard was modified by the Court decision in Adams, supra, to read, “[A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” 448 U.S. at 45, 100 S.Ct. at 2526. (Emphasis in original.) This Court has previously held that prospective jurors whose views would have prevented or substantially impaired their performance as jurors in accordance with their instructions were properly excused in light of Witherspoon and Adams, both supra. See Carter v. State, 717 S.W.2d 60 (Tex.Cr.App.1986); Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981); Smith v. State, 676 S.W.2d 379 (Tex.Cr.App.1984); Bird v. State, 692 S.W.2d 65 (Tex.Cr.App. 1985); Griffin v. State, 665 S.W.2d 762 (Tex.Cr.App.1983); Porter v. State, 623 S.W.2d 374 (Tex.Cr.App.1981); Bass v. State, 622 S.W.2d 101 (Tex.Cr.App.1981). Finally, in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Adams standard was declared proper and preferable to the strict standard of Witherspoon. Witherspoon is no longer the standard for determining whether a challenge for cause by the State has been improperly granted. Montoya v. State, — S.W.2d- (Tex.Cr.App. No. 69,186, delivered February 18, 1987); Carter v. State, supra; Sharp v. State, 707 S.W.2d 611 (Tex.Cr.App.1986); Bird v. State, supra. In evaluating a prospective juror’s responses, we recognize that we are faced with only a cold record; therefore, we give deference to the trial judge who is in a position to evaluate the venireman’s sincerity and demeanor. Barnard v. State, 730 S.W.2d 703 (Tex.Cr.App.1987). McCoy v. State, 713 S.W.2d 940 (Tex.Cr.App.1986); Bird v. State, supra. See also Phillips v. State, 701 S.W.2d 875 (Tex.Cr.App.1985); Franklin v. State, 693 S.W.2d 420 (Tex.Cr. App.1985). In addition to the above, it is noted that Art. 35.16, V.A.C.C.P. provides in pertinent part: (b) A challenge for cause may be made by the State for any of the following reasons: (1) That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty; * * * * * * (3) That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment. Certainly, bias or prejudice against the range of punishment applicable by law, including the death penalty, is a proper area of inquiry before exercising a challenge for cause or a peremptory challenge. See Carter v. State, supra; see also Mathis v. State, 576 S.W.2d 835 (Tex.Cr.App.1979); Martinez v. State, 588 S.W.2d 954 (Tex.Cr. App.1979). With all of this in mind, we turn our attention to the examination of the three venirepersons at issue. We have reviewed the voir dire of all three prospective jurors and will first turn to Yvonne Spillane. The voir dire examination of Ms. Spillane covers fifty pages of the record and initially shows a vacillating prospective juror. She first said that she could answer all three special issues in the affirmative, but retracted her response when informed that the unanimous affirmation of the special issues would result in assessment of the death penalty. When asked if she was capable of taking the juror’s oath, she initially told the court that she would “prefer not to.” Pressed for a definite response, she stated, “Not today, no.” With the agreement of both the State and appellant, Ms. Spillane was excused for the evening to spend some time thinking about the questions propounded to her. The following morning Ms. Spillane was recalled and the questioning continued by both counsel and the trial judge. The record reflects that the venirewoman was even more adamant in her views that she would always answer “no” to one of the special issues and that she would refuse to take or abide by her oath as a juror: Q. Are your feelings so firm that you would automatically vote against the death penalty regardless of what the facts of the case might show? A. Yes, Ma’am. * * He * * * Q. Are you further telling me that in order to avoid the imposition of the death penalty that you would answer one of the special issues ‘No’ simply to avoid the imposition of the death penalty? A. Yes, Ma’am. * * * * * * Q. Rather than say just ‘Yes’ or ‘No’, state in your own words how you feel? A. Basically, I — this whole thing comes if I take the oath. I have to be completely honest and I would have to answer the questions ‘Yes’ but I’m not able conscientiously or emotionally right now to take that oath and handle that.... ****** Q. Are you saying then you could not abide by your oath? A. Yes, Ma’am. ****** Q. There are some people that are so unalterably opposed to the death penalty that if I were to say, for instance, ‘Mr. Jones, I have selected you to be a juror in this case,’ that they would refuse to take the oath; Do you follow, you understand that example? A. Yes. Q. Would that describe