text:
    P. L. GARRISON, Petitioner, v. BEXAR-MEDINA-ATASCOSA COUNTIES WATER IMPROVEMENT DISTRICT NO. 1, Respondent.
    No. A-11595.
    Supreme Court of Texas.
    Oct. 5, 1966.
    Rehearing Denied Nov. 23, 1966.

      Elbert Hooper, Austin, for petitioner.
    Briscoe & Corley, Devine, Graves, Dougherty, Gee & Hearon, Austin, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

The Court of Civil Appeals has held that Article 7500a, Vernon’s Ann.Tex.Civ.Stat., has no application to a stream which is navigable under the provisions of Article 5302. 404 S.W.2d 376. We approve this holding, and the application for writ of error is Refused, No Reversible Error.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    A. T. ROBERTS et al., Petitioners, v. O. A. ROBERTS et al., Respondents.
    No. A-11630.
    Supreme Court of Texas.
    Oct. 26, 1966.
    Wynne & Wynne, Wills Point, for petitioners.
    Enoch G. Fletcher, Grand Saline, for respondents.
   PER CURIAM.

In a proceeding to set aside an order admitting a holographic will to probate and to probate a later holographic will not produced in court, the court of civil appeals has held that heirs of the decedent are not precluded by Article 3716, Vernon’s Texas Civil Statutes, the Dead Man’s Statute, from testifying that after the death of the testator they saw and read the later instrument and that it was in the handwriting of the deceased; and further, that neither were they precluded by the statute from testifying to the contents of the instrument. Tex.Civ.App., 405 S.W.2d 211. We approve those holdings.

The court, of civil appeals made other holdings which are not properly before us for review. Accordingly, writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.


author: GREENHILL, Justice.

text:
    URBAN RENEWAL AGENCY OF the CITY OF LUBBOCK, Petitioner, v. D. P. TRAMMEL et al., Respondents.
    No. A-11389.
    Supreme Court of Texas.
    Oct. 25, 1966.
    Rehearing Denied Nov. 23, 1966.

      Brock, Wright, Waters & Galey, William T. Kirk, Jr., Lubbock, for petitioner.
    Nelson, McCleskey & Harriger, R. Rex Aycock, William J. Gillespie, Lawrence Fischmann, Lubbock, for respondents.
   GREENHILL, Justice.

This is a condemnation case. The main question is whether there is evidence to support the jury’s finding as to the market value of the property taken. Also involved is the wording of the special issues on valuation submitted to the jury. This latter problem arises because one of the buildings upon the land was subject to a lease for a term of years.

D. P. Trammel and wife owned business property in Lubbock. A portion of the property was leased to Harold Deering for a grocery store. The property was condemned by the Urban Renewal Agency, and special commissioners made an award of $24,500 for the property. Trammel appealed to the county court where the jury found the market value of the property as a whole, including Deering’s lease, to be $48,000. This amount was divided so that Trammel recovered $40,000 and Deering $8,000. The Court of Civil Appeals sitting at Amarillo affirmed. 399 S.W.2d 852.

The property of Trammel which was taken consisted of two town lots upon which there were five buildings. One was a concrete building occupied by Deering as a grocery. We shall treat Deering’s lease as being one for 10 years. The second building was occupied as a pool hall. A third building housed a barber shop. There were also two small residential frame buildings on the property. The only leasehold involved is that of Deering.

In condemnation proceedings where the property sought is subject to a lease, the judge or jury first determines the market value of the entire property as though it belonged to one person. Then the fact finder apportions the market value as between the lessee and the owner of the fee. City of Waco v. Messer, 49 S.W.2d 822 (Tex.Civ.App.1932), aff’d in part, rev’d in part, 124 Tex. 417, 78 S.W.2d 169 (1935) ; Aronoff v. City of Dallas, 316 S.W.2d 302 (Tex.Civ.App. 1958, writ ref’d n. r. e.) ; Reeves v. City of Dallas, 195 S.W.2d 575 (Tex.Civ.App. 1946, writ ref’d n. r. e.) ; In re Delancey St., 120 App.Div. 700, 105 N.Y.S. 779 (1907); Comment, A Survey of Landlord and Tenant in Eminent Domain, 3 Willamette L.J. 39, 46 (1964).

There were several valuation witnesses for the Urban Renewal Agency. Their testimony was that the value of the entire property taken was in the area of $23,000. There were four witnesses for Trammel. None of them attempted to testify as to the market value of the land and buildings taken on the basis of comparable sales because, apparently, there had been none in the area. These witnesses used two other methods: (1) the income method and (2) the value of the land plus a costless-depreciation of the improvements. This is also referred to as a replacement-cost method.

As stated, the jury found the value of the entire premises taken, including the value of Deering’s lease, to be $48,000. No witness testified to a value of the property taken in excess of $43,196.30. Witnesses for Trammel estimated the market value at between $40,000 and $43,196.30. The question, therefore, is whether there is evidence to support the $48,000 jury finding. We hold that there is not.

The problem is one of interpreting the evidence of Trammel’s witnesses. There is evidence that the Deering leasehold was advantageous to Deering and that it had a value of $8,000. There is evidence from Trammel’s witnesses as to valuations for the land and improvements at between $40,-000 and roughly $43,000. It is Trammel’s contention that his witnesses were not testifying to the value of the entire property taken, but that they were testifying only about the lessor’s interest! No witness expressly stated that he was valuing only the lessor’s reversionary interest. Viewing the testimony as a whole and reading it in context, we conclude that the witnesses were testifying to the value of the entire property, i. e., to the reasonable market value of the land and the improvements thereon. We shall discuss the testimony of each of the four witnesses. While there are two volumes of testimony (all of which we have considered), the testimony set out below includes, at least in substance, a summary of the evidence referred to in Trammel’s brief as supporting his assertions.

T. C. Stinson was asked if he had had occasion “to appraise some property at 19th and Ash belonging to D. P. (Jack) Trammel.” He answered, “Yes, sir.” This is construed by Trammel to mean that Stinson was employed to value only Trammel’s interest in the property, exclusive of the lessee’s interest. We disagree. We regard the testimony and the answer as simply being introductory to Stinson’s testimony. Stinson further testified that he made the appraisal for Trammel and not for the lessee. We construe that to mean that he made the appraisal at the request of Trammel and not at the request of the lessee and that he was paid by Trammel alone. Following that statement he was asked:

“Q. * * * and you made your appraisal, — you have undertaken to determine the entire fee simple value, what the entire property would sell for.
“A. That’s right.
“Q. And all ownerships in that property?
“A. Well, I just appraised for the buildings and the land.
“Q. And what it would sell for on the market?
“A. Right.
“Q. Giving the purchaser a good clear title to the property?
“A. That’s right.”

The contention is made that since he “just appraised for the building and the land,” he was appraising only the lessor’s interest. We do not so construe it. Using the value of the land and estimating the cost of the improvements less depreciation, Stinson arrived at a value of $42,880. This, of course, included all of the property taken.

Using the income approach, Stinson reached a value of $43,196. In arriving at this value, he used the rental received by Trammel. It is argued that since there was evidence that a portion of Trammel’s property which was leased to Deering was leased upon terms favorable to the lessee, and the actual rental received by Trammel was used in arriving at “market value,” the witness must have been talking only about Trammel’s reversionary interest. The witness did not attempt to state any conclusion as to what he regarded as market value of the property if it had been leased for a higher figure.

Trammel’s witness Scott likewise began by saying he had been requested to appraise “some property at 19th and Ash here in the City of Lubbock.” Using the income approach, Scott testified to a market value of $41,750. Using the replacement-cost method, he testified to a value of $42,937. On cross examination Scott testified:

“Q. John, your appraisal is on the total market value of the property, what it would sell for between a willing buyer and a willing seller, is that right ?
“A. That’s right.
“Q. And that includes all interest?
“A. Well, it — it’s the market value between who I represent, the owner and the Urban Renewal Agency, that’s their differences.
“Q. Well, I’m talking about a willing seller, your income approach is your opinion as to what the property would sell for on the market?
“A. Yes.
“Q. And that would include the full title ?
“A. Yes.”

Trammel’s witness L. D. Whiteley was asked by Trammel’s counsel, “L. D., did I ask you to appraise some property at 19th and Ash in the City of Lubbock?” He answered, “Yes.” As above, it is contended that there had been a request to appraise only Trammel’s reversionary interest in the grocery store plus his ownership of the remainder of the property.

Whiteley testified that he used “recognized measures of appraising commercial property for market value.” He used the willing-buyer, willing-seller approach. In ascertaining market value by the “income approach,” he said it would be worth $43,-196 if it were in “tip-top” condition. But it needed some repairs; so he thought the reasonable market value was $40,000. Whitely estimated the value of the land at $28,000. He estimated $14,108 as the cost of replacing the buildings and thus arrived at a total value of $42,108. But he “took a little off” for painting and repairs and arrived at the reasonable market value estimate of $40,000.

The fourth witness, Billy Meeks, also said he had been asked to “appraise for market value Mr. Trammel’s property at 19th and Ash.” On cross examination, his testimony was:

“Q. Now, in regard to arriving at market value of the property, I believe you came up with the opinion that $41,000.00 was the fair market value of the property, what it would sell for, the complete title?
“A. Yes.”

Having reviewed all the testimony including that set out above, we conclude that there is no evidence to support the jury’s finding that the market value of the land and improvements as a whole, including the interests of Trammel and Deering, was $48,000. Gulf, C. & S. F. R. R. Co. v. Fink, 18 S.W. 492 (Tex. Comm.App.1892, opinion adopted); State v. Nesom, 395 S.W.2d 424 (Tex.Civ.App. 1965, writ ref’d n. r. e.).

