                              COURT OF APPEALS
              FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS
                                    AT DALLAS


                             NO.   05-83-01318-CR

JOHN DONALD MASSOUD,                                  FROM A DISTRICT COURT

     APPELLANT,

V.

THE STATE OF TEXAS,

     APPELLEE.                                        OF DALLAS COUNTY, TEXAS




            BEFORE JUSTICES STEPHENS, WHITHAM AND GUILLOT
                         OPINION BY JUSTICE STEPHENS
                                 MARCH     4, 1985


     John    Donald      Massoud,    convicted         by     a    jury    of    criminal


solicitation to commit aggravated robbery and sentenced to seven


years imprisonment, appeals.             In ten grounds of error, appellant


contends    that:   (1)    his     conviction,        after        a   prior    mistrial,


constituted     double    jeopardy;        (2)   he    was        denied   due    process


because the prosecutor failed to disclose evidence, material to


guilt or punishment, after a discovery motion was filed; (3) the


trial   court    abused     its    discretion         by    surpressing          evidence


material to the defense; (4) the trial court erroneously admitted


testimony of an extraneous offense or transaction; (5) the trial




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court     erroneously                permitted       hearsay         testimony       to     be    elicited


during trial;            (6)     he was denied effective assistance of counsel;


(7)   the indictment was fundamentally defective;                                 (8)      the evidence


was     insufficient                 to     sustain        a    conviction;          (9)     the    court


erroneously          stated           the       elements       of    aggravated      robbery       in   its


charge;       and        (10)        the    court's       charge       improperly          enlarged     the


indictment.          We disagree with each contention and, accordingly,


affirm.



        In   his         first        ground       of     error,       appellant          contends      his


conviction          is    barred           by   double     jeopardy.          Although       the    record


reflects appellant orally moved for dismissal of the proceedings


on double jeopardy grounds, he failed to file a verified written


motion as required by TEX. CODE CRIM.                                 PROC. ANN. articles 27.05


(Vernon Supp.             1985)        and      27.06     (Vernon 1966).             The question of


double       jeopardy           is    therefore         not     properly      before        this    court.


Murphy v. State,                669 S.W.2d 320             (Tex.      Crim.   App.    1983)       en banc;


Galloway       v.        State,           420    S.W.2d        721    (Tex.   Crim.        App.    1967).


Appellant's first ground of error is overruled.




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      In his second and third grounds of error, appellant contends


he was denied due process because evidence material to the issues


of his guilt or punishment was not disclosed in accordance with


Brady V. Maryland, 373 U.S. 83 (1967).                          We disagree.


      The evidence           of    which    appellant complains consists of                  two


items.     The first item is a recording of a telephone conversation


between Jerry Banks, the prosecuting attorney, and Bob Denson, a


private     investigator who was              employed      by Bill       Siefert,        appel


lant's     former   partner,         to    obtain      evidence    for    use   in    a    civil


action brought by appellant against Siefert.                        The second item is


the   Dallas     Police Department's              Internal Affairs         file      regarding


official misconduct               of two    Dallas police officers,             Falgout and


Robertson.        In    response       to    appellant's        request    to     review     the


evidence,    the prosecutor submitted these two items to the court


for   an    in   camera       inspection          to   determine    whether       they      were


discoverable.          The    court       found    that   the   items    did    not   contain



anything "exculpatory in nature or anything that would mitigate


punishment" and declined to permit discovery.                            We conclude that




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by submitting the evidence to the court for a judicial determina

tion of its discoverability,             the prosecutor complied with the

requirements of Brady.                 See United States y_,           Agurs,    427

U.S. 97 (1978) .


       Having concluded the prosecutor's action did not violate

appellant's right to due process, we now consider whether the

trial court abused its discretion in denying appellant access to


the evidence.         The standard of review we must follow is whether


the    evidence       sought   is      material    to    appellant's       defense.


Whitechurch     v.    State.    650    S.W.2d     424,   425   (Tex.    Crim.    App.


1983), en banc; Ouinones v.             State.    592 S.W.2d 933 (Tex. Crim.

App.   1980),    en banc,      c^rt.    denied.    449 U.S.    893     (1980).     In

determining materiality,         the omission must be evaluated in the

context   of    the   entire   record     and   constitutional     error    is   com


mitted only if the omitted evidence creates a reasonable doubt

that did not otherwise exist,            whitechurch. 650 S.W.2d at 425.


       After fully reviewing the evidence of which appellant com


plains,    we conclude         that,     in light of the entire record,



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appellant was not denied access to any evidence material to his

defense.    The file revealed that the two police officers had been


employed,      contrary to police department policy,             by Denson to

assist   him    in   obtaining   evidence    for   the   civil   trial    between


appellant and Siefert.              When the officers realized that a

criminal    matter    was   developing,     they   immediately    discontinued


their employment with Denson, and in fact refused to accept any

pay from Denson for the work already done.               Banks did not learn

of the two officers'        participation in the investigation of the

civil matter until he was preparing for trial.               Immediately upon


learning of their involvement, Banks initiated a telephone call

to Denson, the taped telephone conversation in issue, verifying

the   officers'      involvement.      He   then   consulted     with    District


Attorney Henry Wade and reported the matter to the Dallas Police


Department.


