*2 BASS,. DUNN, Before SAM COHEN *3 JJ.
OPINION DUNN, Justice. appellant guilty of solicita-
juryA found The court assessed capital tion of murder. years punishment at 25 confinement. affirm. We April testified that on Robert Garcia if him and asked him appellant called money. making extra he was interested requested meet him Appellant that Garcia At the at a hotel to discuss the details. hotel, appellant told him that he wanted murdering him in someone to assist Garcia jewelry well expensive as would have who $3,000.00 his or more in cash on as about pose cocaine was to as a person. Garcia dealer; bring appellant would the victim apartment purchase cocaine Garcia’s victim. The appellant would kill the where person jewelry on the victim’s money and them. At this split between would then be joking. thought appellant was point, Garcia however, hav- meeting, without He left the saying he plan ing renounced the it. would think about Sergeant day, Garcia met Later Police De- Goetschius, City Texas burglary (TCPD), at to discuss a partment, employment. Gar- place of former Garcia’s earli- transpired cia also revealed what appellant. Garcia himself and er between appellant from the to call was asked plans. his about appellant ask station and instead suggested they meet Appellant scheme. to discuss the at the hotel by police officers fitted was then Garcia only in- transmitter. a wireless with to wear the he received structions along appellant. “go with” microphone a aware of was not testified he Garcia stop that could equipment on the button transmissions, and that the only time Goetschius testified Garcia informed the equipment touched was when the appellant’s him of scheme and that Garcia police charged the During batteries. trans- agreed cooperate him in monitoring mission, could not talk to Garcia appellant’s conversations. Garcia’s tele- but would communicate with him blink- phone appellant call to was recorded and he ing lights. their was then fitted awith transmitter. Gar- cia’s instructions were that he was to At approximately p.m., 7:00 pro- Garcia appellant let lead the talk and conversation ceeded to the hotel where indi- investigation cated terminate unsuccessfully that he had tried to upon any part on the victim, contact the renunciation intended now revealed Woods, appellant. Timothy as Ap- cocaine dealer. pellant asked him to wait a lot in front of Goetschius testified further that he was his sister’s house while tried to present van watching surveillance Appellant’s plans contact Woods. varied *4 appellant encounter between and Gar- evening as the progressed, appellant but cia monitoring and their conversations. express continued to his desire to kill concerning His testimony the content of
Woods, by strangling be it him in Garcia's the conversations corroborated that of Gar- by beating car or him with a baseball bat in cia. apartment. Garcia’s Garcia, Goetschius also testified that to Garcia appellant further testified that his knowledge, employee not an or never indicated renunciation of plans. these spoken informant of the He TCPD. had to fact, In expressed when Garcia reserva- personal Garcia before on a basis. He tions and him asked to abandon the denied that ever Garcia had been offered scheme, appellant gave him his wallet and part financial or other incentives to take in wedding ring as plan collateral because his the investigation, testified and that it was Appellant was a “sure thing.” gave also departmental policy pay not to informants. him put a in apartment. baseball bat to his Sergeant Randle Burrows of the Galves- When suggested they Garcia only rob County Department ton Sheriff’s testified Woods, and not kill appellant responded that he that the fitted Garcia with transmitter killing results of him would be dangerous. operated throughout too and the recorder period of He did surveillance. not tell Gar- Appellant was concerned that Garcia cia operate how to or deactivate the trans- leave, they Woods, and as waited for mitter, except that it could detect con- bought he guaran- Garcia dinner. He also proximity versations from a close to Gar- proceeds split teed that the would be 50/50. cia. approximately p.m., At 10:00 Woods was Joe Rangers Haralson of Texas testi- finally appellant contacted. When went to fied that he in radio communication pick up Woods, told Garcia to with the surveillance van. He followed proceed appellant’s plans. Garcia appellant to apartment Garcia’s Woods then went apartment to his and waited complex. He observed Woods re- Woods, appellant outside for believing parking mained on motorcycle lot appellant apart- was not familiar with his appellant apartment. while Garcia’s went to arrived, they ment. When stayed Woods $1,500.00 person. his Woods had on Haral- parking lot; appellant upstairs walked son further he had testified that been told apartment to Garcia’s