There is evidence in the record to support the value assigned to Deering’s leasehold interest, and we are urged to sever his interest and affirm the judgment as to him. The lessee’s interest, however, must be apportioned out of the total market value of the whole property. Since the market value of the whole property must be redetermined at a new trial, and since this redetermination could result in different values being assigned to the two interests in question, we cannot, in the interest of justice, affirm the judgments of the trial court and the Court of Civil Appeals as to Deering.

The Urban Renewal Agency also complains of the special issues used in submitting this case to the jury, contending that the issues allowed a double recovery for the value of Deering’s leasehold interest. While the issues used may not technically be incorrect, they are so phrased as to be likely to mislead the jury, as they did in this case; and in the light of a new trial, we' direct the submission of the issues in a different form.

The trial court sent the case to the jury on three special issues. In the first issue the court asked the jury to determine from a preponderance of the evidence what the market value of the land and improvements as a whole was at the date of the trial, “including the interest of the owner, D. P. Trammel, together with the lessee’s leasehold interest in said land and improvements. * * * ” The second issue asked the jury to apportion to Trammel the market value of his interest in the land and improvements out of the amount found in the first special issue. The third issue requested the jury to apportion to Deering the market value of his leasehold estate out of the total market value found in the first issue. Such a submission tends to allow the jury to answer the last two issues first, then adding those two amounts to answer the first issue. It is our view that the trial court should submit two issues:

First the court should ask the jury to determine the cash market value of the property taken, including the improvements thereon. In connection with this issue, the jury should be given the usual definition of cash market value, the cash price which the property would bring if offered for sale by one who desired to sell but was under no obligation to sell, and was bought by one who desired to buy but was under no necessity to buy.

The second issue should inquire as to the cash market value, if any, of the lessee’s leasehold interest, with a suitable definition of “lessee’s leasehold interest” and the cash market value thereof. The court can determine the value of the owner’s (Trammel’s) interest by subtracting the answer to the second issue from the answer to the first.

The Urban Renewal Agency complains of the admission in evidence of testimony by its director, Orville Alderson, that it urged the city not to grant Trammel a building permit to repair his property after the Agency determined to take the property. In our opinion the Agency invited this testimony by introducing evidence that the property was in a state of disrepair and by inquiring of Trammel why he had been prevented from making repairs. Under these circumstances the admission of Alderson’s testimony was not error. The question as to the admissibility of this evidence as an original proposition by the condemnees is not properly before us under the status of the present record.

The final point of the Agency concerns alleged improper oral argument of Trammel’s counsel. This point relates to the repeated emphasis of Alderson’s testimony, discussed above, by Trammel’s attorney to the jury. Reference to this evidence cannot be error if the admission of the evidence itself was not error.

The judgments of the courts below are reversed, and the cause is remanded to the county court at law for a new trial.

      . We do not have before us the evidence question as to whether actual rentals received or “fair rental value” should he used in determining market value of the entire property taken. Compare this Court’s opinion in Texas Electric Service Co. v. Linebery, 162 Tex. 570, 349 S.W.2d 105-106 (1961).

      . The instructions given in the case at bar were:
      You are instructed, that by the term “leasehold estate of the lessee,” is meant, the right to use, and occupy the land and improvements, described in the lease between lessor and lessee, for the balance of the lease term and renewal term, if any, upon the payment of the rentals and performance of the other terms of the lease.
      You are instructed further that by reasonable market value of the leasehold interest is meant the cash price the leasehold interest would bring when offered for sale by one who desires to sell but is not obliged to sell and is bought by one who desires to buy but is under no necessity of buying.
      There is no point before us specifically attacking the above definitions, and we express no opinion on the correctness of them. Other courts and writers have attempted to frame instructions. See, for example, Purnell, The Valuation of the Leasehold Estate, Southwestern Legal Foundation Institute on Eminent Domain 79 at 92 (1959); Rayburn, Texas Law of Condemnation, 275 § 192(2) (1960) ; City of Ashland v. Price, 318 S.W.2d 861 (Ky.1958); City of Dothan v. Wilkes, 269 Ala. 444, 114 So.2d 237 (1959). We do not, by citing the above, wish to be understood as approving them. Also, to be considered is City of Waco v. Messer, 124 Tex. 417, 78 S.W.2d 169 (1935). We deem it preferable to allow the trial court, with the benefit of counsel for all parties, to arrive at the definitions which best fit the particular case. Particular leasehold contracts and other circumstances in other cases may require particular treatment. Some of these problems are presented in 1 Orgel, Valuation Under Eminent Domain, § 121 et seq. (2d ed. 1953).


author: WOODLEY, Judge.

text:
    Jack McCLENDON, Appellant, v. The STATE of Texas, Appellee.
    No. 39825.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1966.
    No attorney of record on appeal for appellant.
    Leon- B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is defrauding with a worthless check; the punishment, 240 days in jail and a fine of $500.

The record does not include a statement of facts adduced at the trial. No brief was filed in the trial court.

We note that appellant was not represented by counsel at his trial and his counsel on appeal has not been paid his fee and has become ineligible to represent appellant because he is now County Attorney of Lynn County, and has so advised appellant and this Court. No serious question as to the denial of right to counsel is presented, however, because the record reflects that after hearing the trial judge found that appellant was not indigent but was able to employ counsel if he saw fit to do so.

No error appearing, the judgment is affirmed.


text:
    Ex parte George Washington HAMMONDS.
    No. 39810.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1966.
    Toby Goldsmith, Fort Worth, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

This is a habeas corpus proceeding attacking the validity of a life sentence for burglary wherein two prior convictions were used to enhance the punishment.

The record made at the hearing before the trial judge which resulted in the granting of the writ returnable before this Court reflects that in one of the prior convictions, which was for the offense of burglary and occurred in the 70th Judicial District of Midland County on July 3, 1945, petitioner waived a jury and pleaded guilty before the court without being represented by counsel.

Art. 10a Vernon’s Ann.C.C.P., in effect at the time of the 1945 conviction in Midland County, provided that before a defendant who has no attorney can agree to waive a jury, the court must appoint an attorney to represent him.

Under recent opinions of the Supreme Court of the United States, applying Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the 1945 conviction was void and could not be used to enhance the punishment. See Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526, and cases cited.

The provisions of Art. 62 P.C. were applicable and the prior conviction for burglary in 1952 authorized a punishment of 12 years.

The record reflects that the petitioner has served in excess of 12 years and is entitled to be released from further confinement under the life sentence affirmed by this Court in Hammonds v. State, 167 Tex. Cr.R. 228, 320 S.W.2d 7.

It is so ordered.


author: McDonald, judge.

text:
    Jay E. DISLER, Appellant, v. The STATE of Texas, Appellee.
    No. 39778.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1966.
    Will Gray, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Ray Moses and Jos S. Maida, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

Appellant was convicted in the County Court at Law Number 4 of Harris County of the misdemeanor offense of unlawfully executing a deed within this state, knowing at the time of said execution of such deed that he was not the owner of the land and that he did not have any interest therein. Trial was had before a jury, based upon a grand jury indictment. After a finding of guilty, the jury assessed punishment at a fine of $500.00 and six months confinement in the county jail.

The evidence reflects that Charlie and Darline Griffin were married in 1943. In 1951 they entered into a contract of sale with the Inkley Company to purchase the real estate here in question. Charlie and Darline were divorced in 1954 and no disposition of the property was made. Dar-line is now Mrs. Hayden. In 1963 this property was conveyed to Charlie and Mrs. Hayden from the Inkley Company by a warranty deed. On May 26, 1964, Charlie quit-claimed his interest in the property to Mrs. Hayden.

In February of 1964, appellant obtained possession of the warranty deed from Mrs. Hayden when she borrowed $75.00 from him. In April of 1964, appellant sent one Willie Wilson to return the warranty deed to Mrs. Hayden. At this time Wilson also got Mrs. Hayden to affix her signature to a piece of paper at the request of the appellant. This piece of paper which was signed by Mrs. Hayden is shown to be the warranty deed conveying the property to appellant. The signature of Charlie Griffin also appears on the deed.

Mrs. Hayden’s testimony reflects that the signature on this deed was hers. She stated that she signed a blank sheet of paper on instructions from Wilson because it was an application for a loan and her signature was necessary. She denied having any intention of conveying the property to appellant.

