author: CALVERT, Chief Justice.

text:
    CITY OF HOUSTON, Petitioner, v. Roy BLACKBIRD et al., Respondents.
    No. A-10563.
    Supreme Court of Texas.
    July 14, 1965.
    Rehearing Denied Oct. 6, 1965.

      John Wildenthal, Jr., City Atty., Houston, W. Lawrence Cook, Jr., Asst. City Atty., for petitioner.
    Presley E. Werlein, Jr., Houston (Jack K. Leeka, Houston, of counsel), for respondents.
   CALVERT, Chief Justice.

This is a suit in the nature of an appeal instituted by abutting property owners to contest the amount of assessments levied against their property for costs of paving improvements. Following a jury trial, the court rendered judgment voiding the assessments. The Court of Civil Appeals affirmed. 384 S.W.2d 929. We affirm.

The first question for decision is whether abutting property owners who sue under Sec. 9 of Article 1105b to contest assessments levied against their property for costs of paving improvements are entitled to a trial de novo of issues relating to benefits accruing from the improvements. We hold they are not.

By ordinance of February 25, 1959, the Houston City Council determined a necessity for and ordered the permanent improvement of Woodway Drive between West Broad Oaks Drive and South Post Oak Lane. Respondents each own tracts of land abutting on the north side of Wood-way Drive between Sage Road and West Broad Oaks Drive. Woodway Drive was a two-lane paved road without curbs and gutters. The improvements contemplated by the City Council in passing the ordinance called for construction of two twenty-four foot roadways separated by a twelve foot esplanade, together with curbs and gutters incidental to such improvements. Following notice and a hearing as required by Article 1105b, the City Council passed Ordinance 59-510. This ordinance established estimated benefits to the property of respondents at $6.00 per front foot, levied assessments against the respondents and their property at that rate, closed the hearing and denied all objections to and protests against the assessments. Respondents then instituted their suit in the district court within the time prescribed by Article 1105b.

Respondents alleged in their petition that neither they nor their property would receive any special benefits from the construction of the proposed improvements; that the City Council arbitrarily determined that plaintiffs would receive special benefits therefrom; and that construction of the improvements would reduce the value of their property. They prayed for judgment setting aside the assessments and declaring the paving certificates issued or to be issued thereunder null and void.

The case was tried to a jury. Respondents adduced evidence in support of their allegations, introduced Ordinance 59-510 into evidence, and rested their case. The City offered no evidence. In response to separate special issues directed at each individual respondent's property, the jury found (1) that the work contemplated by the ordinance did not result in special benefits to the respective respondent’s property in the amount of $6.00 per front foot, and (2) that the action of the City Council in passing the ordinance levying assessments against the property of each plaintiff was arbitrary and capricious.

Article 1105b authorizes incorporated cities, towns and villages to determine the necessity for and to order the improvement of highways within their corporate boundaries, and to provide for the payment of the improvements by the city or partly by the city and partly by assessments against abutting property and its owners. If part of the cost is to be paid through assessments against abutting property and its owners, a comprehensive procedure is provided by the statute for determining the amount of the assessments to be levied. A preliminary estimate of the total cost of the improvements must be made, and the assessments against abutting property and owners may not exceed the estimated cost of curbs, gutters and sidewalks and nine-tenths of the cost of other improvements. Costs of the improvements must be apportioned among the parcels of abutting property and their owners in accordance with the “Front Foot Plan or Rule” unless, in the opinion of the governing body, application of the rule would result in injustice or inequality, in which event the costs may be assessed in such proportion as is deemed just and equitable “so as to produce a substantial equality of benefits received and burdens imposed.”

The provisions of Sec. 9 of Art. 1105b are crucial to our inquiry. Those which are relevant read as follows:

“No assessment * * * shall be made against any abutting property or its owners, * * * until after notice and opportunity for hearing as herein provided, and no assessment shall be made against any abutting property or owners thereof in excess of the special benefits of such property, and its owners in the enhanced value thereof by means of such improvements as determined at such hearing. * * * Such hearing shall be by and before the governing body of such city and all owning any such abutting property, * * * shall have the right, at such hearing, to be heard on any matter as to which hearing is a constitutional prerequisite to the validity of any assessment authorized by this Act, and to contest the amounts of the proposed assessments, the lien and liability thereof, the special benefits to the abutting prop erty and owners thereof by means of the improvements for which assessments are to be levied, the accuracy, sufficiency, regularity and validity of the proceedings and contract in connection with such improvements and proposed assessments, and the governing body shall have power to correct any errors, inaccuracies, irregularities, and invalidities, and to supply any deficiencies, and to determine the amounts of assessments and all other matters necessary, and by ordinance to close such hearing and levy such assessment * * *.
“Anyone owning * * * any property assessed, * * * who shall desire to contest any such assessment on account of the amount thereof, or any inaccuracy, irregularity, invalidity, or insufficiency of the proceedings or contract with reference thereto, or with reference to such improvements, or on account of any matter or thing not in the discretion of the governing body, shall have the right to appeal therefrom and from such hearing by instituting suit for that purpose in any court having jurisdiction, within fifteen (15) days from the time such assessment is levied, * *

From the emphasized language in the foregoing statutory provisions it will be noted that the only limitation therein on the amount of assessments which may be made by the governing body of a city against abutting property and its owners is that the assessments shall not exceed “the special benefits of such property, * * * as determined at such hearing.” It will be noted also that authority is expressly conferred on owners to contest at the hearing both “the amounts of the proposed assessments” and “the special benefits to the abutting property and owners thereof”; but that on appeal, whereas authority is expressly given to contest assessments “on account of the amount thereof,” no authority is expressly given to contest the determination of the amount of special benefits. The failure of the Legislature to provide expressly that abutting property owners should have a right on appeal to contest the amount of special benefits as determined by the governing body of a city is both glaring and significant, particularly since the special benefits thus determined establish a ceiling for assessments. The Legislature must have intended that a finding of special benefits to abutting property and a determination of the amount thereof should be entrusted to the discretion and judgment of the governing body of a city, else these matters would have been made subject to contest on appeal. We hasten to state, however, that this does not mean that such findings and determinations cannot be reviewed in a judicial proceeding.

An assessment against property and its owner for paving improvements on any basis other than for benefits conferred and in an amount materially greater than the benefits conferred, violates Sec. 17 of Article 1 of the Constitution of Texas, Vernon’s Ann.St. which prohibits the taking of private property for public use without just compensation. Hutcheson v. Storrie, 92 Tex. 685, 51 S.W. 848, 45 L.R.A. 289 (1899). The right to judicial review of acts of legislative and administrative bodies affecting constitutional or property rights is axiomatic. See Brazosport Sav. & L. Ass’n v. American Sav. & L. Ass’n, 161 Tex. 543, 342 S.W.2d 747 (1961); City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951); Stockwell v. State, 110 Tex. 550, 221 S.W. 932, 12 A.L.R. 1116 (1920). The City of Houston does not question the verity or soundness of this proposition. What the City does question is the right of respondents in this case to a full-blown de novo trial of the question of benefits. We agree with the City that respondents had no such right; and, accordingly, we agree with the City that respondents were not entitled to a jury trial of the issues in this case and that the jury’s answers to the special issues submitted to them should have been disregarded.

In finding that certain property would be benefitted by the paving improvements and in determining the amount of the benefits, the City Council of the City of Houston was performing acts which are only quasi judicial. Moreover, as heretofore pointed out, it was performing those acts in the exercise of powers entrusted entirely to its discretion and judgment by the Legislature. The statute not only fails to provide expressly that such acts may be the basis of an appeal to the courts, but expressly limits judicial review of undesig-nated grounds of contest to “any matter or thing not in the discretion of the governing body.” Having thus precluded judicial review of such acts to the extent of its constitutional power, there is no basis for holding that the Legislature intended to accord dissatisfied property owners a de novo review thereof. We hold, therefore, that the acts of a governing body of a city in finding benefits to property and in determining the amount of the benefits under Art. 1105b may, when performed in accordance with the statute, be set aside and annulled only because they are arbitrary or are the result of fraud. Accord: Keller v. City of Corpus Christi, Tex.Civ.App., 253 S.W.2d 1009 (1952), writ refused, no reversible error. See Lewis v. City of Ft. Worth, 126 Tex. 458, 89 S.W.2d 975, 978 (1936).

Our holding is not in conflict with Wright v. City of Dallas, Tex.Civ.App., 64 S.W.2d 799 (1933), writ refused; on former appeal, City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973 (1931). As pointed out in Keller, assessments involved in that case were made under Art. 1219, a statute which does not preclude a contest in court of the finding of benefits and the amount thereof. Neither does our holding render meaningless the provision for contest of the amount of assessments in court. The amount of assessments may still be contested if they exceed the benefits as determined at the hearing, or exceed the estimated cost of curbs, gutters and sidewalks plus 90% of the estimated cost of other improvements, or if they are based on benefit determinations which are arbitrary or are the result of fraud.