you? A. Yes. ****** Q. Are you telling me then you could not set aside your feelings? A. No. Q. In sentence form? A. No, Ma’am, I could not set aside those feelings. In overruling the objection to granting the State’s challenge for cause, the court clearly stated its basis for exclusion as being that Ms. Spillane would automatically vote against the death penalty and would refuse to take the oath. See With-erspoon v. Illinois, supra. Certainly, under the more relaxed Adams standard enunciated, Ms. Spillane was properly excluded since her views on capital punishment would “prevent or substantially impair the performance of (her) duties as a juror in accordance with (her) instructions and (her) oath.” Wainwright v. Witt, supra; Adams v. Texas, supra. Appellant’s second point of error is overruled. Prospective juror Inez McIntosh initially stated that she could answer “yes” to the special issues but “no” to the death penalty. Further examination reflected her mind-set against both the death penalty and serving on a capital jury: Q. Are you telling me in each and every capital murder case you would always say ‘No’ to the death penalty? A. I would, yes. * * * * * * Q. Are you telling me your opposition to the death penalty is so great that you could not serve as a juror in a capital murder case? A. Yes, that’s right. Q. No matter what the facts are? A. That’s right. * % * * sjc * Q. Are you saying because of your feelings about the death penalty you could not take that oath and abide by that oath? A. That’s right. * * * * * * Q. Are you telling me that you would refuse to be a juror in this case? A. I would if it’s capital punishment. Q. Ma’am? A. Yes. After answering the trial judge’s questions Ms. McIntosh was also questioned by attorneys for the State and the Defense, but her viewpoints on capital punishment and on taking the required oath remained the same. Further questions by the court only underscored her personal opposition to the death penalty and taking the oath. Given the proper degree of deference to the trial court’s determination, we conclude from the record that prospective juror McIntosh was properly excused upon challenge for cause based on the Adams standard adopted in Witt, supra. The trial court did not err in overruling appellant’s challenge. Granviel v. State, supra; Carter v. State, supra; McCoy v. State, supra; Bird v. State, supra; Phillips v. State, supra. Appellant’s third point of error is overruled. In his fourth point of error appellant complains of the exclusion of prospective juror Denise Cárcel Morgan. He describes Ms. Morgan as the classic “equivocating juror” and contends that she was unable to make a clear expression of whether or not her views on the death penalty would result in an inability to follow the law. Ms. Morgan’s examination covers eighty-five pages of the record. Initially, she states that only God may decide guilt or innocence and that the possibility of a death penalty would definitely affect her decision. Then she says that she could participate but would reserve judgment before deciding. The court next focuses on her personal feelings on punishment: Q. Let’s talk some more on your feelings on the death penalty. How do you feel about the death penalty? A. I totally disagree about the death penalty; I do. * * * * * * Q. If they were proved to you beyond a reasonable doubt that those answers should be ‘yes’ could you answer them ‘yes’ knowing that the result would be the death penalty? A. No, I couldn’t. * * * * * * Q. So both decisions life imprisonment or the death penalty are disturbing to you; is that right? A. Definitely, because I know that it is taking anybody’s joy. I know I wouldn’t want to be in jail for life. Q. Are you saying then that you could not make a decision as to guilt or innocence because of your strong feelings? A. Yes. Ms. Morgan related to the court that her cousin had been found guilty of murder while Ms. Morgan believed her innocent. This fact added to her strong personal feelings against making any decision or in taking the oath. When questioned further about her duties as a juror, Ms. Morgan again vacilates but ultimately asserts her inability to perform as a juror: Q. (State’s Attorney): If we asked you to take this oath as a juror to follow the law and the evidence and a true verdict render would you refuse to take the oath? A. Yes, because I don’t want to follow man’s law. * * * * * * Q. Here's my question, it is simply: could you personally ever sit on a jury panel that caused a person to get the death penalty? A. No. ⅛ * # % * ⅜ Q. If you were on, would you always answer one of these questions ‘no’ to be sure he got a life