Appellant concedes that there is probably sufficient evidence to prove the state’s theory of a fraudulent conveyance under Vernon’s Ann.P.C. Art. 1137j so far as the interest of Mrs. Hayden is concerned. He contends, however, that under the terms of the statute the state must prove that he knew that he had no interest in the allegedly fraudulently conveyed property. He contends that for the state to obtain a conviction under this statute it must offer evidence that Charlie Griffin did not in fact sign the warranty deed conveying property to him. It is appellant’s position that if the state did not do this, he obtained the interest of Charlie Griffin and no conviction can be had under the requisites of the statute. Appellant contends that the state’s case is built on circumstantial evidence; that it is weak; and that the evidence is insufficient to prove beyond a reasonable doubt that Charlie Griffin did not sign the deed. He further contends that the state should have produced Charlie Griffin as a witness or given sufficient reason for his absence. Appellant relies on testimony by Darline Hayden to show that Griffin lived “here in Houston somewhere” to show his availability. Appellant urges that without Griffin’s testimony the least the state could have done was to produce a hand-writing expert .to compare the two signatures of Charlie Griffin, the one on the warranty deed and the other on the quit-claim deed, and render an expert opinion as to whether or not the signatures were the same on both of these instruments. In support of this proposition, appellant cites Wilkie v. State, 83 Tex.Cr.R. 490, 203 S.W. 1091; Davis v. State, 89 Tex.Cr.R. 411, 231 S.W. 784; Cramer v. State, 93 Tex.Cr.R. 226, 246 S.W. 380; Buford v. State, 112 Tex.Cr.R. 593, 17 S.W.2d 1072; Vasquez v. State, 145 Tex. Cr.R. 376, 167 S.W.2d 1030; Massey v. State, 154 Tex.Cr.R. 263, 226 S.W.2d 856; Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251. The doctrine of these cases which appellant seeks to invoke is only applicable in circumstantial evidence cases. Musser v. State, 167 Tex.Cr.R. 529, 321 S.W.2d 882. It is only applicable then, when the state’s case is obviously weak. Lockhart v. State, 171 Tex.Cr.R. 648, 352 S.W.2d 749.

From the record it can be seen that Mrs. Hayden testified that she did not sign Mr. Griffin’s name. Further, Willie Wilson testified that he did not sign it nor did he know who did. On direct-examination Mrs. Hayden testified concerning the deed to appellant as follows:

Q: “Mrs. Hayden are you familiar with the signature of Charlie Griffin, your ex-husband?”
A: “I think so, it’s so long since I seen his signature.”
Q: “Could you recognize your husband’s signature if you saw it, your ex-husband ?”
A: “Yes, I believe I could, but that’s not his signature on that paper.” (Emphasis added.)

We conclude that the foregoing evidence of Mrs. Hayden is sufficient to refute appellant’s contentions of ownership derived from Charlie Griffin. The action of the trial court in denying appellant’s requested instructions as to community property rights of divorced spouses, co-tenants and tenants in common, does not constitute error in view of the record before us, as the facts do not support appellant’s contentions. They are overruled.

The other contentions presented have been considered and they do not reveal error.

The judgment is affirmed.


text:
    Gerald Lewis BARNES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39824.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1966.
    Stone & Davis, by Stanton Stone, Free-port, for appellant.
    Tom Kenyon, Dist. Atty., Wallace N. Shaw, Asst. Dist. Atty., Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
    BELCHER, Commissioner.
   OPINION

The conviction is for transporting whiskey in a dry area; the punishment, a fine of $100.

The appellant entered a plea of not guilty on a trial before the court without a jury on March 14, 1966.

No brief was filed in the trial court assigning error.

Appellant’s brief filed in this court presents the contention that the undisputed evidence showed that the transporting of whiskey was lawful under the exception in Art. 23a(l) of Art. 666 Vernon’s Ann.P.C.

Proof was offered that Brazoria County was a dry area.

It is undisputed that the appellant was transporting three pints of whiskey in the automobile he was driving upon a public highway- in Brazoria County. The evidence also shows that the appellant had two one-half gallons of muscatel wine and one quart of gin in the automobile.

In his own behalf, the appellant testified that he had a 100 percent physical disability and had the whiskey, gin, and wine for his own personal use, mainly so he could sleep.

The trial judge, when sitting as the sole trier of the facts, is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. He is authorized to accept or reject any or all of the testimony. Miller v. State, Tex.Cr. App., 388 S.W.2d 186; Walker v. State, Tex.Cr.App., 395 S.W.2d 645.

The judge resolved the issue of fact against the appellant.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Demorris EDMONDS, Appellant, v. The STATE of Texas, Appellee.
    No. 39769.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1966.
    Rehearing Denied Nov. 16, 1966.
    Wiley L. Caffey, Abilene, for appellant.
    Richard M. Price, Dist. Atty., Abilene, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The offense is burglary; the punishment, ten years.

The indictment charged the burglary of a house occupied and controlled by Betty Jean Lemmons.

The state’s testimony shows that Mrs. Lemmons, the prosecuting witness, and her eighteen-year-old daughter, Ruby Jean, lived in a house on North 6th Street in the city of Abilene. Both the mother and daughter worked and were not home during the day. On the day in question, Mrs. Lemmons was the last to leave the house, leaving around 8:10 a. m. At such time all doors to the house were locked. Shortly after 4 p. m. the daughter returned home from work. When she got out of the car in front of the house she saw appellant going out the back gate. He was carrying a radio which appeared to be hers and she proceeded to follow him down an alley and observed him put the radio in a toilet. After disposing of the radio, appellant turned around, stared at her, and walked away. Ruby Jean then went to the house and observed that both the back door and the kitchen door had been “prized.” A lock on the back door had been broken off. She went inside the house and found that her radio and her mother’s television set were missing. Thereupon, she called the police, and when a city detective arrived upon the scene the two went down the alley to where the missing radio and television were found in the toilet.

It was shown by the testimony of the prosecuting witness and her daughter that neither of them gave the appellant or anyone else permission to break and enter the house and take the radio and television.

Appellant did not testify.

The issue of appellant’s guilt was submitted to the jury upon a charge on the law of circumstantial evidence.

We first overrule appellant’s contention that the evidence is insufficient to sustain the conviction.

The witness Ruby Jean Lemmons positively identified appellant at the trial as the person leaving the premises with the radio shown to have been stolen from the house.

The witness’s positive identification of appellant was not destroyed by the fact that she testified she really did not know him and had seen him before but did not remember where because she had not paid any attention to him at the time. Nor was her testimony identifying appellant insufficient because it was not corroborated.

The proof of appellant’s unexplained possession of the property recently stolen from the house, together with proof that the house had been burglarized by someone, was sufficient to support the conviction. 4 Branch’s P.C.2d, Sec. 2537; Bernadett v. State, 166 Tex.Cr.R. 621, 317 S.W.2d 747; Adame v. State, Tex.Cr.App., 372 S.W.2d 545.

We also overrule appellant’s ground of error #1, which is that the court should have granted a mistrial, even though not requested, because the prosecuting witness sobbed and cried while testifying as a witness in the case. No authority has been cited by appellant in support of his contention. While the record does show that the eighteen-year-old witness did cry on several occasions while being cross-examined by appellant’s counsel, we do not agree that the court should have stopped the proceedings and granted a mistrial.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the court.


text:
    Freddie Lee KINDELL, Appellant, v. The STATE of Texas, Appellee.
    No. 39527.
    Court of Criminal Appeals of Texas.
    April 27, 1966.
    Rehearing Denied June 1, 1966.

      Miller & Gann, by Wm. Mac Gann, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and W. Louis White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for negligent homicide in the second degree; the punishment, three hundred sixty-six days in jail.

The second count of the information, under which appellant was convicted, charged that while engaged in the performance of an unlawful act “of driving his motor vehicle onto the left hand roadway of a public road which was then and there divided into two (2) roadways by a physical barrier, to-wit, an esplanade, at a place where there was no opening in said esplanade and where no crossover or intersection established by any public authority existed,” the appellant did by negligence and carelessness cause the death of Gary Keeling by causing his (appellant’s) motor vehicle to collide with another vehicle, thereby killing the deceased, who was a passenger in appellant’s automobile.

It was undisputed that the deceased was killed in a collision between a 1961 Corvair automobile driven by appellant and a 1955 Ford station wagon driven by one David Knoll. At the time of the collision the deceased was riding as a passenger in appellant’s automobile. The collision occurred in the 12,200 block of Market Street Road, in Harris County.

At the site of the collision, Market Street Road was a divided paved highway with two lanes for westbound traffic and two lanes for eastbound traffic. A shell esplanade divided the highway into the two roadways. At such location there were no crossroads or intersections.

It was shown by the testimony of the state’s witnesses that prior to the collision the appellant was traveling west on Market Street and the Ford station wagon was traveling east. As both vehicles were proceeding in opposite directions in their proper traffic lanes, appellant’s automobile crossed over the esplanade into the roadway for eastbound traffic and collided with the station wagon. One witness to the collision estimated the speed of appellant’s automobile at sixty miles per hour. The point of impact between the two vehicles was approximately in the center of the roadway for eastbound traffic. Tire marks made by appellant’s automobile showed that his vehicle entered the esplanade at a point where it was about four feet wide, traveled one hundred thirty-five feet down the esplanade, leaving it at a point where it was almost ten feet wide, and then traveled another forty feet into the eastbound traffic lane before colliding with the oncoming automobile.

Testifying in his own behalf appellant stated that prior to the collision he was traveling west in an inside lane and when he saw some lights “coming” toward him “across the esplanade,” he turned left and did not remember anything else until after the collision.

The jury, by their verdict, found appellant guilty as charged.

Appellant insists that the evidence is insufficient to support the conviction because the state failed to prove that at the place of the collision the highway was divided into two roadways by a “physical barrier, to-wit, an esplanade,” as charged in the information.

Appellant insists that the non-paved section, covered with shell, between the two roadways was not a physical barrier and he points to certain testimony in the record which showed that, on occasions, persons did drive across the esplanade and park cars thereon.

The unlawful act charged in the information is defined in Sec. 62 of Art. 6701d, V.C.S., as follows:

“Whenever any highway has been divided into two (2) roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway and no vehicle shall be driven over, across, or within any such dividing space, barrier, or section, except through an opening in such physical barrier or dividing section or space or at a cross-over or intersection established by public authority.”

It appears that no court has construed the meaning of a “physical barrier,” as such term is used in the statute.