where he was arrest- “proven that Garcia was a informant” who ed. past had as an worked informant Garcia also that he testified had never given information. reliable designated heard he had been as a confi- Branson, informant, dential claimed Richard Assistant Criminal Dis- he had nev- provided Attorney County, er on criminal trict testi- activity information Galveston to the before incident. fied that in the surveillance van. he was appellant had ob- testified and admitted cer- He identified a baseball bat he cause tain elements of the offense. appellant’s take from served car. he truck to Garcia’s He testified that having Appellant contends that admitted had advised Garcia to let do the charged having denied criminal the acts talking suggest anything. He also and not intent, entrapment he is still entitled to the point that at driv- remembered some while instruction, case, United citing a federal ing, the officers lost transmission but (5th Henry, States 749 F.2d Cir. changing routes; quickly regained byit he 1984). might suggested that that occurrence ac- argument Appellant’s assumes the en- gap tapes. count for a seven minute trapment issue was raised the evidence. “cooperating as a He characterized Garcia (Vernon Tex.Penal Code Ann. 8.06 § a individual” in the case rather than confi- 1974) provides: informant. dential (a) prosecution It is a defense to Appellant he used cocaine testified that engaged charged conduct actor and that Woods was a dealer of his who induced to do so a law because was Appellant him had un- had sold “trash.” using persuasion agent enforcement get money successfully tried to his back likely persons cause other means eventually from Woods and was interested merely commit the offense. Conduct get money. “pulling a scheme” to affording person opportunity qualified help He believed Garcia was does not commit an constitute offense money-mak- him about a and called Garcia entrapment. *5 ing it was Garcia who initiated scheme but (b) In section “law enforcement Appellant of murder. told Garcia the idea agent” personnel includes of the state doubts, persuaded he him had Garcia agencies enforcement as and local law the was broke and needed because Garcia any well as of the United States he had money. Appellant maintained that acting person in accordance with instruc- eventually himself to Garcia so committed agents. from such tions that he could not withdraw and Woods argument the federal Appellant’s invokes plan. test; the subjective entrapment but with Although appellant conceded his voice adopted 8.06 Texas what is enactment of § high he on tapes, on the he said was “objective entrapment test.” known as the cocaine, mouth,” State, “running at and did 352, the v. 355 Rodriguez 662 S.W.2d carry propos- his not have the intent to out (Tex.Crim.App.1984).
als. further testified that Garcia He Norman capsuled in objective The test is things,” suggest “some asked him to State, 588 340, (Tex.Crim. v. 346 S.W.2d tape he the end of the last that towards App.1979): go through with he could not told Garcia entrapment test mandates objective The Woods at plan. he arrived with When court, having once deter- that the trial complex, he determined apartment Garcia’s inducement, there was an mined that through plan with the he could not follow nature of the consider need now motorcycle stay on the and told Woods involved, without agent activity State planned to go upstairs. He he would while par- predisposition to the reference he plan off but when tell Garcia call defendant. ticular apartment, he ar- arrived at Garcia’s objective test of en The function of the rested. deter conduct which trapment is to alleges ground of error Appellant’s first civilized society’s standards for violates overruling his mo- erred the trial court Lang power. governmental of proper use entrapment. of tion on the defense 326, (Tex. State, 330 v. 571 S.W.2d ford Texas, objective “In Crim.App.1978). ap- court argues that the trial Appellant recogni legislature’s exemplifies the charge be- test entrapment parently refused the
145
tion that there will be some cases in
In appellant’s
ground
error,
which
second
of
accused,
govern
alleges
the defendant is
but the
trial court erred in overrul-
ing
State,
suppress
his motion to
ment is convicted.”
State’s exhibits
Donnell v.
677
2, 3,
(three tape
nos.
and 4
199,
recordings in
1984,
S.W.2d
202 (Tex.App. [1st Dist.]
chronological sequence), and in his third
pet.).
no
ground, that the court erred in admitting
If
supporting
evidence
the defense
into
evidence because the
admitted,
entrapment
is
the issue is sub
garbled.
complains
He also
that nei-
jury
mitted to the
with the instruction that
ther
predicate
proper
a sufficient
nor a
requires
reasonable doubt on the issue
an
chain
were established for the
acquittal.
2.03(c),
Tex.Penal Code Ann. §
tapes’ admission.
(d) (Vernon 1974).