sentence? A. I would answer them ‘no’ because I definitely wouldn’t want to give him death, but that's if (she were to serve). _I’m not going to argue. I’m not going to break down and give, you know, the death penalty. I just don’t want to be a partaker. That’s plain and simple. That’s the way I feel. * # * * * * Q. (Defense Attorney): _ Can you set your feelings aside and can you take that oath as a juror to sit in here as a juror and listen to the evidence and base your decision solely upon the evidence that you hear? THE JUROR: No, I don’t want to set my feelings aside. * * * * * # Q. That’s, I guess, really what the question boils down to. We know you don’t want to take that oath. We know that as you’ve told us many times. A. If the Court asks me to I would have to. * * * * * * Q. Is what you’re telling me then, Miss Morgan, if you did take the oath, if the Judge asked you to, what you’re telling me deciding on these three issues then you’d disregard that oath, wouldn’t follow it and would automatically answer one or more of those questions ‘no’ regardless of what the facts proved to you were (indicating)? A. I stated that the first time, if I was on the jury. Q. (State’s Attorney): Can you take the oath or would you refuse to take it? Put it in your own words, please. A. Plain and simple I don’t want to take it. Q. All right. And is your feeling about not wanting to take it so strong that you would refuse to take it because of the personal damage it would do to you if you did take it? A. Yes. * # % * * * _ Could you ever in any circumstance answer all three of these questions ‘yes’ and give somebody the death penalty? A. I said no earlier. Q. And is that the way you feel? A. Yes. In excluding Ms. Morgan, the trial court noted that the prospective juror clearly said that her personal convictions and beliefs prevented her from making a decision at either trial stage regardless of the amount of evidence. Not only was Ms. Morgan opposed to the death penalty but also to life imprisonment. She clearly stated that she could not follow the law upon which the State is entitled to rely. Even beyond that, she did not want to participate in any manner in the trial. Reluctant to disqualify a juror after a two-hour voir dire, the trial judge nevertheless granted the State’s challenge for cause, finding the court had “no choice under the law.” We agree with the determination of the trial court. The record makes clear that Morgan’s views would prevent or substantially impair the manner in which she carried out her duties in accordance with her oath and instructions. See Montoya v. State, supra; Carter v. State, supra; McCoy v. State, supra; Bird v. State, supra. Appellant’s fourth point of error is overruled. In his fifth, sixth, seventh, eighth and ninth points of error the appellant contends that the trial court erred in denying his motion to suppress and allowing into evidence over objection a box of Remington and Peters 9mm cartridges, a pair of tennis shoes, and certain items of clothing which he claims were seized as the product of his illegal arrest. Appellant intially argues that his detention violated his rights under the Fourth Amendment to the United States Constitution and Art. I, § 9 of the Texas Constitution. Specifically, appellant argues that officers Curtis lacked probable cause for the initial intrusion and that his subsequent detention was based upon a mere inarticulate hunch that he was involved in some sort of criminal activity. Moreover, appellant urges that his acquiescence to accompany the police officers should not be construed as being consensual. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). The State responds that appellant was seized with probable cause or, in the alternative, the seizure was nevertheless reasonable under the circumstances. After a hearing on appellant’s motion, the trial court found the officers’ initial stop and detention of appellant was reasonable and proper, and that his subsequent conduct in accompanying the officers to the scene of the crime where he was subsequently arrested was voluntary in nature. Circumstances short of probable cause for an arrest may justify a temporary investigation or detention because investigation is a lesser intrusion on personal security than an arrest. Fatemi v. State, 558 S.W.2d 463 (Tex.Cr.App.1977). An in-articulable hunch or suspicion that a person has or is committing a crime is not sufficient; a peace officer must have specific and articulable facts which, in light of his experience and personal knowledge, taken together with rational inferences from these facts, would reasonably warrant intrusion of an individual stopped