         All of these matters were fully developed at trial, except


the fact that the telephone conversation shows that Banks and


Denson were acquaintances, and that Banks had in fact visited in



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Denson's home, socially, on one or more previous occasions.

     Appellant contends that the undeveloped evidence is material

to show a conspiracy between Siefert and the district attorney's

office to "set-up" appellant.       This contention is without merit.

First,   Banks was not involved in the police investigation of

appellant's criminal activities and was unaware of the officer's

prior involvement in the civil case until he was preparing for

trial.    Next,   Banks'   actions, after learning of the officer's

involvement, were inconsistent with appellant's allegation of a

conspiracy.     Further, we note that this theory is different from

appellant's theory during trial.        At trial appellant admitted his

conversations     with Sergeant    Amos,   the police   investigator   in

charge of the criminal investigation, but denied any criminal

intent to harm Bill Siefert.       He testified that he believed Amos


was working for Denson and that he was going along with Amos,

hoping to gather evidence against Siefert.           As we have stated

previously, the excluded evidence showing the relationship

between Falgout, Robertson, Denson, and Siefert, as well as the



                                  -6-
evidence describing Amos'     role in the investigation, was fully

developed at trial.    There was never any question that Officers

Falgout, Robertson, and Amos were "setting-up" appellant in the

sense that they were working undercover to gather evidence to be

used against    him.   The   issue,    resolved by the        jury against

appellant, was not whether Amos was actually a "hit-man," but

whether appellant possessed the requisite criminal intent, that

is, whether    he actually    believed Amos       would harm Siefert.

Appellant's allegation of a conspiracy extending to the district

attorney's office is not only unsupported by the evidence, but is

immaterial to the question of that intent.          Appellant's grounds


of error two and three are overruled.


     In his fourth ground of error, appellant contends the court

erroneously    permitted   testimony   of   an   extraneous    offense   or

transaction.    Danny Wood testified that appellant attempted to

purchase dynamite from him and inquired whether two or three

sticks of dynamite wrapped in foam rubber was sufficient to blow

up a four to five thousand square foot building.                He further



                                -7-
testified      that    appellant          told    him    he     wanted     the    building

destroyed because the person who owned the building owed him

approximately five hundred thousand dollars.                        Wood was called as

a witness after appellant had testified and had affirmatively

denied his     criminal      intent,       and had further denied making any


statements to Wood regarding purchasing dynamite or destroying a

building.      Although evidence of extraneous offenses is generally

not admissible, the evidence in this case was admissible to show


intent   or    scheme,      or     to    refute   appellant's        defensive     theory.


Sewell   v.        State.    629        S.W.2d    42    (Tex.      Crim.   App.     1982);


Chambers      v.    State.    601       S.W.2d    360    (Tex.     Crim.    App.    1980).


Appellant's fourth ground of error is overruled.

     In his fifth ground of error, appellant complains the court

erroneously        permitted       the     introduction       of    hearsay      evidence.

First, appellant contends the testimony of Joe McMurtrie is "full

of hearsay."        No objection was made during trial, and, on appeal,


appellant fails to identify the specific testimony of which he is

complaining.         Therefore, nothing is presented for review.                      Cook



                                           -8-
v. State,     611 S.W.2d 83 (Tex. Crim. App. 1981).                             Next, appellant


complains the tapes of conversations between appellant and Amos

were hearsay because the State failed to properly authenticate

the     tapes.      The    record        reflects             that    appellant's            counsel

affirmatively waived objection to the introduction of the tapes


and that appellant later testified that he had no reason to doubt


the authenticity of any of the tapes.                          Error,      if any, was there


fore    invited,    and    now    appellant         may       not    be    heard     to complain.


_Ex   parte   Guerrero,         521    S.W.2d           613    (Tex.      Crim.      App.     1975).


Next,    appellant       complains          that    the       testimony        of    Captain Oney


is "rank      hearsay."     Appellant cites no                  reference           to the    record


indicating       where    the    error       complained         of     occurred;       therefore,


nothing    is presented          for    review.           Brown v. State,              605_ S.W.2d


572 (Tex. Crim. App. 1980).                 Further, Captain Oney testified only


during     the punishment         phase        of       the trial.             Since    the court

determined       punishment,           we    must        presume          it   disregarded       any


inadmissible       testimony.          Keen        v.    State,      626 S.W.2d         309    (Tex.