We are not to be understood as holding that the Legislature is without constitutional power to require a full de novo trial of the question of benefits to abutting property and its owners from paving improvements made under Art. 1105b. The Legislature has made no such requirement, and that question is not before us. For the same reason, prior decisions of this Court upholding legislative requirements for de novo trials of quasi judicial questions referred in the first instance to administrative agencies are not controlling. For such cases, see Key Western Life Ins. Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961), and Scott v. Texas State Board of Medical Examiners, Tex.Sup., 384 S.W.2d 686 (1964).

There is no suggestion in this case that the City Council of the City of Houston acted fraudulently in finding that respondents and their properties would be benefitted by the paving improvements or in determining that they would be benefitted in an amount of six dollars a front foot. The claim is only that the Council acted arbitrarily in making those findings and determinations. Whether the Council acted arbitrarily with respect to such matters is a question of law, not a question of fact. In this respect the rule is the same as that applied in judicial review of decisions of administrative agencies which are not subject to de novo trial. See Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420 (1946). The second question to be decided, then, is whether the evidence in the record before us establishes that the action of the City Council was arbitrary in determining that respondents’ property was benefitted to the extent of six dollars a front foot. In deciding the question, we begin with the presumption that the ordinance levying the assessments is valid, and we weigh the evidence with the basic understanding that discretionary acts of governing bodies of cities should not he lightly overturned.

The evidence in the record discloses, generally, that use of respondents’ property is restricted to single family residences; that before the improvements were ordered, Woodway Drive was a two-lane, asphalt street, with a twenty-four hour traffic count in August of 19S6 of 1,906 vehicles; that the paving improvements were intended to convert the street into a major thoroughfare and that they have accomplished that purpose; that the two-way traffic count was 5,918 vehicles on April 19, 1960 and was 13,-106 vehicles on February 7, 1962, but that an undetermined number of vehicles in the latter count did not traverse the section of the thoroughfare on which respondents’ property abuts; that the homes of respondents are valued in a price range of from $35,000 to $60,000.

Each of the respondent owners testified on the trial, in person or by stipulation, and each testified that his or her property had not been benefitted by the improvements, but that, to the contrary, the value of the property had been decreased or diminished. Estimates of diminished value ranged from 25% to 50%. Diminished value was attributed to the noise and danger stemming from the heavy increase in traffic which made the property less desirable for residential use, particularly for people with children.

One of the respondents had paid $61,500 for his property in 1958, had made improvements in the residence which enhanced its value by some $10,000, and had sold it shortly before the trial in November, 1963, for $61,000 after having it on the market for more than two years. Another bought his property in 1952 because it was on a quiet street. His property had been for sale for several months preceding the trial with only one “ridiculously low” offer.

A real estate broker who operates in the area answered, “There is no question about it,” when asked if respondents’ property had decreased in value. He estimated that values had depreciated up to 25%, and testified there had been no benefits to the property. He testified further that he had attempted to sell property on Woodway Drive since the paving, but that nine out of ten prospective purchasers he had taken to look at the property would not get out of the car because of the traffic.

As heretofore noted, the City offered no evidence in support of the reasonableness of the City Council’s finding and determination that respondents and their property had ben-efitted from the improvements to the extent and in an amount of six dollars per front foot. The ordinance making the determination and levying the assessment was introduced in evidence, without limitation, by respondents. It contains a quotation of some of the testimony of a real estate broker at the hearing before the City Council. He testified at that hearing that in his opinion the property of respondents was benefitted in enhanced value in an amount of eight dollars a front foot. Not all of respondents were present or represented by counsel at the hearing. The witness was not cross-examined with respect to this testimony. Why it was included in the ordinance is not shown. Even if the testimony may be considered in evaluating the reasonableness of the Council’s findings, a matter we need not decide, we give it but little probative force under the circumstances and conclude that it adds little, if anything, to the presumption in favor of the validity of the ordinance.

On the record before us we conclude that the finding by the City Council that respondents’ property was benefitted to the extent and in the amount of six dollars a front foot was clearly arbitrary. In reaching that conclusion we are not unmindful that the reasonableness of the determination must he judged as of the time it was made, and that much of the testimony to which we have referred relates to times and events subsequent thereto; but the heavy increase in traffic with its attendant noise and danger was a readily foreseeable and predictable fact, and proof that this has happened to respondents’ property is the best evidence available of what the City Council should have known would happen when it made its findings. Assessments based on an arbitrary determination of benefits cannot be permitted to stand.

The judgment of the Court of Civil Appeals is affirmed.

ON MOTION FOR REHEARING

City of Houston has filed a motion for rehearing in which it asks that the cause be remanded to the trial court for retrial. The basis for the request is that the case was tried on an erroneous legal theory and that City should be permitted to offer evidence that the finding of the City Council was not arbitrary or unreasonable. In support of its request, City of Houston cites City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 223, 73 A.L.R.2d 640 (1958), in which case, having concluded that the trial court’s judgment was erroneous and should be reversed, we remanded the cause for retrial to afford the respondent an opportunity to develop its evidence. On the record before us in that case, our normal procedure would have required rendition of judgment against the respondent; but having reversed the trial court’s judgment, we were authorized by Rule 505, Texas Rules of Civil Procedure, to remand instead. Therein lies the difference between that case and this.

In this case the trial court rendered and entered a correct judgment on the record before it. It is well settled that an er-rorless judgment of a trial court cannot be reversed in the interest of justice or to permit the losing party to have another trial. See Davis v. Davis, 141 Tex. 613, 175 S.W.2d 226 (1943); National Life Co. v. McKelvey, 131 Tex. 81, 113 S.W.2d 160 (1938); Texas Employers’ Ins. Ass’n v. Brandon, 126 Tex. 636, 89 S.W.2d 982 (1936).

The motion for rehearing is overruled.

      . Unless otherwise indicated, all references to statutes are to Vernon’s Texas Civil Statutes.

      . Emphasis ours throughout unless otherwise indicated.


source: Caselaw Access Project

author: BELCHER, Commissioner. MORRISON, Judge. WOODLEY, Presiding Judge

license: Public Domain

text:
    Paul R. CRAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 36919.
    Court of Criminal Appeals of Texas.
    Oct. 7, 1964.
    Rehearing Denied Nov. 25, 1964.
    Second Motion for Rehearing Denied Jan. 13, 1965.

      Jim S. Phelps, W. W. Kilgarlin, Fred W. Robinson, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Jon N. Hughes, Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, death.

The testimony of the state shows that the appellant killed Warren Russell Crain, a boy, eleven months old, by choking and strangling him with his hands. Except for one deleted paragraph, appellant’s voluntary written statement made to the officer on the day of the killing, and two notes written by appellant, all of which show the killing of the boy by appellant, were introduced in evidence without objection.

Relying on temporary insanity as his sole defense, the appellant entered a plea of not guilty. Testifying in his own behalf, the appellant admitted that he killed the boy by choking and strangling him, but stated that he (appellant) blacked out at the time and did not realize he was committing such act until it was over. He offered other testimony bearing on his defense of insanity.

The jury resolved the issue of insanity against the appellant, and the evidence is sufficient to support their verdict.

Appellant insists that the trial court erred in refusing his motion that he be examined at the expense of the state by a competent psychiatrist who was not connected with the prosecution.

There is no constitutional or statutory provision authorizing that such services be furnished by the county or state to a person charged with crime. Ellzey v. State, 158 Tex.Cr.R. 604, 259 S.W.2d 211; Bush v. State, Tex.Cr.App., 353 S.W.2d 855.

It is contended that the trial court erred in ruling that if appellant introduced any part of his military record, the state would he permitted to introduce the remainder of such record, and again erred in refusing the offer of his military record to perfect his bill of exception.

The statement of facts on the main trial reveals that from a discussion between the court and counsel for both parties that the military record consisted of numerous reports and instruments.

The court stated that, as he understood the rule, if appellant introduced any part of the record, the state could offer any part or all of the remainder; that any action of the court was premature until the military record or a portion of it was offered in evidence; and that a bill of exception could be perfected if there was an objection followed by an adverse ruling. No offer was made by the appellant of all or any portion of his military record in evidence. In the absence of any offer in evidence of the military record, no error is shown.

It is insisted that the trial court erred in refusing to instruct the jury not to consider the prosecutor’s questions as to whether appellant was discharged because he had been convicted of being absent without leave and for theft of an automobile while in the military service in Germany, even though appellant answered in the negative.