Two of the civil courts of this state have held that solid yellow lines in the center of a highway constitute an “intervening space” or “dividing section” within the meaning of Sec. 62 of the statute. Mrs. Baird’s Bakeries, Inc. v. Roberts (Civ. App., 1962), 360 S.W.2d 850, ref., n. r. e.; Boggus v. Miller (Civ.App., 1965), 388 S.W.2d 240, ref., n. r. e.

While an esplanade like the one in question is not a physical barrier such as a fence or other obstacle, it is a barrier within the definition found in Webster’s New International Dictionary: “Any limit or boundary; a line of separation.”

The unlawful act charged under the statute was the driving of a motor vehicle onto the lefthand roadway of a divided highway at a place where there was no opening or crossover or intersection established by any public authority.

The allegation that the highway was divided by a “physical barrier” rather than “an intervening space” or “dividing section” did not require proof that the esplanade was an impassable obstruction.

We hold the evidence sufficient to sustain the allegations of the information.

Appellant’s remaining contention is that the court erred in refusing to grant him a new trial because of alleged jury misconduct.

The contention is not presented by either a formal or informal bill of exception. The juror’s affidavit which was attached to the motion for new trial does not prove itself and cannot be substituted for a bill of exception. Flores v. State, 172 Tex.Cr.R. 73, 353 S.W.2d 852; Perez v. State, Tex.Cr.App., 396 S.W.2d 870. Nothing is presented for review.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Judge

text:
    Ex parte Salvador P. SOTO.
    No. 39934.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1966.
    Clyde W. Woody, Marian S. Rosen, Houston, for relator.
    Stanley Kacir, Dist. Atty., Belton, and Leon B. Douglas, State’s Atty., Austin, for the State.
    MORRISON, Presiding Judge.
   OPINION

This is an original mandamus proceeding under Article V, Sec. 5 of the Constitution of Texas, Vernon’s Ann.St.

Notice of appeal was given in petitioner’s case, and as the time for perfecting the record under Article 40.09, Vernon’s Ann. C.C.P. neared its end, petitioner’s attorney on appeal made application for an extension of time to file such record to the Honorable W. A. Messer, Judge of the 146th Judicial District Court, sitting for the Judge of the 27th Judicial District Court during his absence at the State Bar Convention. The extension was granted, but upon the return of the Judge of the 27th Judicial District to his district, he granted the State’s motion objecting to the record as not having been timely filed, and thereafter refused to approve the entire record of appellant’s case.

It should be noted that'the Judge of the 27th Judicial District in no wise attempted to set aside the order of the Judge of the 146th Judicial District, but instead granted the State’s motion as stated above.

Article 199, Sec. 146, Vernon’s Ann.Civ. St. provides in part as follows:

“ * * * In case of absence, sickness or disqualification of any of said Judges, any other of said Judges may hold Court for him * *

Under the holding of this Court in Richardson v. State, 154 Tex.Cr.R. 422, 228 S.W.2d 179, and Johnson v. State, 61 Tex. Cr.R. 104, 134 S.W. 225, and the civil cases of Shaeffer et al. v. Smyth, et al., Tex.Com.App., 37 S.W.2d 1012; Pratley v. Sherman-Williams Company of Texas, Tex.Com.App., 36 S.W.2d 195, and Schulz v. Boyd, Tex.Civ.App., 32 S.W.2d 483, there can be no question of Judge Messer’s authority to grant the extension of time.

The Judge of the 27th Judicial District Court is directed to approve petitioner’s record on appeal for transmittal to this Court.

It is so ordered.

WOODLEY, Judge

(dissenting).

This Court is without authority to issue the writ of mandamus sought in this proceeding. Art: V, Section 5, of the Constitution of Texas authorizes the issuance of the writ of mandamus only when necessary to enforce the jurisdiction of the Court of Criminal Appeals.

The majority say that Judge Evetts has “refused to approve the entire record of appellant’s case.”

In his sworn reply the respondent Judge makes it clear that he stands ready to and does approve the record in petitioner’s case subject to his order of September 20, 1966, which reads:

“On this date came the State of Texas by its District Attorney and the Defendant in person, by counsel, and announced ready for hearing on the State’s Objection to the record filed in said cause.
“After hearing testimony and argument of both parties, the Court is of the opinion the objection of the State of Texas to the record herein should be in all things sustained and it is so ordered, adjudged and decreed.
“To which action the Defendant, in open Court, excepts and objects and gives Notice of Appeal to the Court of Criminal Appeals sitting in Austin, Texas.”

The majority opinion notes that Judge .Evetts has “in no wise attempted to set aside the order” of Judge Messer extending the time to file the record.

The Respondent, Judge Evetts, in his sworn reply states that his order of September 20 in effect sets aside Judge Mess-er’s extension order.

If there is any doubt as to whether Judge Evetts has exercised all of the authority he had in regard to setting aside the extension order, or in granting the state’s objection, there would seem to be no doubt that Judge Evetts has authority to amend or enter an order clearly setting forth his ruling on the questions relating to the extension order and the state’s objection to the approval of the record.

The motion for extension of time “to file record on appeal” which was granted by Judge Messer, and Judge Evetts’ order thereon, do not in fact relate to the time for filing of the record on appeal but to the time for filing with the clerk for in-elusion in such record a transcription of notes of the court reporter applicable only to a proceeding which occurred within 90 days after notice of appeal, the filing of which is regulated by the provisions of Art. 40.09, Section 3, of the 1965 Code of Criminal Procedure.

Art. 40.09 C.C.P. requires that copies of all written motions and pleas, and orders of the court, be included in the appellate record. The trial judge is under no duty to and should not be directed by this Court to unqualifiedly approve a record on appeal which does not include and is contrary to his finding that a transcription contained therein was not timely filed.

I respectfully dissent.


author: MORRISON, Presiding Judge.

text:
    Lonnie William ENGLEDOW, Appellant, v. The STATE of Texas, Appellee.
    No. 39830.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1966.
    Roy C. Hughes, Jr., Dallas, for appellant,
    Henry Wade, Dist. Atty., Kenneth E. Blassingame, Joe K. Hendley, W. John Allison, Jr., and Kerry P. Fitzgerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

The offense is statutory rape; the punishment, 12 years.

Trial was had, and notice of appeal was given in 1965.

Appellant’s 13 year old granddaughter testified that she was an orphan and lived with appellant and his wife, her grandmother, and that on the day in question appellant called her into the bedroom, pulled her down on the bed and had intercourse with her. She testified that at some time later she and appellant were brought to the Sheriff’s office where she was examined by a doctor and where she made a written statement.

Sheri Jacobs of the Dallas County Welfare Department testified that she had worked with the prosecutrix since shortly after the day charged in the indictment and expressed the opinion that, though physically mature, the girl had the mental capacity of a nine year old child.

Dr. MarDock testified that he examined prosecutrix two days after the date alleged in the indictment and expressed the opinion that she had had recent sexual intercourse.

The State then rested, and appellant testified in his own behalf denying that he had ever had intercourse with the prosecutrix and stated that it was he who instituted the call to the police because prosecutrix was missing on the afternoon in question. He then called reputation witnesses and rested.

At this juncture the State called Officer Cook, who testified in the absence of the jury that he had warned appellant and advised him of his right to counsel, that he was told by appellant that he did not want counsel, and that after 20 minutes of interrogation, appellant orally admitted the act of intercourse on the day charged in the indictment, as well as several acts of intercourse which had preceded it. Cook stated that such statement was reduced to writing and read to appellant in the presence of Ralph Coleman, a newsman for TV, Channel 11, and signed by appellant. Coleman corroborated Cook’s testimony.

Appellant then testified that he was partially blind and that he had affixed his signature to an instrument without knowing its contents because of certain promises and inducements made to him by Cook. The Court made his findings in accordance with the procedure outlined by this Court in Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, and then the same evidence as to the voluntariness of the confession was submitted to the jury with the confession.

We find the evidence sufficient to support the conviction and shall discuss the contentions advanced by counsel by brief and in argument.

His first contention is that the totality of the circumstances renders the confession inadmissible as a matter of law. He relies upon appellant’s age, his poor vision, the fact that he appeared to be perturbed and distraught while making the confession and before signing the same, and his claim that he was ill. Reliance is had upon Collins v. Beto, 5 Cir., 348 F.2d 823. By no stretch of the imagination could the facts before us here be said to reach the constitutional dimensions which were present in Collins, and we overrule appellant’s contention in this regard.

His next contention is that the testimony of the prosecutrix does not comport with human experience and is therefore rendered unbelievable. He bases this upon the fact that the prosecutrix first said that they ate lunch at home prior to the act taking place, and then later remembered that the family had journeyed to Kaufman and had eaten on the way before returning home where the act of intercourse took place. As we said in Botello v. State, 161 Tex.Cr.R. 207, 275 S.W.2d 814, we view the testimony of immature girls in cases of this nature with utmost care. We have done so in the case at bar and have concluded that her account of the transaction was rational and comported with human experience.

Appellant’s requested charge would have instructed the jury to acquit unless they found that there was evidence corroborating the appellant’s confession. In failing to give such charge, the Court did not err. It was undisputed that this 13 year old unmarried girl had had intercourse recently with someone. This testimony plus the testimony of the prosecutrix constituted ample evidence aside from the confession which rendered the giving of the requested charge unnecessary. Smith v. State, 157 Tex.Cr.R. 21, 246 S.W.2d 187, and cases there cited.