for further investigation. Schwartz v. State, 635 S.W. 2d 545 (Tex.Cr.App.1982); McMillan v. State, 609 S.W.2d 784 (Tex.Cr.App.1981). However, an officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. See Mays v. State, 726 S.W.2d 937 (Tex.Cr.App.1987); Gearing v. State, 685 S.W.2d 326 (Tex.Cr.App.1985); Johnson v. State, 658 S.W.2d 623 (Tex.Cr.App.1983). Turning to the case before us, we find that the officers were justified in their initial detention of appellant. Appellant was first observed halfway down a dimly-lit alleyway between two buildings. His reaction upon seeing the police vehicle was to turn around and walk rapidly in the opposite direction. Officers Curtis drove after him and were able to monitor his demeanor and physical appearance before stopping him. Both officers testified that appellant was “sweating profusely,” was dirty and had torn his pants to the extent that his underwear was visible. Discovery of such an individual in the general area where a crime has been reported supports at least a brief investigative detention for purposes of gathering further information. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (Tex.Cr.App.1968). After being stopped the appellant denied any knowledge of a shooting and told officers that he had been shopping in the Wein-garten’s store. The investigating officers were understandably suspicious of him due to the fact that appellant was not carrying any grocery bags and because of the incongruity of his physical appearance and demeanor with that normally associated with one who has concluded a shopping trip. However, given the lack of specifics known to the officers regarding the alleged crime, we cannot say that the officers had sufficient information at this time to directly connect appellant with the alleged crime, so that if appellant is correct in his claim that he was arrested at this point, we must find that arrest to be invalid. See Daniels v. State, 718 S.W.2d 702 (Tex.Cr.App.1986) and Johnson v. State, supra. An individual is arrested when he has been actually placed under restraint or taken into custody. Art. 15.22 V.A.C. C.P. An arrest is complete when a person's liberty of movement is restricted or restrained. Hoag v. State, 728 S.W.2d 375 (Tex.Cr.App.1987); Brewster v. State, 606 S.W.2d 325 (Tex.Cr.App.1980); Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973). A person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the stop or intrusion, a reasonable person would have believed he was not free to leave. Florida v. Royer, supra. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (rehearing denied 448 U.S. 908, 100 S.Ct. 3081, 65 L.Ed.2d 1138); Dancy v. State, 728 S.W.2d 772 (Tex.Cr.App.1987); Russell v. State, 717 S.W.2d 7 (Tex.Cr.App.1986); Clark v. State, 627 S.W.2d 693 (Tex.Cr.App.1982). However, where a person voluntarily accompanies investigating police officers to a certain location, and he knows or should know that the police officers suspect that he may have committed or may be implicated in committing a crime, that person is not “restrained” or “in custody” as contemplated by Art. 15.22, supra, so that his Fourth Amendment or Art. I, § 9 rights are implicated. See Dancy v. State, supra. Once the circumstances show that the person is acting upon the invitation, urging or request of police officers, and not the result of force, coercion or threat, the act is voluntary and the person is not then in custody. See Shiflet v. State, 732 S.W.2d 622 (Tex.Cr.App.1985). In Shiflet v. State, supra, this Court considered the question of custody in terms of the Fifth Amendment and Miranda, supra. More recently, in Dancy v. State, supra, we considered the question of custody vis a vis that appellant’s claim of an illegal arrest under the Fourth Amendment and decided: Where a person voluntarily accompanies police officers, who are then only in the process of investigating a crime, to a certain location, and he knows or should know that the police officers suspect he may have committed or may be implicated in committing the crime, we are unable to hold that under the circumstances such a person is restrained of his freedom of movement. Under those circumstances, he is not in custody. See and cf. Ussery v. State, [651 S.W.2d 767, 770 (Tex.Cr.App.1983) ] supra; Martinez v. State, 635 S.W.2d 629 (Tex.App. — Austin 1982); Stone v. State, 583 S.W.2d 410 (Tex.Cr.App.1979); Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985); Gregg v. State, 667 S.W.2d 125 (Tex.Cr.App.1984); Gutierrez v. State, 708 S.W.2d 937 (Tex. App. — Corpus Christi, 1986); Mallard v. State, 708 S.W.2d 27 (Tex.App. — Texar-kana 1986). Dancy v. State, 728 