Following two questions regarding appellant’s convictions for AWOL and automobile theft, request was made of the court to instruct the jury to disregard the questions as to whether convictions were the reasons for his discharge.

The cross-examination of the appellant was in part as follows:

“Q. (State) Isn’t it true you were convicted as to — for theft and received four months and loss of pay for stealing a coat, a top coat, and a suit from a soldier while you were in Germany? You received four month and loss of pay from it ?”
Appellant: “Objection. Its not in rebuttal.”
The Court: “Sustain the objection. Put a time limit on it.” * * *
“Q. When were you convicted of that by court martial and given four months and loss of pay for theft?”
“A. There was a question upon the theft that was involved.”
“Q. You were convicted, weren’t you?”
“A. I was convicted of a lesser, yes sir.”

During the cross-examination of Dr. Sher he testified:

“Q. In your reports you have stated that the defendant told you he was court martialed for going AWOL and for theft of an automobile, is that correct?”
“A. That’s what I have in my reports.”
“Q. Could you have confused that with the theft of some clothes?”
“A. I suppose so but I don’t think so. I think there’s some pretty wide spread between clothes and an automobile. That’s what he told me.”
“Q. I agree there is a wide spread between the offense listed. He told you in 1959 he received a court martial for going AWOL and theft of an automobile ?”
“A. That’s correct.”

In view of all the evidence, no error is shown by the refusal of the court to instruct the jury not to consider the questions about the former convictions.

Complaint is made of the use of the phrase “a person shall not be tried for an offense if he becomes insane” on the ground that it constitutes a comment on the weight of the evidence, thereby leading the jury to believe that appellant would not be on trial if he were insane.

From the court’s charge on insanity and the findings to be made thereon by the jury, it appears that the phrase complained of did not mislead the jury, and that appellant’s rights were fairly and adequately protected in the charge.

Complaint is made of the refusal of members of the jury, after they had been discharged, to talk with appellant’s attorney, because they had agreed not to discuss what went on during their deliberations, on the ground that their agreement made it impossible to ascertain any jury misconduct.

There is no statutory authority requiring a disclosure by the members of the jury of the matters considered during their deliberations. The mere agreement of the jury not to discuss their deliberations is not alone sufficient to call for a reversal. Farrar v. State, 162 Tex.Cr.R. 136, 277 S.W.2d 114; Graves v. State, Tex.Cr.App., 382 S.W.2d 486, 1964.

The refusal of appellant’s request to instruct the jury, in accordance with the provisions of Art. 2, Vernon’s Ann.P.C., that the object of punishment is to suppress crime and reform the offender was not error, as it would constitute a comment on the weight of the evidence. White v. State, 165 Tex.Cr.R. 339, 306 S.W.2d 903.

The bills of exception contained in the transcript were timely filed with the clerk of the trial court. The bills were qualified by the trial judge and timely returned to the clerk. Appellant objected and excepted to such qualifications, and the exception was certified by the trial court, and no bystanders bills were filed. Therefore the bills cannot be considered. Willie v. State, 169 Tex.Cr.R. 393, 334 S.W.2d 159; English v. State, 170 Tex.Cr.R. 56, 338 S.W.2d 446.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant’s court appointed counsel in forceful argument attacks our original opinion in two major respects. He complains of our failure to discuss his contention that the court erred in refusing his request to open and close the argument on the issue of insanity. Though we did fail to discuss this contention in appellant’s case, we did dispose of this question in our opinion in Knoeppel v. State, Tex.Cr.App., 382 S.W.2d 493, decided the same day as appellant’s case on original submission. We adopt by reference in the case at bar the reasons there stated for the disposition of this question.

He further focused his attack upon the last paragraph of our original opinion and takes us to task for not applying, as he says, the rule in Moore v. State, Tex.Cr. App., 380 S.W.2d 626. In Moore the trial judge certified that the following action was taken:

“The Court does not certify to the truthfulness of the contents therein but he does certify that they are only contentions of the Defendant.”

On rehearing the majority held that “the Court’s certificate in the bill constituted no action at all”, therefore, no rule of procedure was announced in Moore. But here we do have something in that the court in his certificate referred to the record and, in effect, stated that if error is there presented he was bound thereby. Another and far more important difference is that Moore did not bring himself within the rule announced in Willis v. State and English v. State, supra, whereas appellant did. In order to demonstrate that appellant’s cause was in no wise injured by our adherence to the Willis and English rule, we will discuss appellant’s contentions which were not covered by our original opinion. In the first paragraph hereof we have answered his fourth contention.

His fifth contention was that the court erred in overruling his challenge for cause to venirewoman Pancamo when she replied in the affirmative to the question, “If you find him sane and you find him guilty, you would still send him to the electric chair?” Prior to this question she had been informed that appellant was charged with killing his 11 months old child and that the only issue to be submitted for her decision was that of appellant’s sanity. Under the circumstances her answer showed no prejudgment.

His sixth contention is that the court erred in overruling his challenge for cause to venirewoman Craig. After careful interrogation back and forth with slight variation in the responses, Mrs. Craig finally told the court that if she found the defendant to be of unsound mind by a preponderance of the evidence, she could find him not guilty and would be fair with anyone at anytime for any purpose.

His seventh contention was that the court erred in overruling his challenge for cause to venirewoman Bowdoin. She also had been informed that there would be no contest as to appellant’s guilt once the State had made out its case. This being true, the sole issue for her decision was to be answered from a preponderance of the evidence, and we do not find her disqualified because she may have said that she would require an improper burdén of proof on an issue which was not contested.

His eighth contention was that the court erred in failing to grant him additional peremptory challenges after he had been forced to exercise his last challenge on a venireman who should have been removed for cause. This last venireman in question was Mr. Hoza, and his examination reveals no grounds for reversal.

His ninth contention was that one of the jurors had served under a false name and that the deputy sheriff in charge of the venire was informed of his true name before he was questioned on voir dire. The jury summons was addressed to Wallace Murphy at Murphy Wallace’s address. Mr. Wallace appeared for service and notified the bailiff as to the mistake but was addressed as Mr. Murphy during the interrogation. The venireman, having told the bailiff that his names had been transposed, answered counsel’s question without correcting them because he was often addressed as Mr. Murphy as well as Mr. Wallace and that his wife often answered when addressed as Mrs. Murphy. It appears to us that Mr. Wallace was acting in perfect good faith, and we perceive no injury from the above and will therefore not discuss the question of appellant’s diligence.

His eleventh contention was that the court erred in not granting a new trial when it was discovered that juror Laing, in addition to his insurance business, had been an officer in the local Farm Bureau unit which had some three years prior to the instant trial been critical of the voting record of the Honorable Bill Kilgarlin, who was at that time a member of the Texas House of Representatives. On Laing’s voir dire examination, when asked his type of business, he replied that he was an insurance agent. He was not asked any question concerning his activities in connection with the Farm Bureau. At the hearing on the motion for new trial, Attorney Kil-garlin testified at length about a breakfast given by the local Farm Bureau at which his voting record in the House had been criticized and stated that after the trial he had talked to Laing over the telephone and Laing had told him that he remembered Attorney Kilgarlin’s being at the breakfast. Laing, however, during his examination after the trial remembered the breakfast, but did not recall that Kilgarlin’s record was discussed. Counsel was unable to establish any such prejudice against him personally as might have rendered Laing unacceptable as a juror.

His twelfth contention was that Article 616, Vernon’s Ann.C.C.P., which provides for a challenge for cause in a capital case if the venireman has conscientious scruples against the infliction of the death penalty, is unconstitutional. We commend counsel for his studious approach to this problem, but we are forced to agree with the State that unless the Legislature in its wisdom abolishes the death penalty as possible punishment for crime, Section 11 of Article 616, supra, is essential in order that a death penalty verdict may be predictable.

The expert witnesses that he sought to call would be properly heard by a Legislative committee, but the court did not err in refusing to hear the witnesses because according to the duty of his office he was bound to follow the above Article. It would have been idle for him to have conducted an academic forum.

His fourteenth contention was that the court erred in not permitting him, by his interpretation of Article 2, Vernon’s Ann.P.C., to interrogate the venire so as to inform them that if they inflicted the death penalty they would not be reforming the offender and therefore not following the law of Texas. Such an interpretation of the object of punishment in the field of criminal law would be at variance with the statutes authorizing the imposition of the death penalty.

His fifteenth contention was that the court erred in refusing to permit him to introduce evidence before the jury by expert witness who would express the opinion that the awarding of the death penalty does not deter or suppress crime. What we have said in connection with his twelfth contention is deemed a sufficient answer to this contention.

