OPINION
Two indictments were filed charging appellant with separate deliveries of a controlled substance. A jury trial was held on the consolidated indictments and appellant was found guilty of both charges. The jury assessed punishment at five (5) years imprisоnment on one cause and ten (10) years on the second. The latter sentence was probated. Appellant asserts (1) that the court’s charge was improper as it included an instruction on voluntary intoxication and failed to include аn instruction on involuntary intoxication and, (2) that evidence of jury misconduct during punishment deliberations necessitates the granting of a new trial. We overrule these grounds of error and affirm the judgment of the trial court.
A narcotics investigator for the Deрartment of Public Safety, with the assistance of an informant, purchased cocaine from appellant on two separate occasions. The evidence introduced at trial reveals that appellant is a cocаine addict and was under the influence of the drug during the sale transactions.
Appellant first alleges the trial judge erred in instructing the jury that voluntary intoxication does not constitute a defense to the commission of a crime. Appellant’s position is that the court’s charge erroneously assumed that appellant’s condi *800 tion was the result of the “voluntary” consumption of cocaine and was therefore an impermissible comment on the evidence. The record shows that when аppellant’s counsel was asked whether he would like to object to the charge he responded:
“Judge, yes, your Honor, I do. On page two, paragraph three, the paragraph on voluntary intoxication, I would object to that paragraph being in the charge at all; but if your Honor overrules my objection, I would object to an additional jury charge and I would now object to the paragraph on voluntary intoxication, “introducing the substance into the body.” (Emphasis added.)
We find appellant’s general objection to be insufficient to preserve error. The Texas Rules of Criminal Procedure provide that before the court’s charge is read to the jury counsel shall present objections “distinctly specifying each ground” theretо. TEX.CRIM.PROC.CODE.ANN. § 36.14 (Vernon Supp.1985). The Court of Criminal Appeals has held that where the defendant objects to the court’s charge ‘as a whole’ the same is not specific enough to apprise the court of the nature of his complaint and thus presents nothing for review.
Hackbarth v. State,
In his second ground of error, appellant contends that the trial court erred by failing to instruct the jury regarding the defense of involuntary intoxication. It is well settled that where an issue is raised by the evidence, the accused is entitled to have the matter submitted to the jury.
Barree v. State,
The record reveals that appellant and the informant abused drugs together on many occasions. In the few days prior to the initial sale appellant inhaled by “free-basing” a substantial amount of сocaine which greatly affected his mental stability. Appellant initially refused the informant’s invitation to sell cocaine. However, when the informant reminded appellant that he was indebted to him, appellant agreed to sell the cоcaine. About three months later, again at the request of the informant, appellant entered into a second sales transaction. At trial, both the informant and the DPS officer testified that appellant’s use of cocaine causеd him to lose the ability of rational thought. Appellant urges that as the evidence shows that he was coerced and tricked by the informant with regard to the sale, the court’s failure to instruct the jury on involuntary intoxication constitutes reversible error.
We find that becausе there was no evidence in the record that appellant’s intoxication was involuntary the trial court’s refusal to instruct the jury on the issue was not error. The evidence appellant has brought to our attention concerns the question of involuntary
sale
of cocaine; not the involuntary use of the drug. It is not disputed that when police officers gather evidence through the assistance of an informant some deception is employed. However, where such deception affects only the identity of the buyer, and not the accused’s volition in ingesting an intoxicant, there is no basis for an instruction on involuntary intoxication.
Torres v. State,
*801 Appellant next argues that the trial court erroneously refused to grant a new trial despite evidence of jury misconduct. TEX.CODE CRIM.PROC.ANN. art. 40.-03(7) & (8) (Vernon 1979). The jury misconduct at issue involves the discussion of parole law. The Court of Criminal Appeals has held that for a discussion of parole during deliberation to constitute reversible error, it must be established that there was:
(1) a misstatement of the law
(2) asserted as a fact
(3) by one professing to know the law
(4) which is relied on by other jurors
(5) who for that reason changed their vote to a harsher punishment.