S.W.2d at 778. In the instant appeal, appellant urges this Court to construe his acquiescence in accompanying the investigating officers as being non-consensual because of the officers “show of authority.” However, a review of the record clearly demonstrates that no force, threats or coercion, explicit or implicit, was used to entice appellant’s entry into the police car. Both officers’ uncontroverted testimony was that Officer James Curtis asked appellant if he would mind getting into the car and riding around the parking lot to locate the scene of the alleged shooting. Appellant replied that he would not mind. It was explained to him that he was not under arrest, but that it was departmental policy to check anyone riding with an officer for weapons. The frisk was performed quickly, without appellant being asked to empty his pockets. Appellant entered the rear of the vehicle and rode around the lot without benefit of supervision by an officer riding with him. Nor was appellant handcuffed or restrained in any unusual manner. The evidence revealed that prior to the eyewitness’ description being broadcast, appellant was free to leave and was treated as if he was free to leave. Penry v. State, supra. Findings by the trial court should not be disturbed, absent a clear abuse of discretion. From the totality of circumstances there was ample evidence to support the finding that appellant was not arrested or illegally detained by Officers Curtis as contended. See Dancy v. State, supra. We find that the officers were justified in initially detaining appellant in order to preserve the status quo momentarily while obtaining more information. In light of the knowledge that a shooting had recently occurred, the appellant’s appearance and the implausibility of his explanation for his presence in the area took on special significance. See Perez v. State, 548 S.W. 2d 47 (Tex.Cr.App.1977). Moreover, appellant’s consent to accompany the investigating officers, even in light of his own articulated knowledge that he might be criminally implicated, vitiates his contention that he was in any way officially restrained in his freedom of movement so as to be “in custody.” See Shiflet v. State, supra; Dancy v. State, supra. We find that the State met its burden of proving the legality of its conduct in the matter of appellant’s war-rantless detention and subsequent arrest based upon eyewitness identification. See LaLande v. State, 676 S.W.2d 115 (Tex.Cr. App.1984); Hooper v. State, 533 S.W.2d 762 (Tex.Cr.App.1976). The investigative stop and detention of appellant being proper under either the Fourth Amendment or Art. I, § 9 of the Texas Constitution, see Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983), with his arrest following identification as the assailant at the scene of the shooting, we also do not find that the subsequent “fruits” of that seizure, a pair of tennis shoes, certain items of clothing, and a box of 9mm cartridges, were improperly admitted into evidence at trial. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Cf Rodriguez v. State, 578 S.W.2d 419 (Tex.Cr.App.1979); Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App. 1975). Appellant’s fifth, sixth, seventh, eight and ninth points of error are overruled. In his tenth point of error appellant argues that the evidence is insufficient to support his conviction under V.T.C.A., Penal Code., § 19.03, supra. He contends that his identification as the gunman was highly suggestive due to the fact that the police transported appellant to the scene of the crime, and that an improper lineup took place at the station house. He argues that testimonial evidence relating to the gunman’s clothing amounts only to a tenuous identification. Finally, it is claimed that the physical evidence does not conclusively tie appellant as gunman to the shooting beyond a reasonable doubt. The standard for appellate review of the sufficiency of the evidence is the same whether the case is based upon direct or circumstantial evidence. “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Mat-tias v. State, 731 S.W.2d 936 (Tex.Cr.App. 1987), and the cases cited therein; Scott v. State, 732 S.W.2d 354 (Tex.Cr.App.1987), and the cases cited therein; Rector v. State, 738 S.W.2d 235 (Tex.Cr.App. 1986); Fierro v. State, 706 S.W.2d 310 (Tex.Cr. App. 1986). In both direct and circumstantial evidence cases, the reviewing court will look at all the evidence, both proper and improper, in consideration of that issue. Dunn v. State, 721 S.W.2d 325 (Tex.Cr. App.1986); Scott v. State, supra, citing Houston v. State, 663 S.W.2d 455 (Tex.Cr. App.1984). In the instant case the record reflects