His last contention not heretofore discussed is that the court erred in denying his motion made prior to trial for a production among other things of “all written statements made by witnesses in connection with this case.” The record reflects that a psychiatric report was made available to counsel. In all other respects the trial judge carefully followed the rules announced in Gaskin v. State, 172 Tex.Cr. App., 353 S.W.2d 467, and appellant has shown no injury.

Remaining convinced that this cause was properly decided originally, appellant’s motion for rehearing is overruled.

WOODLEY, Presiding Judge

(concurring).

The court’s qualification to appellant’s bills of exception reads:

“Each of the Defendant’s foregoing Formal Bills of exception is qualified to the extent that any matter, facts, or conclusions of the Defendant set forth in each of the bills which are at variance from the facts shown in the official record in this case, as prepared by the court clerk and the court reporter, are not certified by me as true but are certified by me as being the contentions of the Defendant; and each of the bills as so qualified is approved and certified only insofar as it correctly states the matters as they appear in the full and complete statement of facts in Question and Answer form and the official transcript both of which are filed in this case.”

The qualification to Ormond Moore’s bill reads:

“The foregoing Bill of Exceptions was presented to me in due time and was approved and ordered filed, subject to the following qualifications:
“The Court does not certify to the truthfulness of the contents therein but he does certify that they are only contentions of the Defendant.”

Comparison of the qualification to appellant’s formal bills with the qualification of Ormond Moore’s bill manifests that if the latter “constituted no action at all,” the same is true as to the qualification to appellant’s bills.

If the court’s qualification, or attempted qualification, of Ormond Moore’s formal bill requires that such bill be treated as approved, the same is true as to appellant’s formal bills of exception and there was nothing for the appellant to except to, or to agree or disagree with.

The Moore bill was treated by the majority as approved by the trial judge without qualification. Such holding was dicta. The result reached in the case before us demonstrates that the holding was wrong.

Appellant’s formal bills of exception cannot be considered because the trial judge refused to approve them as filed and the appellant did not agree to his reasons, but excepted to his qualification. Art. 760d, Vernon’s Ann.C.C.P. and cases cited under Note 3.

This appeal was properly disposed of on original submission, for which reason I concur in the overruling of appellant’s motion for rehearing.


author: DICE, Commissioner.

text:
    Carlos Alcoser OCHOA, Appellant, v. The STATE of Texas, Appellee.
    No. 38293.
    Court of Criminal Appeals of Texas.
    June 9, 1965.
    Rehearing Denied Oct. 20, 1965.

      Garland Wier, San Antonio, James C. Onion (On Appeal Only), San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Teodoro Arevalo, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated ; the punishment, five days in jail and a fine of $50.

It was undisputed that on the night of September 15, 1963, appellant was stopped and arrested by highway patrolmen B. C. Johnson and John Newding while driving his automobile upon U. S. Highway 87, in Bexar County.

At the trial, both patrolmen testified that they stopped appellant after observing his automobile weaving on the highway and fixed the time of his arrest at approximately 9:50 p. m. Each expressed the opinion that at such time appellant was intoxicated.

Appellant admitted having consumed “four or five beers” but denied that he was drunk.

While testifying as a witness, patrolman Johnson stated that after appellant was taken to jail he gave a sample of urine, which was placed in a tube and sealed with a label bearing the subject’s name, the witness’s name and the time the sample was obtained. The tube was placed in a container, which was then sealed with a label bearing the name and return address of the witness. He stated that the next day he mailed the container to Austin, by putting it in a mailbox, addressed to Box 4087, North Austin Station.

Chemist and toxicologist Leslie C. Smith, of the Department of Public Safety in Austin, testified that on October 1, 1963, he received through the United States mail a package identified as state’s exhibit #1. The package was a cylindrical container postmarked September 29, at San Antonio, Texas, and addressed:

“TO—
“Texas Department of Public Safety
“Chemical Laboratory
“Box 4143 North Austin Station
“Austin 51, Texas
“From B. C. Johnson THP
“722 Rayburn Dr.
“San Antonio, Tex.”

Chemist Smith testified that he opened the package by breaking the seal, and removed therefrom a sealed tube, which was identified as state’s exhibit #2. The tube bore the following notations:

“Name of Subject Carlos Alcoser Ochoa
“Place of Arrest iy2 Mi E-S-A- US-87
“Time of Arrest 9:50 P.M. Date 9-15-63
“Sample Taken by B. C. Johnson
“Title Patrolman #283 Time Sample taken 10:10 P.M.
“Officer’s Signature B. C. Johnson”

Over appellant’s objection that a proper predicate had not been laid because the chain of custody was not established, the two exhibits were admitted in evidence and chemist Smith was permitted to testify that an analysis which he made of the contents of the tube showed that the liquid therein contained 0.38 percent alcohol, which would be equal to 0.30 percent alcohol in the blood and that any person with such amount in the blood would be intoxicated.

Appellant’s sole claim of error is the court’s action in admitting the two exhibits in evidence and permitting the chemist to testify relative to the results of his analysis of the urine specimen.

It is appellant’s contention that because officer Johnson was not asked to identify state’s exhibits #1 and #2 as the ones he mailed to Austin on September 16, or asked to identify the urine specimen introduced in evidence (exhibit #2) as the one given by appellant, the chain of custody was not shown and his objection to the evidence should have been sustained. He also points to the discrepancy in the record between the officer’s testimony that he mailed the container in San Antonio on September 16, addressed to Box 4087, North Austin Station, and the postmark of September 29 on the container received at the department in Austin, addressed to Box 4143, North Austin Station.

While officer Johnson was not asked to identify the two exhibits at the trial, his testimony shows that he did mail a container to the department in Austin which contained the urine specimen given by appellant. His testimony further shows that the tube which contained the specimen was labeled with both his name and that of appellant and the time the sample was obtained. The two exhibits received by the chemist in Austin contained this information as well as the return address of officer Johnson. Under the record, we hold that the chain of custody was sufficiently established and the court did not err in admitting the two exhibits in evidence and permitting the chemist’s testimony. We do not agree that the discrepancy in the record as to the box number of the addressee and the date the exhibits were mailed rendered.the same incomplete. In Tonnan v. State, 171 Tex.Cr.R. 570, 352 S.W.2d 272, it was held that a discrepancy as to the postmark on a container mailed to the Department of Public Safety did not render the chain of custody incomplete.

Brown v. State, 240 S.W.2d 310, cited by appellant, is not here applicable, because in that case there was no proof that the blood sample mailed to the department in Austin was the accused’s blood. Here, officer Johnson swore positively that the sample he mailed to Austin was the urine specimen of appellant.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Ex parte Aurelio MURO.
    No. 38396.
    Court of Criminal Appeals of Texas.
    June 16, 1965.
    Rehearing Denied Oct. 20, 1965.
    John Whiteside, Fort Worth, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

On an appeal to this court from a conviction for assault with intent to murder, with punishment assessed at five years, the judgment was affirmed. Muro v. State, Tex.Cr.App., 387 S.W.2d 674. The record on appeal contains a statement of facts of the evidence.

The relator herein sought his release by writ of habeas corpus on the ground that Esther Ashmore testified as a witness on behalf of the state and after the judgment of conviction had become final she retracted her testimony. The writ was granted and a hearing was had, the writ being made returnable to this court in accordance with the terms of Art. 119, Vernon’s Ann.C.C.P.

From the record of the trial it appears that the assaulted party testified as a witness for the state. The appellant testified and called other witnesses who supported his plea of self defense. The testimony of these witnesses on the trial, including that of Esther Ashmore, is sufficiently summarized in the opinion aforesaid.

At the hearing on the writ, the witness Ashmore repudiated her testimony given at the trial. She testified on the hearing that the assaulted party, with whom she had been dating for some time before the difficulty, was intoxicated, that he pushed the appellant and put his hand in his (the assaulted party’s) pocket, and that he carried a knife. This testimony was contrary to that given by her on the trial.

There is no evidence that the prosecuting attorney knew or had reason to believe at the time of the trial that any of the testimony given by the state’s witness Ashmore was false, if it was. At the hearing, Ash-more testified that after the conviction had become final she went to the office of the state’s attorney. On cross-examination by him about her visit to the office she stated:

“You told me that you already knew that I was going out with Martinez (assaulted party); that somebody had told you. * * * And that’s the only thing that I talked to you about. * * And you told me to go see Mr. White-side, the lawyer; and I didn’t have nothing else to say, so I just left.”

This being an indirect attack upon the judgment of conviction, the sufficiency of the evidence is not before us for review. The only question presented is whether the judgment is void.

From the record, it is concluded that the judgment is valid as against the collateral attack made thereon.

The application is denied.

Opinion approved by the Court.


author:
McDONALD, Presiding Judge.
      MORRISON, Judge

text:
    Ex parte Robert Dale NEWELL.
    No. 38510.
    Court of Criminal Appeals of Texas.
    June 26, 1965.
    Rehearing Denied Oct. 20, 1965.