Finding no reversible error, the judgment is affirmed.


text:
    Oscar Raymond HOBBS, Appellant, v. The STATE of Texas, Appellee.
    No. 39754.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1966.

      M. S. Morgan, Houston, for appellant.
    Tom Kenyon, Dist. Atty., Wallace N. Shaw, Asst. Dist. Atty., Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

Appellant was convicted under the provisions of Art. 483, Vernon’s Ann.P.C., which make it unlawful for one to carry on or about his person “a knife with a blade over five and one half (5'½) inches in length,” and his punishment was assessed at a fine of $100.

Trial was before the court without a jury, upon appellant’s plea of not guilty.

Judgment was rendered on February 2, 1966, with sentence pronounced thereon and notice of appeal given by appellant on February 22, 1966.

At the trial, Officer Gerald Grey testified that on the day in question he stopped and arrested the appellant on North Second Street in the city of Alvin for driving an automobile with a defective muffler. The officer stated that when he went to appellant’s automobile he found a knife on the front seat by appellant, which knife he took from the vehicle. State’s exhibit #1 was identified by the officer as the one found in the car and described by him as a 10j4-inch one-blade knife with a 4j4-inch handle and 6-inch blade.

Testifying as a witness in his own behalf, appellant denied that state’s exhibit #1 was his knife and that it was in his automobile and removed by the officer at the time of his arrest. Appellant stated that he did have a hunting knife underneath the front seat of the car at the time of his arrest which he later discovered to be missing. Appellant further testified that he lived in the city of Houston and that on the day in question he had driven to Alvin to see a doctor and at the time he was stopped by the officer he was returning to his home in Houston.

We shall discuss the grounds of error urged in appellant’s brief filed in the trial court and considered by the trial judge in refusing to grant a new trial.

It is first contended by appellant that if his automobile was searched by the officer it was without a search warrant and was therefore an illegal search.

The record reflects that when the knife (state’s exhibit #1) was offered by the state, appellant made no objection to its admission in evidence. The knife having been admitted in evidence without objection, appellant is in no position to complain of the legality of the search. Williams v. State, 168 Tex.Cr.R. 643, 331 S.W.2d 214. It should be observed that if appellant had objected to the admission of the knife in evidence, such objection would not have been well taken, as it appears that the officer’s search was incident to a lawful arrest and was therefore authorized. Art. 6701d, Sec. 153, Vernon’s Ann.Civ.St.; Soileau v. State, 156 Tex.Cr.R. 544, 244 S.W.2d 224; Minor v. State, 153 Tex.Cr.R. 242, 219 S.W.2d 467.

The other ground of error of which appellant complains is that the evidence is insufficient to sustain the conviction. It is insisted that the evidence is insufficient to convict because the proof showed that he was a traveler, who is exempt from prosecution by Art. 484 of the Penal Code.

While appellant by his testimony sought to bring himself within the exception of the statute as a traveler, the trial judge was not bound to accept his testimony. Allen v. State, 158 Tex.Cr.R. 666, 259 S.W.2d 225; Porter v. State, Tex.Cr.App., 388 S.W.2d 422. Further, the appellant did not show himself to be a traveler and within the exception of the statute. Wortham v. State, 95 Tex.Cr.R. 135, 252 S.W. 1063; Vogt v. State, 159 Tex.Cr.R. 211, 258 S.W.2d 795, cert. denied, 346 U.S. 901, 74 S.Ct. 221, 98 L.Ed. 401.

It is also contended that the evidence is insufficient to convict because the state did not prove that the knife in question was manufactured or sold for the purpose of offense or defense as provided in Art. 483, supra.

We find no merit in such contention, as appellant was not prosecuted under the provisions of the statute referred to but under that portion of the statute which, as amended in 1957 by the 55th Legislature, Acts 1957, p. 806, Ch. 340, Sec. 1, made it unlawful to carry “a knife with a blade over five and one half (5½) inches in length.” This portion of the statute as amended in 1957 has by this court been held to be constitutional. Dawson v. State, 171 Tex.Cr.R. 154, 346 S.W.2d 132.

Ramirez v. State, 153 Tex.Cr.R. 454, 221 S.W.2d 241, and Brito v. State, 162 Tex.Cr. R. 467, 286 S.W.2d 637, cited by appellant, are not here applicable, because these cases were decided prior to the 1957 amendment to Art. 483, supra, and were prosecutions for •carrying a knife manufactured and sold for the purpose of offense or defense.

Appellant’s exception to the •court’s action in refusing to grant a new trial on the ground of newly discovered evidence is not urged as a ground of error in his appellate brief and is therefore not before us for review. The exception is not such as should be reviewed as unassigned error under Sec. 13 of Art. 40.09 of the 1965 Code, Vernon’s Ann. C.C.P.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Presiding Judge. McDonald, judge. WOODLEY, Judge.

text:
    Jack RUBENSTEIN, alias Jack Ruby, Appellant, v. The STATE of Texas, Appellee.
    No. 37900.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1966.
    Rehearing Denied Nov. 16, 1966.
    See also, Tex.Cr.App., 403 S.W.2d 129.

      Phil Burleson, Dallas, Sam Houston Clinton, Jr., Austin, William M. ICunstler, New York City, Sol Dann, Detroit, Mich., and Elmer Gertz, Chicago, Ill., for appellant.
    Joe H. Tonahill, Jasper, Emmett Colvin, Jr., Dallas, and Melvin M. Belli, Sr., San Francisco, Cal., amici curiae.
    Henry Wade, Dist. Atty., William F. Alexander, Frank W. Watts, Wilson Johnston and James M. Williamson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

The offense is murder; the punishment, death.

Shortly after noon on November 22, 1963, the President of the United States was ¡assassinated within the courthouse area in the city of Dallas. A short while thereafter Lee Harvey Oswald was apprehended, hut only after Patrolman Tippitt was killed in an effort to question him. Oswald was placed in the Dallas city jail. Two days later on November 24, in the basement of the city jail as Oswald was being transferred to the county jail, he was shot by •appellant at close range, from which wound be died. Countless thousands witnessed this shooting on television. Four days later this appellant was indicted for Oswald’s murder. His sole defense was that of insanity in that he was suffering from psychomotor epilepsy.

On February 10, 1964, a change of venue hearing began in Criminal District Court No. 3 of Dallas County upon the motion of appellant to transfer the case to some county other than Dallas. The Court did not grant the change of venue; the selection of the jury began on February 17, was completed on March 3, and a verdict of guilty with punishment set at death was returned on March 14.

The voluminous record in this appeal finally reached this Court, and the case was set for submission on March 10, 1965.

Prior to submission a serious question arose as to which of many lawyers should be recognized by this Court as appellant’s counsel on appeal. In view of this, we entered an order directing the trial court to hold a hearing to determine whether or not appellant had become insane since his trial and thereby rendered incapable of rationally selecting his counsel. Such hearing was held, and the record reached this Court containing a finding that appellant was presently sane, and we promptly set the case down for submission.

During the trial, over the strenuous objection of appellant that anything appellant may have said while in police custody constituted an oral confession in violation of the statutes of this State and was not admissible as res gestae, Sgt. Dean of the Dallas police testified as to a conversation which he had with appellant on the fifth floor of the Dallas city jail where he had been incarcerated, undressed and interrogated by other officers before Dean and Secret Service Agent Sorrells arrived at his cell. Prior to answering any' of Sor-rells’ questions, appellant asked if his answers would be made available to “magazines or publications” and after being assured that he was being questioned only for police purposes, appellant replied, “I’ll be glad to answer your questions.”

The time element which elapsed between appellant’s arrest and the conversation in question varies between 10 and 40 minutes depending upon whether Dean’s testimony at the trial or his written report made two days after the occurrence is accepted. Be this as it may, appellant was in a jail cell and had been interrogated by other officers prior to this conversation. Under none of the authorities cited in Notes 1-3 of Moore v. State, Tex.Cr.App., 380 S.W.2d 626, could this statement be held to have been spontaneously made. See also Holman v. State, 92 Tex.Cr.R. 364, 243 S.W. 1093; McBride v. State, 115 Tex.Cr.R. 378, 27 S.W.2d 1100; Bradford v. State, 122 Tex.Cr.R. 191, 54 S.W.2d 516; Hamilton v. State, 138 Tex.Cr.R. 205, 135 S.W.2d 476; Trammell v. State, 145 Tex.Cr.R. 224, 167 S.W.2d 171; Oldham v. State, 167 Tex.Cr.R. 644, 322 S.W.2d 616; and Furrh v. State, 168 Tex.Cr.R. 299, 325 S.W.2d 699, cited by appellant’s counsel and counsel acting as friends of the Court. The test in this State is spontaneity and these facts do not fit the test. One who is cautious enough to inquire whether his answers to the questions to be propounded to him are to be released to news media is not speaking spontaneously.

Sorrells questioned appellant about how he had been able to penetrate the police cordon protecting the transfer of Oswald. At the conclusion of this questioning and as they were preparing to leave, according to Dean’s testimony he asked appellant a question and appellant told Dean that he had seen Oswald in a police line-up two nights before and that when he saw the sarcastic sneer on Oswald’s face he had decided that if he got a chance to do so, he would kill him. Obviously this statement constituted an oral confession of premeditation made while in police custody and therefore was not admissible. The admission of this testimony was clearly injurious and calls for a reversal of this conviction.