Appellant complains
frequent gaps
However,
entrap
defense of
notably
gap
most
a seven minute
ment is not available to a defendant who
tape,
the second
as well as continual
denies
commission of the offense.
by police
interference
Appellant
radios.
State,
Norman v.
offer it and chain sees, mony voluntarily and he can elicited made without defects Mr. Stevens any kind make his cross-examination. of inducement. Edwards v. State, 731, (Tex.Crim.App. 551 S.W.2d 733 objection THE The is if the COURT: 1977). Reasonably strict adherence to the shown, tapes played, the chain is not requirements required ad- seven is for the damage is done. recordings, of sound and ad- mission their MR. CLARK: I have showed it in the discretionary trial court. mission with the before, suppression hearing and it’s time Id. consuming, very repetitious. and THE I COURT: will overrule ob- showing A mere that a record jection. specified ing is handled in a standard man I
MR.
Do understand this
presumption
STEVENS:
not
a
ner does
establish
State,
and
reliability
is a conditional offer
regularity, nor is it an indicia of
back,
up
link
later?
integrity
come
sufficient
to insure the
fact-finding process commensurate with
offering
THE
State
condi-
COURT:
cross exam
rights
of confrontation and
tionally, you will show the chain of custo-
State,
v.
623 S.W.2d
ination. Porter
dy? .
(Tex.Crim.App.1981); McCrary
v.
384
Yes, sir.
MR. CLARK:
(Tex.Crim.App.
604 S.W.2d
(Whereupon,
following proceedings
1980).
hearing
in the courtroom within
occurred
Jury.)
of the
particular
in which the re
case
Stevens, you
Mr.
made
THE COURT:
cording
part of the circum
is offered is a
overruled,
your objection, and it has been
determining
considered in
stances to be
you
your objec-
I
understand
have
recording,
preservation of the
whether the
playing
tape?
tion to the
indisputable
custody,
has the
i.e. chain
Yes,
necessary for
over-
fundamental trustworthiness
MR.
sir. It was
STEVENS:
McCrary
into evidence.
v.
its admission
ruled.
State,
147 regard speculation appellant’s com that the court should resort to With to 4 plaint requirement that Edwards no. was making its determination. met, i.e., changes, ad showing “a that reveals that The record this case made,” ditions, or deletions had not been State’s witness Burrows testified Quinones State, 592 S.W.2d the court v. He original tapes. were tapes offered the 933, that (Tex.Crim.App.1980), 944 noted persons tapes as Gar- identified the on the in a the tape the alteration does not render the appellant, and and testified that cia tape per se If the alteration inadmissible. the tapes fairly accurately and reflected is so sufficiently explained is accidental and as he conversations had heard them. presence its the relia that does not affect evidence,
bility and trustworthiness of the
he never
Burrows further testified that
recording can
Id.
the
still be admitted.
appellant
plan, or
heard
renounce the
heard
exculpate ap-
anything that would tend to
appellant’s complaint
As to
that
prevent
erasures
pellant. To
accidental
predicate for
no.
requirement
the
Edwards
alterations,
had removed
and/or
Burrows
(5),
showing
pres
of
“a
the manner of the
according
to stan-
the tabs
of the
been
recording,”
ervation
has not
them
policy,
immediately
dard
turned
i.e.,
met,
controlling
of custody,
chain
the
explained
Scalia. He
that
over Officer
any specific
preser
issue is not
manner
portions
tapes
were the re-
unclear
the
handling
the
tapes
vation or
of the
within
powerful
radio interfer-
sult of more
public officials,
any
control of
but whether
He
body
ence with Garcia’s
transmitter.
occurring
handling
thing
during the
tapes
tapes
testified that
covered conver-
storage of the
affected their reliabili
also
hours,
ty
Appellant put
spanning
were
trustworthiness.
sations
over six
questioned
on notice that he
the man
length
State
only one and a half hours in
because
preservation
handling
ner of
and the
start
he would
when
tapes. When an
is
attack such as this
stop the
approached Garcia’s
vehicle
made,
cannot shift
appéllant
it
the bur
He admitted
when
exited.
disproving authenticity.
den of
United
that,
he
with the
preoccupied
because
Starks,
States v.