Crim.     App.    1981).         Finally,          appellant         complains         the    entire



                                             -9-
testimony of Cheryl Jerome              should       be stricken from the record


because she is currently employed by the Dallas County Attorney's


office and her testimony was therefore in violation of the Texas


Code of Professional Responsibility.                       The   record reflects that


Jerome was not employed by the District Attorney's office when

she testified in this case.             Appellant cites no authority that a


person's testimony must never be considered if he or she later

becomes    associated      with   one     of    the     attorneys      involved      in    the


litigation.      We find none.          Therefore, nothing is presented for


review.      Brooks     v.   State,       642       S.W.2d    791     (Tex.    Crim.      App.


1982).    Appellant's fifth ground of error is overruled.


        In his sixth ground of error appellant contends that he was


denied    effective     assistance        of        counsel      because      his   attorney


repeatedly failed to object to the introduction of "inadmissible

hearsay evidence and extraneous offenses."                          Appellant fails to

direct    this   Court's     attention         to    the     record    indicating      where


these     omissions   by     counsel       occurred;          therefore,       nothing      is


presented     on review.          Cook,    611 S.W.2d            at 87.         Appellant's



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sixth ground of error is overruled.


        In    his     seventh         ground    of     error,        appellant        contends      the


indictment is fundamentally defective because it fails to allege


all    of    the    essential         elements of           robbery.        We     disagree.       Upon


review       of     the    indictment,          we     conclude        that        the    indictment


adequately set            out     the   elements of           both    criminal solicitation,


TEX.    PENAL       CODE       ANN.    Sec.    15.03    (Vernon        1974) , and         aggravated


robbery,       TEX.    PENAL CODE ANN.               Sec.    29.02,        29.03    (Vernon      1974).


See     Rohlfing          v.     State,        612    S.W.2d         598     (Tex.       Crim.    App.


1981).       Appellant's seventh ground of error is overruled.


        In    his     eighth          ground    of     error,        appellant       contends       the


evidence is not sufficient to support a conviction.                                      We disagree.


When the sufficiency of the evidence is challenged, the standard


of review is, viewing the evidence in the light most favorable to


the verdict, whether any rational trier of fact could have found


the    elements of         the crime beyond a reasonable doubt.                            Wilson v.


State,       654 S.W.2d 465 (Tex. Crim. App. 1983).                           During one of the


taped       conversations         between       appellant and Amos,                 appellant told




                                                -11-
Amos he wanted Siefert's "right hand broke,                his arm broke . . .


and . . .     one leg broke."         During a different conversation he


stated, "why don't you act like you're gonna rob this boy —                    make


it look good."     He told Amos he wanted the business cards out of

Siefert's    billfold,   but   that    Amos     could    keep    Siefert's   watch,


rings, and any money.      We conclude the evidence is sufficient to

support the conviction.        Appellant's eighth ground of error is


overruled.



     In his ninth ground of error, appellant contends the trial


court committed fundamental error by failing to instruct the jury


on the correct elements of aggravated robbery.                   We have reviewed


the definitions in the court's charge which appellant urges were


erroneous,   and   find no error.       The court's omission of the word


"recklessly" and its further omission of the alternative element

of "intentionally or      knowingly          threatens   or     places   another   in


fear of imminent bodily injury or death," from the definition of


robbery,    TEX. PENAL CODE ANN.         §29.02 (Vernon 1974), benefitted


appellant by restricting        the elements of the charge for which



                                      -12-
*   m




        appellant    could       have    been     found       guilty.        Error,           if    any,    was


        therefore    harmless.          Since     no    objection       was       made    at       trial and


        fundamental      error    was     not    committed,          nothing       is    presented           for


        review.      Henderson      v.    State,        117    S.W.2d    697       (Tex.       Crim.       App.


        1981).


                In his final ground of error, appellant contends the court's


        charge has enlarged the indictment.                    We disagree.              The indictment


        alleges    that       appellant    "did        unlawfully,          then    and        there       with


        intent    that    a   felony of     the       first degree be          committed,            namely:


        aggravated        robbery,        knowingly           and     intentionally                 request,


        command,     and      attempt      to     induce       another        .    .     ."        (emphasis


        added).      The      court's    charge       tracks     this   language,             however,        it


        omits the word         "command",       and substitutes the word "or"                        for the


        word    "and."     The   omission       of     the    word    "command"          in    the    charge


        restricted rather         than enlarged the             indictment.             Error,       if any,


        caused by the court's omission, was therefore harmless.                                     Further,


        since     appellant      failed     to       object     to    the     charge,          nothing        is


        presented    for      review.      White        v.    State,    610 S.W.2d 504                     (Tex.




                                                     -13-
Crim. App. 1981).          Finally, it is not error for the indictment to


allege     the    different        ways    of     committing     the    offense     in   the


conjunctive        and     for   the      jury    to   be    charged    disjunctively.


Vasquez    v.     State,     665    S.W.2d       484    (Tex.   Crim.    App.   1984)    en


banc;    Vaughn     v.   State,     634    S.W.2d      310   (Tex.   Crim.   App.   1982).


Appellant's final ground of error is overruled.


        Affirmed.




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