      L. Wayne Scott (court appointed), Waco, for appellant.
    Don Hall, Dist. Atty., Jim Bock, Asst. Dist. Atty., Waco, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Relator made an application for writ of habeas corpus under Article 119, Vernon’s Ann.C.C.P., to this Court after he had been convicted on the 6th day of October, 1960, for the offense of robbery by assault upon his plea of guilty; that he confessed after being indicted; that he requested the assistance of counsel; that he was told, “No lawyer is needed to confess your guilt”; that he did not have benefit of counsel prior to the time he entered the courtroom. This Court ordered the Honorable Vic Hall, District Judge, to develop the facts.

The State stipulated that the confession that was used was taken after the indictment. It was shown that the court reporters could not locate the records of the trial.

Don Hall testified that he was assistant district attorney at the time the case was tried and was district attorney at the time of the hearing; that according to the records the offense took place approximately 1:45 on September 20, 1960; the confession was made the 30th of September, 1960; the plea of guilty was October 6, 1960. It was shown that Mike Beard was appointed to represent the relator; that he had extensive experience in criminal matters; that relator told him he was guilty and he wanted to plead guilty; that he had a discussion and did not discuss it with relator for more than half an hour and made no independent investigation; that in other cases after checking with an accused he had refused to plead them guilty.

Burney Walker testified that he was district attorney; that the confession obtained from relator was introduced against him. It was shown that no objection was made to the introduction of the confession.

Relator testified that he was arrested outside of Waco and taken to the city jail; that he talked to the sheriff and later his co-defendant, Brawdy, talked to the sheriff and he did not see him any more; that he was in a bare tank by himself; that he requested to see counsel; that he was asked if he would make a confession with the robbery by firearms dismissed and he answered, “To be honest, no, I wasn’t”; that he only talked to appointed counsel for a short time; that he did not remember the details surrounding the crime.

Coy Barrett testified that he was assistant district attorney of McLennan County; that he took the statement from relator; that relator did not ask for counsel.

Relief is sought because he did not have an attorney at the time the confession was made.

This case is distinguishable from Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Escobedo asked to see his attorney, and his attorney asked to see Escobedo prior to the confession.

In the present case, no attorney was asked for by relator; there were no threats, compulsion or persuasion.

Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, had a statement by Massiah to a co-defendant, Colson, heard by a federal agent, and it was held inadmissible because the statement was made without counsel subsequent to indictment. In Massiah counsel had been retained. In the present case none had been retained.

The relief sought is denied.

MORRISON, Judge

(concurring).

I agree to the denial of the writ. It would have been an impossible task for the State to have refuted petitioner’s testimony that he told “them” at the jail that he desired the services of an attorney. Had he been more specific as to names, descriptions or dates, another question might have been presented.


author: McDONALD, Presiding Judge. WOODLEY, Judge

text:
    Dewey DAUGHERTY, Appellant, v. The STATE of Texas, Appellee.
    No. 38419.
    Court of Criminal Appeals of Texas.
    June 23, 1965.
    Rehearing Denied Oct. 20, 1965.
    Joel C. Elliott, Canton, for appellant.
    Bob Bartlett, Dist. Atty., Canton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant was convicted for aiding a prisoner to escape from the custody of the sheriff; his punishment, three years.

The record reflects that appellant went to the jail to visit his brother Douglas Daugherty; that he took money from Douglas Daugherty to buy a gun; that he bought a gun at a pawn shop in Dallas and delivered it to his brother in jail; that later, Gillingham, another prisoner, pulled the gun on the sheriff and jailer; that Douglas Daugherty and the other prisoner escaped jail and from the custody of the sheriff.

Appellant’s confession was introduced which recited that he thought his brother was being held for burglary; that he was given $60.00 to buy a gun; that he paid $30.00 for the pistol and $5.00 for a box of shells; that he delivered the gun to his brother in the jail at Canton; that he wanted to help him; that he tried to talk him out of breaking jail; that he left his brother’s car parked at the courthouse.

Appellant did not testify nor offer any evidence in his behalf.

It is contended that the evidence is insufficient to support the conviction in that the conviction should have been under Article 326, P.C., denouncing aiding one charged with a felony to escape from jail.

Article 329, P.C., under which the conviction was had, was complied with. The State had the right and privilege to carve or to elect to prosecute as it did.

In Shannon v. State, 170 Tex.Cr.R., 338 S.W.2d 462, conviction was for theft; the proof showed robbery. The Court held that no successful complaint could be made that proof showed robbery and not theft; that the State may carve out of any transaction whatever crime the facts will support, and the accused is in no position to complain.

The sentence imposes punishment at not less than 3 years, nor more than 3 years confinement in the Texas Department of Corrections. The sentence is reformed to read not less than 2 years, nor more than 3 years in the Texas Department of Corrections.

Finding the evidence sufficient to support the verdict, and no reversible error appearing, as reformed, the judgment is affirmed.

WOODLEY, Judge

(dissenting).

The indictment, drawn under Art. 329 P.C., alleged that appellant did: “then and there unlawfully and willfully aid in the escape of James Douglas Daugherty, a prisoner, from the custody of B. W. Ward, who was then and there the duly qualified Sheriff of Van Zandt County, and as such, then and there held in his custody, the said James Douglas Daugherty on an accusation of a felony; and the said Dewey Daugherty, then and there knowing the premises, with the intent to aid in the escape of said prisoner, did then and there unlawfully and willfully smuggle a pistol to a prisoner, James Douglas Daugherty, which said act so done by the said Dewey Daugherty, was calculated to effect the escape from custody, of the said James Douglas Daugherty, against the peace and dignity of the State.”

Article 329 P.C. provides:

“Whoever wilfully aids in the escape of a prisoner from the custody of an officer by whom he is legally held in custody on an accusation of felony, by doing any act calculated to effect that object, shall be confined in the penitentiary not less than two nor more than seven years; and if, in aiding in the escape, he shall make use of arms, he shall be confined in the penitentiary not less than two nor more than ten years.”

The evidence shows that appellant went to the Van Zandt County Jail, where his brother Douglas was a prisoner charged with a felony; that he took money from his brother with which to buy a pistol; that he bought the pistol at a pawn shop in Dallas and took it to his brother, and that a few days later his brother’s cellmate pulled the gun on the sheriff and they both escaped.

The evidence relied upon to prove the allegations of the indictment show a violation of Art. 326 P.C. which provides:

“Whoever shall convey or cause to be conveyed into any jail any disguise, instrument, arms, or any other thing useful to aid any prisoner in escaping, with intent to facilitate the escape of a prisoner lawfully detained in such jail on an accusation of felony, or shall in any other manner calculated to effect the object, aid in the escape of a prisoner legally confined in jail, shall be imprisoned in the penitentiary not less than two (2) nor more than five (5) years. This Article shall also apply to anyone aiding one who has been convicted, and is being lawfully detained in jail, to escape from jail.”

Art. 329 P.C., which relates to aiding one charged with a felony to escape from the custody of an officer by whom he is held in custody, and Art. 326 which relates to aiding one charged with a felony to escape from jail define two separate and distinct offenses, with different punishment provided. Mason v. State, 7 Tex.App. 623; 2 Branch’s Ann.P.C. 360, Sec. 911.

The variance between the allegations of the indictment and the proof renders the evidence insufficient to sustain the conviction for violation of Art. 329 P.C.

I respectfully dissent to the affirmance of the conviction.


text:
    Mona Sue DAGLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 38417.
    Court of Criminal Appeals of Texas.
    June 23, 1965.
    Rehearing Denied Oct. 20, 1965.

      John J. Browne, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Charles E. Bonney and James I. Smith, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted as a second offender under the Uniform Narcotic Drug Act, Art. 725b, Vernon’s Ann.P.C., for the unlawful possession of narcotic paraphernalia and her punishment was assessed at ten years in the penitentiary.

The state’s evidence shows that on March 3, 1960, Officers Hightower and Chavez observed the appellant seated in an automobile with another female and her (appellant’s) husband in the 600 block of Hemp-hill Street in the city of Houston. When the officers went to the automobile, appellant was sitting in the right front seat and had a spoon in her left hand and an eye dropper and needle, referred to as a “joint,” in her right hand. She proceeded to drop the spoon on the back floorboard and mash the rubber portion of the eye dropper so as to cause fluid to pass through the needle onto the floorboard. After Officer Chavez opened the car door, appellant gave him the eye dropper and needle and he picked up the spoon from the floorboard. The spoon, needle, and eye dropper were then taken to the police station, where they were placed in an envelope and properly identified. The following day Officer Hightower carried the envelope and contents (state’s exhibit #3) to the city laboratory and delivered them to Chemist Metz.