ty[?3 1985, tapes transcription April, for very she up careful and locked them in Yes, OFFICER SCALIA: I do. office, transcribing. Chief’s when not DEFENSE COUNSEL: your What Upon completion of transcription, her opinion? tapes immediately returned to Officer They OFFICER SCALIA: would not be possession. Scalia’s reliable, if, fact, they were removed Clark, Michael Assistant Dis- Criminal premises. Attorney County, trict of Galveston premises, By DEFENSE COUNSEL: case, prosecutor in this testified that he you referring are depart- to the tapes. officially had reviewed the He ment? tapes checked the out from Officer Joe OFFICER SCALIA: That’s correct. Scalia of the .TCPD on June 1985. He Now, DEFENSE COUNSEL: I take it personnel “sign testified that authorized premises would also include some other tapes kept out” for he He as did. public building staffed law enforce- approximately prepara- two weeks in people? ment tion of the case for trial. Part of the time OFFICER SCALIA: That’s correct. they were at his house and the last few any- DEFENSE COUNSEL: But involve days he returned them to his office. Clark residence, body’s private yours, listened to the at home and made D.A.’s, anyone elses? duplicates equipment, of them on his own wife, attorney, for defense counsel. His OFFICER SCALIA: That’s correct. was the other resident in the home witness, MR. STEVENS: Pass the Your during day. and she worked While Honor. making give duplicate copies to to the de-. THE Mr. COURT: Clark? fense, attempted up” to “clean some of By Mr. REDIRECT EXAMINATION— copies. duplicate the static in the There is Clark origi- no evidence that this was done to the Scalia, I STATE: Officer think we went tapes. nal remained in his home over once. stacked, with several other cassettes in an sign periodically You out evidence to the parties area third normal- where would not Attorneys prosecution District staff for them, out- ly bother for two weeks at the cases; is that correct? protected by most. His home was a bur- Yes, I OFFICER SCALIA: do. glar system doors. The alarm and locked got hearing on you hypothetical -STATE: When docket sheet reflects that the July question, suppress it the motion to would make difference were under you hypothetical if in the individual and that the at that time upon the you court. Based was a D.A. released that to? the control of the *9 record, that the court tapes Clark had from June We note record established, carefully through and July they taken went to when were of cus- testimony, the “chain with Scalia’s testimony on and to court. Based Clark’s checked a second time. When Clark tody” record, the in his home tapes on the June, there tapes out on the 26th in his office days, days about 5 and about 3 precau- that took some was evidence Clark hearing sup- on the motion to before is, office, home that he tion in his and that, press. his knowl- Clark testified to in his tapes special spot in placed the edge, tapes. He no one bothered the accessible, and readily home that was guests during in have had his home kept protected in his office where he them period listen to the anyone but never saw Attorney. help District with another He had of the tapes. played portions apparent It is further from evidence however, in tapes, presence of Branson any specific there was no that evidence subsequent- preparation for trial. Clark original tapes, alterations ly returned the office which he to his possible ap-As speculations of alterations. another District At- shared with Assistant attorney acknowledged in the pellant’s torney named Burris. Defense counsel had record, questioned no one the trustworthi- request to made a and review Attorney ness of Assistant District Clark. (Clark) trial, he told because was in he acknowledgment supported This go defense counsel that he could to his testimony Scalia’s that the reliabili- Officer presence office and listen to them in the tapes in ty possession of a dis- Burris. Defense to wait counsel wanted his attorney proportion trict is to direct present. until Clark was further tes- Clark trustworthiness. request special tified that he did not that We find the court did not safeguards be taken stated Burris but admitting abuse its discretion in understanding an implied there was not cause the and that their admission did them that after his between she would look improper rendition of an verdict. evidence and he for her. would do the same He admitted that if Burris did not know grounds of Appellant’s second third and posses- the office the entire time of overruled. error are tapes. Finally, sion of the testified Clark alleg- Appellant’s ground fourth of error extensively orig- that he had listened to overruling his the trial court es erred knowledge, they inal and that to his mistrial, following the allusion motion had not been altered. poly- to a by State’s witness Goetschius recording personal were a of a allegedly graph given to Garcia. test witness, conversation between the State’s trial, granted Prior to trial court Garcia, court, appellant. was in Garcia to appellant’s pertaining motion in limine sworn, duly subject to cross-examina- excluding any polygraph reference to by appellant. that at tion Garcia testified allegedly given exams to Garcia. appellant did “want say no time he didn’t complained of de- testimony The line of go plan. through or “couldn’t to” with” of Goetschi- veloped on cross-examination (of at very He testified that end us: recording), he tried not to get Now, you told Q. day the other I think crime, go through appel- with but that just a casual this Robert Garcia was us insisted, “Man, saying this is a sure lant acquaintance; correct? According Garcia, thing.” Professionally, yes. A. go he was stated sure he wanted to time and Q. Stopped from time plan, his through gave Garcia with him? talked ring gave as security. watch and He also A. Yes. put in a baseball Garcia bat for Garcia any Q. got information of apartment to be Never the bedroom Garcia’s from him? used to kill the victim. kind *10 150 No, require I would more than a
A.