Sneed v. State,
At the hearing on the motion for nеw trial, three jurors testified about the jury deliberations during the penalty stage of the trial. It appears that several jurors had friends or relatives who had been sentenced to serve time in the state correctional system and that during deliberations these jurors shared their knowledge regarding parole. Juror Lynch testified that the jury discussed periods of fourteen to sixteen months, “two for one” jail time, and two years as the actual time a defendant would probably serve on a five „ year sentence. Lynch further testified that this information was presented factually and that she relied on it exclusively in changing her vote from probation to five-years imprisonment. The testimony elicited from Juror Prokop confirms that parole was discussеd extensively during deliberations. Prokop testified that although she was initially in favor of probation on both counts she changed her vote in favor of jail time. Prokop stated that many factors influenced her change of mind including the information regаrding parole provided by her fellow jurors. On cross examination by the state, Prokop testified that it was “common knowledge that inmates are let out on parole and very seldom serve the full time.” When asked by the State whether the statements rеgarding the period of time appellant would serve if given a five-year term were presented factually as the law, Prokop responded: “[W]e were all speculating — I’m not sure if anyone knew the law.” The State called the jury foremаn, Mr. Block who testified that on more than two occasions he instructed the jury not to discuss parole and that to his knowledge, there was no discussion with regard to how much time a person would actually serve on a five-year sentence. Block further testified that to his knowledge, only one juror mentioned a friend who was serving time and when he cautioned the juror not to discuss parole, the discussion ceased.
Before applying the
Sneed
five-prong test we note that the
Sneed
decision was handed down only days prior to the hearing on the motion for new trial. Appellant’s counsel has admitted that in preparing the jurors’ affidavits and his questions for the hearing he relied on a different standard of review than that required by
Sneed. See Munroe v. State,
The second prong of
Sneed
requires that the information regarding parole be asserted as a fact by a juror. The third prong requires that the juror sharing the information must profess to know the law. Lynch testified that the parole information was
presented factually.
Prokop stated that the juror’s parole discussion was
speculation.
Block testified that to his knowledge there was
no parole discussion
and in the instance when a juror started to discuss it, he stopped the juror and admonished her and the others against any such discussions. It is well settled that issues of fact as to jury misconduct raised on a motion for new triаl are for the determination of the trial judge, and there is no abuse in discretion in overruling the motion where there is conflicting evidence.
Keady v. State,
In his fourth ground of error appellant argues that the trial court erroneously refused to grant a new trial because of the jury’s discussion of probation. Appellant complains that the jury received “other evidence” and committed jury misconduct when it discussed the “probation” of one of the juror’s relatives. TEX.CODE CRIM. PROC.ANN. art. 40.03(7) (Vernon 1979).
After a jury retires to deliberate, no additional evidence may be received. Such other evidence would be contrary to the constitutional provisions according to the defendant the right of confrontation.
Stephenson v. State,
Juror Lynch’s affidavit states that discussions regarding the nature of probation supervision led her to vote against a probated sentence. At the hearing on the motion for new trial it became evident that Juror Lynch, as well as Juror Prokop, confused the concept of probation with parole and that most of their discussion actually concerned the latter. Foreman Block testified that during deliberations someone mentioned that he knew a person on probation and that this person had to report to his probation officer periodically. Finally, at least one court has held that discussion of the terms and conditions оf probation does not amount to the receipt of other evidence.
Jones v. State, supra
In his fifth and sixth grounds of error, appellant argues that the trial court erroneously refusеd to grant a new trial because of evidence received by the jury describing jail conditions and because of unauthorized conversations concerning jail conditions. In his seventh ground of error appellant contends that the State fаiled to rebut the presumption of harm which arose when juror Prokop was permitted to separate during deliberation. Appellant neglected however, to raise these three contentions in his motion for new trial. To preserve error, such allegations must be alleged in the motion so as to provide the State with an opportunity to rebut them.
McIlveen v. State,
*803 Appellant’s convictions for two counts of delivery of a controlled substance are affirmed.