At the time of trial, Chemist Metz was no longer in the employ of the city and was a non-resident of the state. Chemist and toxicologist Floyd McDonald, who was in charge of the chemical laboratory in Houston, upon being called as a witness, identified, by referring to the laboratory records, state’s exhibit #3 as the eye dropper, needle, and spoon delivered to the laboratory by Officer Hightower. Chemist McDonald testified that from the records made in the laboratory under his supervision, it was shown that Chemist Metz made a chemical analysis of state’s exhibit #3 which showed that the spoon contained 2.25 milligrams of heroin and the eye dropper and needle contained 1.93 milligrams of heroin.

It was shown by the chemist’s testimony and also that of Officers Hightower and Chavez that the spoon, eye dropper, and needle in appellant’s possession on the day in question were narcotic paraphernalia adapted for the purpose of subcutaneous injections of narcotic drugs into a human being.

Proof was made, by the introduction in evidence of certain authenticated prison records and the testimony of a handwriting expert, that on March 2, 1954, the appellant had been finally convicted in Criminal District Court No. 3 of Harris County of the offense of unlawfully possessing heroin.

Appellant did not testify or call any witnesses in her behalf other than Officer Hightower, whom she recalled for further cross-examination.

We find the evidence sufficient to support the conviction, and shall discuss the contentions urged by appéllant on her appeal. She first contends that the judgment of conviction is void because it was obtained in violation of her right to a speedy trial, guaranteed by the Sixth Amendment to the Constitution of the United States and by Art. 1, Sec. 10, of Vernon’s Ann.Constitution of Texas, and for the further reason that she was denied the assistance of counsel within the meaning of the Sixth Amendment to the Federal Constitution.

Appellant filed in the cause what was designated as a motion to quash and dismiss the indictment and a plea to the court’s jurisdiction, which alleged as grounds therefor that she had been denied her constitutional right to a speedy trial.

At the hearing on the motion it was shown that an indictment was originally returned against appellant in Cause No. 92331 on July 20, 1960, for the offense of unlawful possession of heroin, alleged to have been committed on March 3, 1960. The indictment contained allegations of prior convictions for enhancement under Art. 63, V.A.P.C.

On September 21, 1960, the case was set for trial and was passed by agreement of the parties. At that time, appellant was represented by Attorney Gabriel Nahas. On September 1, 1961, appellant made bond in the case and in two other cases then pending against her. Thereafter, on February 2, 1962, she was again placed in jail by virtue of a warrant issued at the request of one of her sureties, since which date she has remained incarcerated. On May 9, 1962, the case was again set for trial and at that time passed, on appellant’s motion and request for the appointment of counsel. At such time, an attorney was appointed by the court to represent appellant. In September, 1962, appellant retained her present counsel, John J. Browne. On November 20, 1962, the case was called for trial. Appellant and her counsel appeared, both sides announced ready, and selection of the jury began.

During the voir dire examination of the jury panel and before a jury was selected, a motion was made by the state to withdraw its announcement of ready for trial. Over appellant’s objection, the motion was by the court granted. At such time, the assistant district attorney stated that he had learned after announcing ready for trial that certain material witnesses for the state were not present and, further, that he intended to seek a new indictment in the case because he felt the pending indictment was insufficient. It was further stated by state’s counsel that the case would be re-set for trial no later than January 1, 1963, on the new indictment.

On November 26, 1962, the present indictment was returned against appellant in Cause No. 102982 and the case was tried on March 21, 1963, resulting in appellant’s conviction.

Under the record, we find no error in the court’s refusal to grant appellant’s motion to dismiss the indictment on the grounds alleged.

The court’s action in permitting the state to withdraw its announcement of ready for trial at the setting of the case on November 20, 1962, does not show an abuse of discretion. No request was made by appellant for an earlier setting of the case. The November 20th setting was in response to appellant’s request, made a month earlier, for a setting at the earliest practical date. Had she wanted an earlier trial in either case it was incumbent upon her to request or demand the same and, if refused, to file petition for writ of mandamus. Moreau v. Bond, 114 Tex. 468, 271 S.W. 379; Goss v. State, 161 Tex.Cr.R. 37, 274 S.W.2d 697; White v. State, 166 Tex.Cr.R. 267, 312 S.W.2d 639; Ex parte Ortega, Tex.Cr.App., 372 S.W.2d 695.

In refusing to submit appellant’s plea to the jurisdiction to the jury under the authority of Art. 510, Vernon’s Ann. C.C.P., the court did not err. In the early case of Venters v. State, 18 Tex.App. 198, a special plea alleging that the accused had been deprived of his constitutional rights to a speedy trial was held to be one not authorized by law.

The contention that appellant was denied the assistance of counsel is not supported by the record and is overruled.

An examination of the record reflects that since the return of the original indictment against appellant on July 20, 1960, she has been represented by three different attorneys, two of her own selection and one by appointment of the court. When the case was first called for trial on September 21, 1960, she was represented by an attorney of her own selection, Gabriel Nahas. While the record does not show when Attorney Nahas’s employment was terminated, it is shown by certificate of the trial court that when the case was called for trial on May 9, 1962, it was passed, on motion of appellant because she had no attorney, “at which time the Court appointed an Attorney, a Lawyer in good standing in Harris County, Texas, to represent her.” Thereafter, in the month of September, appellant retained her present lawyer, John J. Browne, who represented her at the trial and represents her on this appeal.

Appellant next insists that she was denied her constitutional right of confrontation and cross-examination guaranteed by the Sixth Amendment to the United States Constitution and Art. 1, Sec. 10, of the Constitution of this state by the court’s action in permitting Chemist McDonald to testify as to the results of the chemical analysis made by Chemist Metz upon the items delivered to the laboratory by the arresting officer. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, by the Supreme Court of the United States, is relied upon in support of her contention.

Under the statutes of this state and decisions of this court, Chemist McDonald was authorized to testify from the official records of the department as to the results of the tests made by Chemist Metz under his supervision and control. Articles 3731a and 3737e, Vernon’s Ann.Civ.St.; Leonard v. State, 161 Tex.Cr.R. 470, 278 S.W.2d 313; Trujillo v. State, 166 Tex.Cr.R. 405, 313 S.W.2d 871; McCarty v. State, 167 Tex.Cr.R. 164, 319 S.W.2d 338; Mills v. State, 169 Tex.Cr.R. 428, 334 S.W.2d 807.

Pointer v. State of Texas, supra, did not, as here, involve the testimony of a witness given at the trial but, rather, involved the reproduction of testimony of a witness given at an examining trial and is not here applicable.

Estes v. State, 162 Tex.Cr.R. 122, 283 S.W.2d 52, cited by appellant, is not here controlling, because in that case instruments from the Department of Public Safety which were hearsay were admitted in evidence over objection and none of the parties whose names were signed to the instruments appeared as witnesses. Here, Chemist McDonald was only permitted to testify from the laboratory records made under his supervision. The report made by Chemist Metz of his analysis was not introduced in evidence by the state but was introduced by the appellant.

Complaint is made to the court’s action in denying appellant’s motion, made before trial, requesting that the state deliver the items seized by the officers to appellant for her inspection and analysis by a chemist of her selection. Such refusal, it is contended, violated appellant’s rights to a fair trial, as guaranteed under the due process clause of the Fourteenth Amendment to the Constitution of the United States.

With such contention we do not agree. We do not have in this state any statutory provision for pre-trial inspection of evidence which the state may have in its possession. It has been the holding of this court that an accused is not entitled to a pretrial inspection of his confession or other exhibits in possession of the state. See: Freeman v. State, 166 Tex.Cr.R. 626, 317 S.W.2d 726, and cases there cited. It should be observed, also, that had the paraphernalia been ordered delivered to appellant for examination it would have been of no benefit to her, as Chemist McDonald’s testimony-shows that after the analysis was completed by Chemist Metz there was no trace of heroin remaining on the items.

Appellant insists that the evidence is insufficient to sustain the enhancement portion of the indictment because the authenticated prison records were improperly admitted in evidence over the objection that they were not copies of the original records but of copies in the files of the Department of Corrections.

Recently, in Warden v. State, Tex.Cr.App., 366 S.W.2d 786, a similar contention was overruled, in holding admissible certain authenticated prison records offered by the state to prove the prior alleged conviction.

Appellant’s remaining complaint is to the court’s refusal to grant a mistrial when Deputy Sheriff E. G. Knowles, while testifying as a fingerprint expert and being examined on voir dire with reference to whether appellant’s prints were put on state’s exhibit #2, stated:

“Yes, sir, I know I was there. We don’t put it — I have several cards like that, but only the ones that I handle show my name on it, or on them.”