other than casual conversation.
been altered.
possibility,
outlined
as
below.
Q.
you
why
for the reason
Can
account
told
Officer Haralson would have been
Further, I find the authorities relied on
somebody
your
Department
at
Police
by
dissenting opinion unpersuasive.
in the
Of
given
had on several times before
that he
dissenting opin-
the five cases cited
information?
reliable
ion,
judgments.
One of
two reversed
referring to
A.
I believe what we’re
tape recordings,
these did not involve
and
a test and he had
that Robert
taken
other,
Pennsylva-
case from
a federal
telling the
proven
been
to be
truth.
trial,
nia,
grossly
from a
unfair
resulted
judi-
involving Government misconduct
ap-
point,
At
this
defense counsel
anything that occurred
cial errors unlike
proached the
and moved for a mis-
bench
motion,
cases are discussed below.
here. Both
trial. The trial court denied
nonre-
ruled that
the statement was
by expert
Appellant
proved,
never
or oth-
jury
dis-
sponsive, and instructed the
to
evidence,
al-
er
that these
had been
regard it:
Further,
proved that
if
tered.
he never
go
have
a bit to the exact
We will
back
altered,
would
they had
the alteration
been
Goetschius,
question asked
Officer
present
impossible
have been
to detect
response
I think the Officer’s
proved,
technology.
If alteration had been
question,
directly
response
of that
reverse, assuming that
I
vote to
your objection
I
as the an-
sustain
probability that the
there was a reasonable
being responsive. I don’t know
swer not
missing, allegedly
alteration affected
exactly what the answer
you
if
recall
exculpatory conversations.
was,
back,
I would
some moments
but
reverse,
vote to
without
would also
disregard
giv-
you
instruct
answer
alteration,
(1) appel-
proof of
if:
conclusive
ques-
en Officer Goetschius to the last
prejudicial
reasonably claimed that a
lant
tion.
occurred; (2) the manner of
alteration had
Appellant argues that Goetschius’ re-
tapes showed that
there
preserving the
attempt
the testi-
sponse was an
to bolster
for such an
opportunity
reasonable
was a
highly prejudicial.
mony of Garcia and was
alteration;
(3)
testimony
expert
State,
counsel, not the
elicited
Appellant’s
that,
present
technology,
given
showed
complained of.
the statement
probability that an
no reasonable
there was
Appellant
authority,
cites no
cases
In these cir-
could be detected.
alteration
statutes,
cumstances,
excluding
support
penalty
of his contention.
or
ground
by appellant to brief the
should fall on the
The failure
from evidence
any authority, presents
State,
possibility
or to cite
of altera-
of error
because
tion,
ability
prevent
635
nothing for review. Eubanks v.
exclusive
the State’s
(Tex.App.
alteration,
impossibility
of the de-
S.W.2d
and the
[1st
—Houston
Dist.1982],
pet.).
proving
ever
alteration.
fendant
ground
fourth
of error
Appellant’s
cer-
exposure to
Appellant proved that
overruled.
magnetism could erase
levels of
tain
proved that the
he never
trial court is af-
judgment of the
exposed to such
probably
or
were
firmed.
magnetism
magnetism or that alteration
been
would have
by “static” removal
COHEN, J.,
or
concurs.
detect. For all
impossible impractical BASS, J., dissents.