What we have heretofore said makes it unnecessary to discuss in detail the error of the court in failing to grant appellant’s motion for change of venue. Both Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, were decided after appellant’s trial, but each case related to a state court trial held prior to appellant’s trial and determines the law applicable to this case, and both are hereby controlling. It is abundantly clear from a careful study of both opinions of the Supreme Court of the United States and the record of this case that the trial court reversibly erred in refusing appellant’s motion for change of venue. Not only are we bound legally by the holdings of the Supreme Court, but as practical public servants it becomes our duty to avoid the costs which are taxed against the State of Texas when one of our decisions fails to follow the rules announced by the Supreme Court. See also Pamplin v. Mason (CCA 5th July 27, 1966), 364 F.2d 1, affirming Mason v. Pamplin, W.D.Tex.1964, 232 F. Supp. 539.

Judge Joe B. Brown, who tried this case, has recused himself from any further connection with the case and, we have concluded, properly so.

For the errors pointed out, the judgment is reversed, and the cause is remanded with directions that the venue be changed to some county other than Dallas. It is so ordered.

CONCURRING OPINION

McDonald, judge.

I agree with the result reached by Presiding Judge Morrison in his opinion reversing this case. However, I desire to elaborate more fully on the error of the trial court in refusing to grant the motion for change of venue. I shall recite in detail some pertinent facts in the case pertaining to the venue question.

The trial of this cause started February 10, 1964, with a change of venue proceeding. It culminated the following March 14, 1964, with the death penalty verdict. The hearing on venue and subsequent proceedings took place in the same building to which Lee Harvey Oswald was being moved at the time he was shot. This same Ruby trial building is situated approximately one hundred yards from where Lee Harvey Oswald assassinated President Kennedy two days previously.

It is apparent from the record that President Kennedy’s assassination occurred at a site on a Dallas Street so close to the Ruby trial courthouse that it could be seen daily by the jurors. At the time of this trial this location was being visited by the public who were placing wreaths at the historic spot out of respect to President Kennedy. Traffic was even then becoming jammed in the area by spectators.

Dallas was being blamed directly and indirectly for President Kennedy’s assassination and for allowing the shooting of Oswald by Ruby. The feeling and thought had been generated that Dallas County’s deprivation of prosecuting Oswald could find atonement in the prosecution of Ruby. The writer feels it fair to assume that the citizenry of Dallas consciously and subconsciously felt Dallas was on trial and the Dallas image was uppermost in their minds to such an extent that Ruby could not be tried there fairly while the state, nation and world judged Dallas for the tragic November events.

The press had a field day with stories stating directly, indirectly, by hints and in-nuendoes that a Communist conspiracy existed between Oswald and Ruby. Ruby was referred to as a “tough guy,” a “Chicago mobster,” a strip-joint owner. Anti-Semi-tism against Ruby was sparked by pretrial publicity that Ruby’s name had been changed from Rubenstein to Ruby.

The strong local prejudice against Ruby was reflected in the refusal of the County-operated Parkland Hospital to permit Ruby to undergo neurological testing for the purpose of determining his organic brain condition for trial purposes.

The trial judge retained the services of a prominent public relations counselor to handle the courtroom seating, the press, the trial publicity, and public relations in advance of the venue hearing and for the entire trial. Some 300 members of the news media occupied most of the seats in the courtroom.

The fact of the shooting of Oswald had been seen on television many, many times on that fateful day, November 24, 1963, in the Dallas County area, by countless thousands of citizens. This alone precluded Ruby from receiving a fair and impartial trial by a Dallas County jury. A fair and impartial trial is the rightful boast of western civilization.

Against such a background of unusual and extraordinary invasions of the expected neutral mental processes of a citizenry from which a jury is to be chosen, the Dallas County climate was one of such strong feeling that it was not humanly possiblq to give Ruby a fair and impartial trial which is the hallmark of American due process of law.

The late, eminent Mr. Justice Frankfurter stated in his concurrence in Irving v. Dowd, 366 U.S. 717, 729, 730, 81 S.Ct. 1639, 1646, 6 L.Ed.2d 751:

“ * * * rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused? A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.”

Ten of Jack Ruby’s trial jurors witnessed the shooting of Oswald on television. They were challenged for cause under Article 616, Vernon’s Ann.C.C.P., which prohibits a witness serving as a juror. Such challenges for cause were summarily dismissed and disposed of by the trial judge with dispatch.

Other than the testimony on voir dire of jurors Shields and Malone, we shall pre-termit detailing the voir dire examination of the jurors.

Juror Shields witnessed the shooting on television. She was objected to as being a witness to the offense as well as the others who saw it on television. The trial court refused to grant Ruby an additional peremptory challenge so that he could remove her as a juror. Ruby moved the Court to swear Juror Shields as a witness and the Court refused.

Juror Malone was a witness to the shooting on television and was objected to as being disqualified under Article 616, V.A.C. C.P. She knew that from what she had witnessed on television that Oswald was shot in the Dallas Police Station November 24th and subsequently died as a result of being shot with a pistol. It was the most extraordinary thing she had ever witnessed.

Nothing could remove her fixed knowledge of Oswald’s being shot in the Dallas Police Station. The only thing she did not know about the case as a fact was who fired the gun. All other issues pertaining to the shooting of Oswald were firmly and permanently fixed in her mind. She subsequently learned from television that it was Ruby who shot Oswald.

The trial judge seated her as a juror over the protest of Ruby’s counsel who insisted upon being given additional peremptory challenges in order that she might be challenged as an objectionable juror.

The crux of Juror Malone’s disqualification as a juror is explicitly reflected in the following excerpt during her voir dire examination :

“Q. But you do say that from what you have seen and read, it is firmly fixed in your mind that this extraordinary shooting you witnessed was to the effect that Oswald was shot that Sunday morning, in the police station, and the only thing you don’t have fixed in your mind is who did it. Is that right?
“A. That’s right.
“MR. TONAHILL: May it please the Court, we exercise and invoke Article 616, Code of Criminal Procedure, and ask that the lady be excused for cause.
“THE COURT: Overrule your challenge.
“MR. TONAHILL: Exception.”

Article 616, V.A.C.C.P. (6) commands and requires that witnesses to the charged offense cannot serve as jurors. The Supreme Court of the United States in Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663, has held that such objectionable jurors as Shields and Malone were, in effect, witnesses to the offense. Further, that Court has held that even non-witnesses who have been saturated with prejudicial news releases and rumors, and who hold a state of mind as objectionable jurors Shields and Malone possessed were not qualified as fair and impartial jurors, Irvin v. Dowd, supra.

There can be no difference to the competency of a witness who has heard via telephone or radio, or saw a matter through a mirror or field glasses, and a witness who has viewed a matter on television. A contrary holding would undermine the sound principles underlying the utilization of a scientific amplification and reproduction of sensory events, and thus unduly hamper the work and function of the triers of fact. In short, the television viewer meets the established criterion of personal observation required for a witness’ competency. Estes v. State of Texas, supra. The State operated from this inevitable and certain principle when it introduced the television film of the shooting of Oswald before the jury as direct evidence of the shooting.

The trial court could not, consistent with the due process, assume that the objectionable jurors Shields and Malone were endowed with a sense of detachment, so clear in introspective perception of their own mental processes that they could possibly exclude even the unconscious influence of their preconceptions as to all the established facts except identity of Ruby. Their mental processes were engendered by a pervasive pretrial publicity which denied Ruby his guarantee of a fair trial by a panel of “impartial, indifferent” jurors; because, “[t]he failure to accord an accused a fair hearing violates even the minimal standards of due process.” Irvin v. Dowd, supra, 366 U.S. at 722, 81 S.Ct. at 1642.

Against this background of crystalized opinions of the existence of the material issues with which the State was burdened to prove, Jack Ruby was forced to trial under the most adverse, unusual and extraordinary circumstances that this member of this Court has yet had occasion to consider.

It is stated in Estes v. State of Texas, supra:

“A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and television will inevitably result in prejudice. Trial by television is, therefore, foreign to our system.”

It was established below on the hearing for change of venue, the jury voir dire, and the quick verdict that the firmly established legal principles of law in this state and nation cried out for a change of venue of this case, which would guarantee Ruby the fair and unprejudiced trial which he failed to receive. At the same time, such transfer would cast no reflection, indictment against, or a challenge to the honesty, integrity or inability of the Dallas citizenry to give such. Rogers v. State, 155 Tex.Cr.R. 423, 236 S. W.2d 141.

In the brief of the Friends of the Court, and during his oral argument at the Bar before this Court when he appeared under the designation of this Court as “Friend of the Court,” trial counsel Tonahill ably urged and pointed out this basic principle of our jurisprudence which this Court has consistently followed.

The principles compelling a change of venue have been enunciated by this Court many times. Streight v. State, 62 Tex.Cr.R. 453, 138 S.W. 742; Coffman v. State, 62 Tex.Cr.R. 88, 136 S.W. 779; Williams v. State, 162 Tex.Cr.R. 202, 283 S.W.2d 239; also see: Cortez v. State, 44 Tex.Cr.R. 169, 69 S.W. 536, 537, and Manley v. State, 62 Tex.Cr.R. 392, 137 S.W. 1137.

The general rule that a change of venue lies within the sound discretion of the trial judge has to give way when an unfair jury is forced on one charged with crime.

It is to be noted that all twelve of Ruby’s jury entertained some conceptions of his guilt, one way or the other. The people of Dallas County had been exposed repeatedly and in great depth to the actual shooting of Oswald on television re-runs. In a similar case, Rideau v. State of Louisiana, supra, the Supreme Court of the United States did not bother to look to the transcript of the voir dire in reaching its determination as to prejudice:

“ * * * [W] e do not hesitate to hold, without pausing to examine a particularized transcript of the voir dire examination of the members of the jury, the due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau’s televised ‘interview.’ * * *” 373 U.S. 723, 727, 83 S.Ct. 1417, 1419.