that there were several eyewitnesses to the shooting. Donald Austin, Joe Cunningham and Flor Monzon all testified that the gunman was a black male wearing dark pants and a dark shirt with white lettering. Mary Norton and Jerry Thompson testified in addition that the gunman wore tennis shoes. Other witnesses testified that the gunman had a white cloth or covering over his face. There was testimony from several sources that a struggle occurred between the deceased and the gunman, and that the gunman, after separating himself from the woman, reached back and fired one or two shots. The evidence is uncon-troverted that the cause of death was a gunshot wound to the neck. Several witnesses said that the gunman stumbled or fell as he left the scene with purse and gun. Bruce Norton pursued the gunman and discovered the purse at a dumpster by or behind which witnesses testified the gunman crouched or paused before dropping some item. Norton also saw the gunman fling a white object, later determined to be a previously-fired 9mm pistol covered by a white cloth, into some bushes. A cartridge case found a short distance from the body of the deceased was found to have been fired from the gun, and a bullet fragment taken from the body was consistent with that of the unfired ammunition found in the clip of the gun and at appellant’s residence. The white cloth contained minute facial hair samples consistent with appellant’s pigmentation. In addition, a plaster cast made of a footprint found in the line of the gunman’s flight demonstrated more than a casual likeness to the tennis shoe worn by appellant in size, pattern and descriptive characteristics. When approached by investigating officers James and Margie Curtis, appellant’s appearance and story were unusual and contradictory. He told the officers that he had been in the Weingarten’s store shopping, but had no groceries and no wallet. Accepting appellant’s own story he was, as witnesses testified, inside an air-conditioned store, but was sweating profusely as if having just engaged in some strenuous activity such as running. He was disheveled, clothes stained and ripped, traces of fresh soil on his arms and legs. Turning to appellant’s specific claims, we note first that the trial court suppressed the potentially suggestive lineup identification, and second, that the gunman’s description was given to police at the scene within a very short time after commission of the crime and before the eyewitnesses viewed appellant as he sat in the rear seat of the Curtis patrol car. At trial, LaVerne Morton, Joe Cunningham, Flor Monzon, Donald McDaniel, Mary Norton and Bruce Norton all testified that appellant was the gunman. They explained that their identification was based on either his clothing, his build, or both. Each witness testified that their identification was the result of viewing the gunman at or near the scene of the crime. The fact that a witness cannot give a positive identification of another person goes to the weight of his testimony, not to its admissibility; therefore, the lack of a positive identification is a jury issue. Moore v. State, 700 S.W.2d 193 (Tex.Cr. App.1985); Garza v. State, 633 S.W.2d 508 (Tex.Cr.App.1982); Valenciano v. State, 511 S.W.2d 297 (Tex.Cr.App.1974). A clothing description, combined with other evidence regarding the circumstances of an offense has been held to be sufficient in a circumstantial evidence case. See Bonner v. State, supra; Garza v. State, supra. Here, the State proved other circumstances linking appellant with the commission of the crime. Through testimony and physical evidence it was shown that appellant bought a box of ammunition similar to cartridges found in the pistol and near the body before the date of the shooting. In Schroeder v. State, 543 S.W.2d 382 (Tex.Cr.App.1976) the defendant’s possession of the same type of ammunition as that used in the shooting, when combined with other evidence, was held to be sufficient to prove identity. There is also the link of the plaster cast comparison with appellant’s own tennis shoes. A shoe print comparison less than positive may still be sufficient to prove identity when combined with other evidence. See Carlisle v. State, 549 S.W.2d 698 (Tex.Cr.App.1977). In addition, the State presented evidence showing the appellant’s presence near the scene at least two hours before and within ten or fifteen minutes after the shooting, as well as his apparent flight from the Weingarten’s parking lot at the approximate time of the shooting. These are also circumstances which, if standing alone, might not be sufficient to sustain a conviction. Nevertheless, they are factors from which