The record reflects that appellant’s objection to the witness’s answer was sustained and the jury instructed not to consider the same. We perceive no reversible error in the refusal to grant a mistrial.

The judgment is affirmed.

Opinion approved by the court.


text:
    Jo Ann COLEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 38382.
    Court of Criminal Appeals of Texas.
    June 23, 1965.
    Rehearing Denied Oct. 20, 1965.
    John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Allen Stilley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of heroin; the punishment, ten years.

Officers Hightower and Tissue went to a multi-unit apartment house in response to a telephone call from the manager. Upon their arrival, the manager showed them several objects which included a small box containing a cellophane package and fifteen capsules of brownish powder, fifteen other capsules with only traces of a brownish powder in them, and an eye dropper and a needle attached to the box with adhesive tape. After examining the contents of the capsules and the cellophane wrapper Officer Hightower expressed the opinion that they contained heroin. The officers and the manager then taped the package underneath a table in the washateria which was used for folding clothes so that it was necessary to look up underneath the table to see it. The washateria was open to the public in a separate building nearby, and the owner of the package was unknown to the officers. The officers secluded themselves in a, vacant apartment within view of and about fifteen yards from the washa-teria. While they were watching, the appellant, carrying no clothes for washing, approached and entered the washateria, her blouse tucked into the waistband of her slacks. The officers saw her go to the table but not all of her body was visible to them while she was there. In about thirty seconds the appellant came out of the washateria, walking toward the officers. As she did so, the officers left the apartment. At such time they could see a portion of the package in the waistband of her slacks, her blouse still being tucked in except for the portion partially covering the package. When in speaking distance Officer Tissue said to the appellant, “give me the stuff”, and she reached in her waistband and handed him the package. The table was inspected at this time and the package which had been under it was missing. The package and its contents were identified by the officers as being the one they had taped under the table. The package and contents received from the appellant were marked for identification.

An analysis by a chemist of the cellophane paper and the capsules in the package revealed that they contained heroin.

The appellant testified that she occupied one of the apartments and was at the washa-teria at the time and place in question; that she had gone to the washateria to remove some clothes which she had put into a washing machine earlier and to change them to a dryer; that as she walked into the washateria she saw on the floor a package completely wrapped with tape, and, being curious and forgetting about the clothes, placed it in her waistband but did not try to conceal it; that she then left the washateria for the purpose of returning to her apartment to find out what was in the package, and that after going a short distance, she was stopped by the officers.

In rebuttal for the state, Officer Tissue testified that at the time the appellant entered the washateria all of the doors of all washing machines and dryers were open, and there were no clothes in any of them.

The appellant relies for reversal solely upon the refusal of the court to charge the jury on entrapment.

The evidence does not show that the criminal design originated in the mind of the officers and that they induced the appellant to act in a manner in which she would not have otherwise acted except for such inducement, even though they may have furnished the opportunity for her to commit the offense. No issue of entrapment was raised by the evidence. Vela v. State, Tex.Cr.App., 373 S.W.2d 505.

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: BARROW, Justice.

text:
    Mary Babicki PODGOURSKY, Individually and as Independent Executrix of the Estate of Ivan N. Podgoursky, Deceased, Appellant, v. Adele FROST et vir, Appellees.
    No. 14397.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 1, 1965.
    Rehearing Denied Oct. 6, 1965.

      Friloux, Eddington & Smith, Houston, for appellant.
    Trueheart, McMillan & Russell, San Antonio, for appellees.
   BARROW, Justice.

Mary Babicki Podgoursky, individually and as independent executrix of the estate of Ivan N. Podgoursky, appeals from a partial summary judgment entered in the 150th Judicial District Court in a controversy over collection of a note executed by deceased to appellee Adele Frost. All issues which were not determined by this judgment were severed by the trial court.

This judgment was preceded by a very complex procedural background set forth in a 298-page transcript, involving five suits filed in the Bexar County District Courts. We will set forth only the background necessary to dispose of the assignments of error asserted by appellant and appellees.

Ivan N. Podgoursky died on April 21, 1962, and his will of March 8, 1962, was filed for probate by appellant, his surviving widow, who was appointed independent executrix under this will and was the principal beneficiary. This will was contested by a prior wife of deceased. Pending the final determination of this will contest, Frank J. Baskin, Esq., was appointed temporary administrator of this estate on May 15, 1962.

On September 26, 1962, appellees, Adele Frost and husband, Jack Frost, filed suit No. 147,724, against Baskin in his capacity as temporary administrator, seeking judgment against this estate on a promissory note signed by deceased, in the principal sum of $47,800, together with foreclosure of an oral mortgage on nine paintings. A general denial was filed for Baskin by his attorney, Pat Camp, Esq., who had been employed by order of the probate court on August 15, 1962. On November 13, 1962, judgment was entered in this suit, establishing appellees’ claim and lien and directing certification of same to the' Probate Court as a matured secured claim. No appeal was taken and the judgment was entered on the Probate Court Claim Docket on November 13, 1962.

On October 12, 1962, judgment was entered in the will contest admitting the will to probate and appointing appellant as independent executrix. Contestant excepted and gave notice of appeal, but did not perfect same. On November 14, 1962, appellant executed her oath as executrix. On August 8, 1963, appellees filed suit No. 155,759 against appellant, individually and as independent executrix, seeking foreclosure on the nine paintings in accordance with the judgment in No. 147,724, and also seeking to set aside conveyances of other paintings to appellant allegedly in fraud of creditors. (This latter claim was severed by the partial summary judgment involved herein). On January 30, 1964, a partial summary judgment was entered authorizing foreclosure sale of the nine paintings and by agreement of the parties same were sold through the Chicago Art Gallery.

On May 28, 1964, appellant filed suits Nos. 161,961 and 161,962, against appellees as well as Baskin and the surety on his bond. (The claims against Baskin and his surety were severed and will not be further discussed.) In No. 161,961 appellant sought to set aside the judgment in No. 147,724, as being void on its face and a nullity, as the temporary administrator was allegedly without authority to defend this suit. In No. 161,962 appellant sought recovery of paintings and monies in the possession of appellees which allegedly belonged to the estate. These two suits were consolidated with No. 155,759.

By amended pleadings, appellant sought to set aside the judgment in No. 147,724 as void, because of appellees’ failure to file the claim in the manner required by the Probate Code V.A.T.S. She also asserted by way of bill of review that the judgment was secured through fraud because of false statements of appellees in support of their claim. All parties filed motions for summary judgment. On November 13, 1964, a partial summary judgment was entered upholding appellees’ judgment of November 13, 1962, in No. 147,724, authorizing foreclosure sale, and dismissing with prejudice appellant’s collateral attack and bill of review against this judgment. Appellant has appealed from this judgment.

Appellant asserts the following assignments of error: the trial court did not have jurisdiction over the estate on November 13, 1962, when the judgment in No. 147,724 was entered; appellees’ claim was not legally filed under provisions of the Probate Code; appellant alleged a valid cause of action by way of a statutory bill of review; the temporary administrator did not have authority to engage in litigation, and the district court was without jurisdiction to order the foreclosure sale and therefore the judicial sale was wrongful. Appellant recognizes that other than the cause of action alleged in her bill of review, she is making a collateral attack upon a final judgment, and she must show that the judgment in No. 147,724 is void as distinguished from voidable. See Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325.

It is seen that the judgment in Cause No. 1-47,724 is based upon service had upon Baskin in his capacity as temporary administrator, an answer filed in his behalf in this capacity, and a non-jury trial had at a time when he appeared on behalf of the estate. Sec. 132(a) of the Texas Probate Code authorizes the appointment of a temporary administrator pending a will contest with such limited powers as the circumstances of the case require. Sec. 132(b) specifically authorizes the probate court to confer upon the temporary administrator all the power and authority of a permanent administrator with respect to claims against the estate. This latter section was added with the adoption of the Probate Code in 1955 and removes all uncertainty about the power of a court to authorize a temporary administrator to act upon claims pending determination of a will contest.

Sec. 133 provides that any acts performed by the temporary administrator that are not expressly authorized shall be void. It has been held that the temporary administrator shall have and exercise only such powers and duties as are conferred upon him by the probate court and any acts performed by him that are not so expressly authorized shall be void. Ex parte Lindley, 163 Tex. 301, 354 S.W.2d 364; Tolivar v. Lombardo, Tex.Civ.App., 88 S.W.2d 733, no wr. hist. Therefore, we must look to the orders of the probate court to determine if Baskin had the power to defend this suit on behalf of the estate.

The order of appointment expressly authorized Baskin to receive claims against the estate and to approve or disapprove said claims, but not to pay them. Later the court authorized employment of Pat Camp, Esq., to defend another specific suit, as well as any other matters before the court, and the attorney was given full power and authority to perform all acts necessary in the protection of the temporary administrator and the estate.