This Court has been furnished with many outstanding briefs and many oral arguments were made by a battery of very able lawyers on both sides. This writer has been especially impressed with the conduct of Honorable Joe Tonahill. Through much stress and strain, misunderstanding among client and appellant’s relatives, he has exemplified the highest standards of the legal profession, remained true to his duty, and done an outstanding job in briefing and presenting this case before this Court.

I concur in the reversal of this cause.

CONCURRING OPINION

WOODLEY, Judge.

The writer concurs in the reversal of the conviction because of the court’s failure to change the venue and the admission in evidence of the testimony of the Witness Dean as to an oral statement of the appellant made while he was in jail, which statement, if made, was in the nature of a confession and inadmissible under Art. 727, Vernon’s Ann.C.C.P.

Though appellant’s counsel did not seek a continuance and there is sufficient evidence aside from Dean’s testimony to sustain the jury’s verdict, the errors mentioned were such as to deprive Jack Ruby of a fair trial on the issue of the punishment to be assessed by the jury.

For a better understanding of the delay in the submission of the appeal herein, and of the claim that Jack Ruby’s right to be represented by counsel of his choice was violated by the sanity hearing, the following orders, quotations and facts shown therein and elsewhere in the record are deemed pertinent.

The record on appeal was filed in this Court on January 14, 1965, and on February 24, 1965, the following order was entered:

“This appeal from a murder conviction, with punishment assessed at death, has been heretofore set for submission on March 10, 1965, briefs to be filed by March 3, 1965.
“Postponement is requested on behalf of appellant to allow new counsel time to-prepare their briefs and argument.
“Though the appellant occupies before this Court the position of an indigent, controversy has arisen as to which of several lawyers — none of them court appointed and some non-residents of Texas —should be recognized by this Court as his counsel on appeal entitled to use the time allowed for oral argument in his-behalf.
“The issue of insanity at the time of the killing and present insanity were raised at the trial and the jury found that appellant was sane.
“A principal, if not the controlling fact determinative of the question as to-which attorneys are to be recognized by this Court and be permitted to use the time allowed for oral argument upon submission of the appeal, is whether or not appellant has become insane since his trial. This is true because we have before us an affidavit of appellant asking that one of his trial counsel be dismissed and not permitted to argue his case before this Court and further requesting that an out-of-state firm of lawyers be permitted to participate and asking for a delay in order for such firm to prepare.
“Subsequent to the trial, affidavits were presented to the trial court to the effect that appellant is presently insane, together with a motion to postpone the hearing on question of his present sanity.
“Art. 932b V.A.C.C.P., Sections 4 and 5, provide:
“ ‘Sec. 4. If the question of the sanity of a person under death sentence is. raised and sufficient proof is shown to-satisfy the judge of the convicting court or the judge of the district court of the county in which the person is confined that reasonable doubt exists as to his sanity, the judge shall impanel a jury to determine whether the person is sane or insane. If the jury finds the person is insane, the court shall enter an order committing him to a State mental hospital to be confined therein as a person charged with a criminal offense until he becomes sane. If the jury finds the person is sane, the court shall remand him to the proper authority for disposition according to law.’
“ ‘Sec. 5. When a defendant is found to be insane and committed to a State mental hospital under this Chapter, all further proceedings in the case against him shall be suspended until he becomes sane, except that upon motion of a defendant’s counsel an appeal from a conviction may be prosecuted.’
“We have concluded that the submission of this appeal and decision on the question as to who will be recognized by this Court as appellant’s counsel on appeal should be postponed to allow time for the trial judge to judicially determine in the manner authorized by Art. 932b V. A.C.C.P. the question of appellant’s present sanity or insanity.”

In the Per Curiam opinion of this Court of May 18, 1966, in Ex parte Jack Ruby, No. 39,613 (motion for certiorari pending), we said:

“Jack Ruby is in the custody of the Sheriff of Dallas County, as the law requires him to be for this Court to have jurisdiction of his appeal from his conviction, with punishment assessed at death, which is pending before this Court in our Cause No. 37,900, styled Jack Rubenstein, Alias Jack Ruby vs. The State of Texas.
“This Court is and has been since February 24, 1965, ready, able and willing to hear, consider and decide the questions raised in said appeal in Cause No. 37,-900, including the question of the claim of denial of due process and the validity of the judgment of conviction. “Controversy continues as to whether Hon. Joe Tonahill, one of appellant’s trial counsel, should be permitted to represent him on appeal from his conviction for murder.
“Judge Holland has indicated his readiness to impanel a jury and determine the question of appellant’s present sanity or insanity. He is directed to do so without further delay and to certify to this Court the result of such hearing.
“At such hearing appellant’s trial attorney the Hon. Joe Tonahill as well as counsel representing appellant in this habeas corpus proceeding shall be given the opportunity to present any competent evidence relative to appellant’s present sanity.”

On June 3, 1966, this Court received a motion in the form of a telegram which read:

“Mr, William Kunstler and other Jack Ruby counsel have moved before Justice Hugo Black for a stay of the sanity trial you ordered May 18, 1966 for Appellant, Jack Ruby in Appeals #37,900 and 39,-613.
“I do not concur in such a motion nor did I participate therein because of my conscientious belief that Jack Ruby is insane and requires adequate psychiatric care which he cannot receive in the Dallas County Jail.
“Nevertheless, since Ruby’s other counsel are obviously opposed to the sanity trial, their attitude is such that they could not with the high degree of enthusiasm required in a sanity trial represent the best interest of Ruby. Their petition for a stay of the sanity trial is inconsistent with their duty and ability to prove him insane and obtain a jury finding of insanity. It appears that the best interest of justice indicates that their motion for stay action is grounds for you to immediately cancel the sanity hearing ordered May 18, 1966 and set the Ruby appeals down during this term for submission and oral argument. Joe H. Tonahill, Atty. of Record for Jack Ruby.”

The judgment entered upon the jury’s verdict at the sanity trial reads:

“On this the 13th day of June, A.D. 1966, this cause came on for trial as previously set and the State appeared by her Criminal District Attorney and the Defendant, Jack Ruby, appeared in person, his counsel consisting of Honorable Phil Burleson, Honorable Sam Houston Clinton, Jr., Honorable Sol Dann, Honorable Joe H. Tonahill and Honorable Emmett Colvin, also being present, and the question of the present sanity of Defendant, Jack Ruby, having been raised after his conviction, and while his appeal from that conviction was pending and the Honorable Court of Criminal Appeals of Texas having directed this Court to impanel a jury and determine the sanity or insanity of the Defendant, Jack Ruby, and the State announced ready for trial, but counsel for Defendant, Jack Ruby, refused to participate during the trial, but remained present in Court at the request of the Court, whereupon a jury of twelve (12) good and lawful men and women was duly selected, impaneled and sworn to try the issue of Defendant’s present sanity or insanity and after counsel for the Defendant declined to present any testimony with reference to the sanity or insanity of the Defendant, the State proceeded to present evidence thereon, after which the Defendant, Ruby, in person testified, at his own suggestion and request and over the objection of his counsel, and after having received the written charge of the Court as to the law applicable to the case, the jury retired in charge of the proper officer, and after deliberation returned into Court the following verdict:
“ ‘We, the jury, find the Defendant at the present time is sane.’
/s/ Aubrey Wayne Teer’
“It is therefore ordered, adjudged and decreed by the Court that the said Jack Ruby is presently sane.
/s/ Louis T. Holland
LOUIS T. HOLLAND, JUDGE
PRESIDING”
The affidavit of Jack Ruby dated June 13, 1966, reads:
“THE STATE OF TEXAS 1 “COUNTY OF DALLAS J
“I, Jack Ruby, having this day been declared legally sane, do hereby reaffirm that I have and do discharge Joe Tona-hill and, if I have not already done so, do discharge Emmett C. Colvin, Jr. Neither is authorized to represent me in any capacity in any court.
“The attorneys who I desire to represent me are Phil Burleson, Sam Houston Clinton, Jr., Sol Dann, William M. Kunst-ler, Elmer Gertz and their associates. They are hereby authorized to represent me in all proceedings and matters in which I am involved, particularly on appeal of my conviction and on the habeas corpus matter.”

On June 15, 1966, the following order was entered:

“The above entitled and numbered cause on appeal before this Court is set for submission on brief and oral argument for 9:30 A.M. on Friday, June 24, 1966.
“Prior to said submission appellant will designate in writing the attorneys authorized to represent him in this court and said counsel will designate which of them will use the time allowed for oral argument. A similar list of counsel who will argue for the state shall be filed.
“Pursuant to Rule VII of the Rules of this Court the time allowed for oral argument is extended to one hour and thirty-minutes opening and thirty minutes rejoinder.
“In addition to the above time allocated to appellant, all counsel appearing of record- after the giving of notice of appeal will be permitted to appear and present argument not to exceed thirty minutes as friends of the Court. The same additional time will be allotted to designated representatives of the State.
“Additional briefs may be filed at any time prior to August 1, 1966. The State will be allowed twenty days to reply to the last brief filed in behalf of appellant.
“It is so ordered.
/s/ W. T. McDonald, P. J.
/s/ W. A. Morrison, J.
"DISSENT
“To that portion of the order setting this appeal for submission and oral argument which provides that all counsel appearing of record after giving notice of appeal will be permitted to present oral argument, I respectfully dissent.
/s/ K. K. Woodley
Woodley, Judge.”