an inference of guilt may be drawn. See Harris v. State, 645 S.W.2d 447 (Tex. Cr.App.1983); Valdez v. State, 623 S.W.2d 317 (Tex.Cr.App.1981); McWherter v. State, 607 S.W.2d 531 (Tex.Cr.App.1980). We agree with the State that appellant’s post-arrest conduct in attempting to suppress evidence by spitting on himself and rubbing his hands together after officers explained why they wished to conduct a trace metals test is also probative of guilt. See Rodriguez v. State, 577 S.W.2d 491 (Tex.Cr.App.1979); Maddox v. State, 288 S.W.2d 780 (Tex.Cr.App.1956). In circumstantial evidence cases it is not necessary that every fact point directly and independently to the defendant’s guilt. It is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Russell v. State, 665 S.W. 2d 771 (Tex.Cr.App.1983); Vaughn v. State, 607 S.W.2d 914 (Tex.Cr.App.1980); Flores v. State, 551 S.W.2d 364 (Tex.Cr. App.1977). The cumulative evidence presented here was sufficient for the rational trier of fact to find all the essential elements of capital murder under § 19.03(a)(2), supra, beyond a reasonable doubt. See Jackson v. Virginia, supra. See also Fierro v. State, supra. Rector v. State, supra; Russell v. State, supra; O’Pry v. State, 642 S.W.2d 748 (Tex.Cr. App.1981); Brasfield v. State, supra. Because, after viewing the evidence in the light most favorable to the verdict, there is no other outstanding reasonable hypotheses, we find that the evidence is clearly sufficient to support appellant’s conviction under § 19.03, supra. Russell v. State, supra; Banks v. State, 643 S.W.2d 129 (Tex.Cr.App.1983); O’Pry v. State, supra. Appellant’s tenth point of error is overruled. Appellant asserts in his eleventh and twelfth points of error that the trial court reversibly erred in permitting the prosecutor, over objection, to introduce into evidence the written statement of witness Jerry Thompson, since such evidence constituted hearsay and improper bolstering of the witness. The State responds that the statement was admissible under Art. 38.24, V.A.C.C.P. On direct examination the prosecutor made no reference to Thompson’s written statement to police. It was elicited from the witness that the gunman was wearing some type of dark clothing and had a white scarf or cloth across his face, so that Thompson could not positively identify appellant at the scene of the shooting when given the opportunity to view appellant sitting in the rear of the police car. On cross-examination defense counsel questioned Thompson as to his testimony that he had walked over to the dumpster across the street from the service station and had picked up a purse, but had put the purse back down after “some man” told him to do so. The questioning then continued as to the identity of this other individual, and it was established that the unnamed man was elderly, “medium height and skinny.” Apparently, with the strategy to discredit the witness, defense counsel then read from a portion of the witness’ statement given to police which dealt with the witness’ description of the gunman at the scene. Cross-examination was concluded after Thompson admitted he told the police at the scene that appellant was “not the man.” On redirect the prosecutor had the witness identify the statement in question and offered the statement into evidence in its entirety over objection that the statement was hearsay and improperly bolstered the witness’ testimony. The trial court, outside the jury’s presence, ruled that the defense had opened the door for introduction of the rest of the statement by reading only a portion of that statement before the jury. The trial judge, concerned that the jury might be left with a “misapprehension”, overruled appellant’s objection and allowed the statement to be introduced in its entirety. We first turn our attention to the appellant’s contention that Thompson’s statement was inadmissible hearsay. “Hearsay” is defined as an out-of-court statement offered for the truth of the matter asserted. Phenix v. State, 488 S.W.2d 759 (Tex.Cr.App.1972), at 761, citing McCormick, J., Evidence, § 225 at 460; see also McKay v. State, 707 S.W.2d 23 (Tex.Cr. App.1985). An out-of-court statement offered for the purpose of showing what was said rather than the truth of the matter stated therein does not, however, constitute hearsay. McKay v. State, supra; Porter v. State, supra. See also Nixon v. State, 587 S.W.2d 709 (Tex.Cr.App.1979); Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976). In the instant case, the statement was introduced, not to prove the truth of the matter asserted, but to provide the context in which a particular statement was made so as to alleviate the poss