SAM
witness, using readily
know,
expert
we
Justice,
COHEN,
concurring.
examined
technology, could have
available
reliably determined wheth-
tapes and
these
dividing
panel is whether á
The issue
However, unlike
altered.
they had been
from er
recording should be excluded
Starks,
States v.
defendant
United
that it has
possibility
of a
evidence because
(3rd Cir.1975),
original or had been
determine if it was
1)Defense
request-
sion of
prior
counsel
to trial
recording
(1)
de-
showing
a
that the
tape to
lows:
expert
ed
examine the
that an
(2)
capable
taking testimony;
fy
package
opened
vice was
a
as whether the
of
was
showing
operator
device
and there
no evidence as to
Austin
was
(3)
competent;
was
establishment of
happened
to the evidence while it
what
authenticity
and correctness of the re-
compounding
Further
Austin.
break
cording; (4)
showing
changes,
a
addi-
custody,
the chain
sheriff who had
tions,
made; (5)
or deletions have not been
acquired
first
the evidence could not make
'preserva-
showing
a
the manner
positive
a
identification of the marihuana.
(6)
recording;
the identification
tion
period when the evidence was
There was a
(7) showing
speakers;
persons,
of unknown
the control
testimony
voluntarily made
elicited was
persons
there
no evidence that these
without
kind of inducement. Edwards
package containing
opened
had not
*12
731,
(Tex.Crim.
State,
733
v.
551 S.W.2d
evidence.
App.1977). Reasonably
adherence to
strict
tape recordings are
It is self-evident that
requirements
required
is
the seven
ad-
original
readily identifiable as the
ver-
not
recordings,
mission of sound
and their ad-
peculiarly susceptible
are
to alter-
sion and
discretionary
mission is
with the trial court.
ation,
editing.
tampering,- and selective
Id.
Starks,
112,
515 F.2d
121
United States v.
mean,
requirements do
The Edwards
(3rd Cir.1975).
proffer of
Because
such
however,
tape
in a
ren-
alteration
particularized
circum-
may,
evidence
Qui-
tape per
inadmissible.
ders the
se
case,
given
or
stances of a
involve one
State,
933,
(Tex.
nones v.
592 S.W.2d
944
problems
varying degrees
more of these
If
is acci-
Crim.App.1980).
the alteration
lay
uniform stan-
it is difficult to
down a
sufficiently explained
is
so that
dental and
recording,
dard for the admission of
reliability
presence
its
does not affect the
applicable
equally
to all eases.
Id.
evidence,
and trustworthiness of
handling
regularity which attaches to the
recording can still be admitted.
Id.
public
the control of
of evidence within
case,
not overcome the chain of
attempt
officials will
In the instant
there was an
custody problem. Id. at 122.
gaps
altera-
explain
or account for the
however,
controlling
tapes;
in the
tions
testified that it would be a
Officer Scalia
custody
issue in this case is the chain of
policy
for someone to take
breach
TCPD
problem.
them,
he further
tapes home with
State,
98,
prosecutor,
Assistant Dis-
103 testified that
In Elliott v.
681 S.W.2d
Clark,
1984),
him
Attorney
did not tell
where
(Tex.App.
trict
Dist.]
[14th
— Houston
taking
tapes.
Clark testified
(Tex.Crim.App.1985), he was
affd.,
Such properly chain of clearly what a maintained No. 01-85-01049-CV. designed provides custody prevent Texas, Appeals of Court of testimony that the basis for Officer Scalia’s (1st Dist.). Houston tapes would be unreliable once removed police department. My col- Aug. 1986. leagues argue discrepancies if re- sufficiently explained, are quirement of an chain of unbroken disagree. my opinion It is
is satisfied. custody and are
that chain of alteration issues; separate
two satisfaction of requirement.
former is the threshold *13 preservation proper of a chain of here imperative is even more be-
cause of the nature of the offense part
charged any renunciation on the — instigation part on the of Gar- probative. Appellant’s
cia would have been plan to-
testimony that he renounced the
wards the end of the last is in fact subsequent
corroborated his conduct
eventually leaving parking Woods in the lot entering approaching
while Garcia’s
apartment alone. agree
I cir- these
cumstances, means, ample the State had
without the to relate the substance through
of the overheard conversations attending
recollection of Garcia and the
police officers.
Appellant put that he the State on notice authenticity. “If
questioned tapes’ presumption regularity it can-
there is a
not in these circumstances substitute for [appellant]
evidence or shift to
the burden
States
United
disproving authenticity.”
Starks,
It is forth in Edwards predicate
to meet the set failing proper
v. State to establish custody. adequate chain of judgment and re- reverse the new
mand the cause for a trial.