It is our opinion that Baskin was authorized under these orders to file an answer after he was served with citation and to protect the estate in this suit filed by appellees. The power to disapprove a claim would necessarily include the power to defend a suit brought under the Probate Code to establish the claim following disapproval by the temporary administrator. In Ravkind v. Bergman, Tex.Civ.App., 342 S.W.2d 61, wr. ref., n. r. e., it was said: “It has been held that it is a necessary inference from the power granted a temporary administratrix to collect claims due the estate that she is authorized to file suit when such action is required to enforce the collection and this without further or more specific orders of the court.” In Barfield v. Miller, Tex.Civ.App., 70 S.W.2d 632, wr. dism., it was held that a temporary administratrix was authorized to file an answer under her power to preserve the estate after being served with citation. See also, Thompson v. Southwestern Drug Corp., Tex.Civ.App., 129 S.W.2d 350, no wr. hist.

Appellant further urges that, assuming the temporary administrator was authorized to defend this suit, all his power and authority terminated on October 12, 1962, when the contest was determined and the will appointing her independent executrix was admitted to probate. Appellant says that it is immaterial that she did not actually qualify as independent executrix until November 14, 1962. She, therefore, asserts that the estate was not properly represented before the court when the judgment in No. 147,724 was rendered on November 13, 1962.

In Cocke v. Smith, 142 Tex. 396, 179 S.W.2d 954, the Supreme Court held that an independent executor named in a will is qualified to act independently of the probate court from the time the will appointing him is admitted to probate and that taking the oath as an independent executor is not a necessary prerequisite to the possession and exercise of the duties and responsibilities of his office. See also Melton v. Hahnel, Tex.Civ.App., 347 S.W.2d 350, wr. ref., n. r. e. This rule contemplates the termination of litigation in that the power of the temporary administrator would necessarily continue until final termination of the will contest. Knipp v. Kutchinsky, 138 Tex. 550, 160 S.W.2d 518. Here the will contest was finally terminated prior to entry of the final judgment.

Rule 153, Texas Rules of Civil Procedure, provides that where an administrator who is party to a suit dies or ceases to be such administrator, the suit may be continued against the person succeeding him in the administration, or by or against the heirs, or the suit may be discontinued. Rule 152, T.R.C.P., provides for issuance of scire facias upon suggestion of death. It is urged by appellant that upon the will being admitted to probate appellees should have the clerk issue scire facias for appellant and serve same on her. We agree this is the proper procedure to follow where an administrator dies or ceases to be such.

The question before us under this collateral attack is whether the failure to do so rendered the judgment void for lack of jurisdiction over the estate of Ivan N. Pod-goursky. It is seen that the suit was properly brought against Baskin as temporary administrator, and by service of citation upon him at that time the court acquired jurisdiction over the estate. It is our opinion that the admission of the will to probate and appointment of appellant as independent executrix did not deprive the court of the jurisdiction which it then had over the estate.

Under a similar factual situation presented in Joyce v. Booth, Tex.Civ.App., 76 S.W.2d 227, no wr. hist., it was held that if the suit was properly brought against the temporary administratrix, jurisdiction attached at that time and it could not be defeated by the subsequent appointment of the executor who takes the estate as he finds it. In Garcia v. Jones, Tex.Civ.App., 155 S.W.2d 671, wr. ref., want of merit, this Court held that a judgment rendered against a defendant subsequent to his death was not void where he was served prior to his death. Under the rule established in these cases, the district court having acquired jurisdiction of the estate by proper service upon the temporary administrator, did not lose same by the subsequent appointment of appellant as independent executrix.

Appellant also asserts that the judgment in Cause No. 147,724 is void because the record thereof does not show on its face that appellees’ claim was properly filed, presented and rejected as required by Sections 301, 308-310, 313 and 314, of the Texas Probate Code. She points out that the record does not show when the claim was filed with the temporary administrator or in what form, that is, whether the original or a copy of same was filed, and that there is no showing when the claim was rejected by Baskin. In the motion for summary judgment filed herein there are affidavits of the temporary administrator, appellant, appellees, and the attorney for appellees, relative to these matters. It is our opinion that these facts, some of which are disputed, are immaterial in this collateral attack upon the judgment.

Section 310 of the Probate Code provides that where a representative of an estate fails to allow or reject a claim within thirty days after its presentment, his failure shall constitute a rejection of the claim. Under Sec. 313, suit must be filed within 90 days after such rejection. Appellees alleged in their petition that their claim had been duly presented to the temporary administrator in accordance with the requirements of the Texas Probate Code and that he had failed to act on said claim for over 30 days, therefore, said claim was disallowed under the Probate Code. Appellees further alleged that 90 days had not elapsed since the same was disallowed by operation bylaw.

It is seen that appellees alleged all the jurisdiction requirements of the Probate Code. Russell v. Dobbs, 163 Tex. 282, 354 S.W.2d 373; Thrasher v. Novy, Tex.Civ.App., 138 S.W.2d 124, no wr. hist. In the absence of special exceptions, these general allegations were sufficient to give the court jurisdiction to hear this suit.

The judgment establishing appel-lees’ claim and first lien mortgage includes a recitation that it was entered after the trial court heard the pleadings and the evidence. It will be presumed on this collateral attack that the trial court found the necessary jurisdictional facts in accordance with appellees’ allegations and the judgment of the court. Templeton v. Ferguson, 89 Tex. 47, 33 S.W. 329; Crawford v. McDonald, supra. Appellant’s point complaining of the manner of filing the claim is overruled.

Appellant complains of the dismissal with prejudice of her bill of review. Her allegations are insufficient to support an equitable bill of review. In Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, the Supreme Court held the following requirements are necessary to set aside a final judgment by an equitable bill of review: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.

Appellant’s allegations do not show that she was prevented from making her defense to the appellees’ suit by their fraud or wrongful act. No meritorious defense is asserted other than offsets allegedly due against the note. Her allegations that appellees’ testimony that there was no valid offset was false and was perjured would constitute “intrinsic fraud” and would not entitle her to an equitable bill of review. Alexander v. Hagedorn, supra. Further, there is no explanation, reason or excuse alleged for appellant’s delay in not seeking to set aside the judgment for seventeen months following the rendition of same. Moore v. Mathis, Tex.Civ.App., 369 S.W.2d 450, wr. ref., n. r. e.; Garcia v. Jones, Tex.Civ.App., 155 S.W.2d 671, wr. ref., want of merit.

Appellant urges, however, that the requirements of an equitable bill of review were not necessary as she brought same as a statutory bill of review as authorized by Sec. 31 of the Texas Probate Code. See Schoenhals v. Schoenhals, Tex.Civ.App., 366 S.W.2d 594, wr. ref., n. r. e. It is seen, however, that this remedy is expressly limited to review of probate proceedings. The judgment in Cause No. 147,-724 was rendered in a suit based on a claim which had been rejected by the temporary administrator. This was not a probate proceeding in that the probate court has no jurisdiction to pass on such a rejected claim. Christian v. Pace, Tex.Civ.App., 371 S.W.2d 399, no wr. hist.; Poole v. Rutherford, Tex.Civ.App., 199 S.W.2d 665, wr. ref., n. r. e. Appellant did not assert a statutory bill of review and since her petition does not assert grounds for an equitable bill of review, the trial court did not err in dismissing same.

Appellant urges that the partial summary judgment is erroneous in overruling her plea in abatement to the jurisdiction of the court to hear appellees’ suit seeking foreclosure of their lien and that the sale under this foreclosure was erroneous and entitled her to recover damages. She asserts that the probate court has exclusive jurisdiction over estates under administration. This contention overlooks the fact that at the time the suit was filed, the estate was being administered by appellant as independent executrix. In Rowland v. Moore, 141 Tex. 469, 174 S.W.2d 248, the Supreme Court held that so long as an estate remains in the hands and under the control of the independent executor the probate court has no jurisdiction to approve a claim against the estate. “The district court or county court, and not the probate court, has jurisdiction of all claims against the estate, as in any other cause of action not regulated by a special statute.” See also, State v. Traylor, 374 S.W.2d 203 (Tex.1963); Basham v. Smith, 149 Tex. 279, 233 S.W.2d 297. The district court had jurisdiction of the suit filed herein.

Appellees present cross-points complaining of the trial court’s refusal to set aside the conveyance of three paintings by deceased to appellant as being in fraud of creditors. This claim was severed by the trial court. It is our opinion that appel-lees’ right to same cannot be established as a matter of law from the record before us. We therefore overrule appellees’ cross-points without prejudice to the hearing on the merits of this severed claim.

The judgment of the trial court is affirmed.