The Amicus Curiae Brief filed prior to March 10, 1965, by Counsel Melvin M. Belli of the California Bar, who was leading counsel for Jack Ruby at his trial, correctly states: “I have applied for, and have graciously been given permission by this Honorable Court to file an amicus curiae brief for Jack Ruby, defendant and appellant. I am specifically advised this does not include the right to appear and argue the cause upon its calling, since I am no longer counsel of record.”

While the writer sees no denial of appellant’s constitutional right to counsel of his choice, and does not agree with the contention that the sanity hearing was void or deprived appellant of any right, he remains convinced that there was no reasonable basis for inviting those who had been appellant’s trial counsel but had been dismissed after notice of appeal to appear and present oral argument as friends of the Court after having denied a like right to his other counsel who withdrew or were “fired” before notice of appeal.

In view of another trial and future trials, it should also be clearly understood that the majority does not hold that a juror who saw the shooting of the deceased on television is, for that reason alone, disqualified or subject to challenge for cause under Art. 616(6) C.C.P. (now Art. 35.16 C.C.P.1965) as being “a witness in the case.”


author: BELL, Chief Justice.

text:
    Jerry NEIMEYER, Indv., etc., et al., Appellants, v. Wade R. TURNER, Appellee.
    No. 14836.
    Court of Civil Appeals of Texas. Houston.
    Oct. 20, 1966.

      Martin & Knox, Jack R. Martin, Houston, for appellants.
    Tom Alexander, Butler, Binion, Rice, Cook & Knapp, Houston, Jonathan Day, Houston, of counsel, for appellee.
   BELL, Chief Justice.

This is a case in which appellant, Jerry Neimeyer, sued for himself to recover damages resulting from personal injuries suffered by his wife in an automobile collision, for property damage to his automobile and for hospital and medical expense. He also sued as next friend for his minor daughter to recover damages for personal injuries suffered by her.

The court submitted issues inquiring as to whether appellee failed to keep a proper lookout or failed to make proper application of his brakes. The jury answered these issues favorably to the appellee. The related proximate cause issues were not answered because conditionally submitted. The jury answered that the collision was the result of an unavoidable accident. On such verdict the Court rendered judgment in favor of appellee that appellants take nothing.

Here the appellants assert the court erred in not granting a new trial because the jury’s answer to each issue was so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

This contention requires that we weigh all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Mrs. Neimeyer, who was driving her automobile, stopped in obedience to a red signal light on Almeda Road in the Almeda community. She looked in the rear-view mirror as she was coming to a stop and saw appellee’s automobile some distance behind her. He was at such a distance that she considered there was no danger of a collision and nothing else indicated such. It had been raining and the streets were wet. It had again commenced to rain and she began to roll up her car window when her car was hit from the rear by the car driven by appellee. She had been in a completely stopped position for a few seconds before the collision. The force of the collision knocked her car into the intersection but she could not say how far. She could describe nothing further concerning the events leading to the collision.

Mr. Turner, the appellee, was the only other witness giving evidence as to how the collision occurred, except Lynda Nei-meyer, the fourteen year old daughter, who testified only that the Neimeyer automobile had been in a stopped position at the red light for a few seconds before the collision. Mr. Turner had been behind the Neimeyer car for some time. It had been raining and the streets were slick. He noticed the Neimeyer car stopped at the red light when he was about 300 yards behind it. He took his foot off of the accelerator at that point. He at the time was going about 35 miles per hour. The speed limit was 40 miles per hour. He slowed down gradually until he was going about 8 miles per hour when he was still about 100 yards behind the Neimeyers. He had applied his brakes lightly in the process of slowing down. When he got about 25 feet behind the Neimeyer car he applied his brakes fully and his car wheels locked and his car slid into the Neimeyer car. At this time he was looking at the speedometer and it showed he was going 5 miles per hour. He tried to turn his wheels to the right so his car would go to the right of the Neimeyers. This effort was unsuccessful because his car was sliding on the wet street. After the collision he noticed that at the point where he last applied his brakes there was a thin film of slush on the road. He had not seen it before the collision.

There is evidence showing considerable damage to the rear of the Neimeyer car. However, Mrs. Neimeyer was able to drive her car home and Mr. Turner continued his journey. We need not notice the details of the damage or the injuries sustained by Mrs. Neimeyer and Lynda. It suffices to say that we have read all of the testimony and have considered all of it in reaching our conclusion.

We cannot say that the answer of the jury to any issue is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. ,

Affirmed.


author: GRISSOM, Chief Justice.

text:
    Ivan Jack WILSON, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 4008.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 23, 1966.
    Rehearing Denied Oct. 28, 1966.

      Phelps, Kilgarlin & Snell, Houston, for appellant.
    McGregor, Sewell, Junell & Riggs, Houston, for appellee.
   GRISSOM, Chief Justice.

This is an appeal by a claimant in a Workman’s Compensation case from an unsatisfactory judgment against his employer’s insurance carrier. Claimant contended that, in addition to an injury to his foot, for which he recovered, he received an injury to his back and neck. A jury found that his foot was injured but that he did not sustain an injury to his back or neck. The court rendered judgment on the verdict for the loss found to have been sustained as a result of the foot injury and the claimant has appealed.

Appellant’s first two points of error are that the court committed reversible error in sustaining defendant’s objection and refusing to permit him to prove that defendant’s counsel had (1) caused myelo-graphic films of plaintiff’s spine to be viewed by Dr. Wigby, a Houston radiologist, but had not called him to testify and (2) in directing plaintiff’s counsel not to comment thereon in his argument. Appellant contends that the issue as to whether plaintiff had a ruptured disc in his back was so highly controverted that he desired to show that defendant had, during the trial, caused Dr. Wigby to look at said pictures but had not called him to testify, so that plaintiff might argue to the jury that the testimony of Dr. Wigby would have been adverse to defendant’s position. Appellant says that such evidence was material and relevant, that it was pertinent to the dispute concerning whether appellant, in addition to a foot injury, suffered an injury to his back causing a protruding or herniated disc; that it must be concluded that the failure to call said doctor bore a logical connection, though but inferentially, that his testimony would have been unfavorable to defendant’s contention that he had no back injury. In this connection, it should, perhaps, be pointed out that in appellant’s bill of exception appellee’s counsel, as a witness, was further questioned and answered as follows:

“Q. You would call Dr. Wigby, would you not, if you thought he would help your case?
A. No, that is not true.”

Appellant says the record shows that said ruling, which deprived him of an opportunity to argue an inference that Dr. Wigby’s testimony would have been harmful to appellee, was reasonably calculated to cause and probably did cause rendition of an improper judgment. This is the controlling issue. Appellee’s counsel’s testimony that he would not have called said witness even if he had thought his testimony would help his case was neither questioned nor disputed and no explanation thereof was asked for. There was no effort to show that Dr. Wigby had an opinion that the films showed a back injury, or vice versa. Counsel’s testimony was that said doctor had not been paid and he did not expect him to be paid for looking at the films. The jury, of course, knew that Dr. Wigby had not been called. It is questioned whether it was material and admissible that appellee’s counsel caused said doctor to examine the films and, if both admissible and material, whether appellant has sustained his burden of showing that the court’s ruling was reasonably calculated to cause and probably did cause rendition of an improper judgment. We hold that appellant has not sustained that burden.

Our Supreme Court in Ault-man v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, settled any question that Texas Rule of Civil Procedure 434 applies to improper argument. It provides that no judgment shall be reversed unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment. It was there held that the question whether the error was reasonably calculated to cause and probably did cause rendition of an improper judgment must be determined “in the light of the whole record.” Considering the state of the evidence and viewing said question in the light of the whole record we conclude that appellant has not discharged his burden of showing reversible error. Our conclusion that reversible error is not shown is supported by the following authorities. In Dallas Railway & Terminal Company v. Oehler, 156 Tex. 488, 296 S.W.2d 757, 759, administrator Oehler’s decedent was hit by a street car at an intersection and died as a result. Immediately following the accident the car operator caused five passengers on the street car to fill out slips of paper and return to him giving their names and addresses. Defendant’s counsel was called as a witness by the plaintiff. He testified that he had said slips in his possession. He objected to producing them on the ground they were privileged. The objection was sustained. None of the passengers were called as witnesses. The plaintiff asserted such action constituted reversible error. The defendant contended that, in any event, the plaintiff had not discharged his burden of establishing that the rulings were reasonably calculated to cause and probably did cause rendition of an improper judgment so as to entitle him to a reversal under Rule 434. The court said that what the plaintiff hoped for was, to require that the names of the passengers be divulged so that they could he called as witnesses. Judge Calvert said that the ends of justice might have been better served by calling the passengers to the stand but as to that the court could not say for it had no way of knowing whether any of the passengers could have or would have given testimony of value. Here, the plaintiff did not want to call Dr. Wigby to the stand. Presumably, he could have done so. Plaintiff contends only that he should have been permitted to prove that defendant’s counsel caused Dr. Wigby to examine the films, so that plaintiff’s counsel could argue that the reason defendant did not call him was because his testimony would not have helped the defendant. The witness testified that he would not have called Dr. Wigby to the witness stand even if he thought he would help his case. As said by Judge Calvert, in the Oehler case, we have no way of knowing whether Dr. Wigby could have or would have given testimony of value.

Our Supreme Court said in Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298, 301:

“Before an error may be made the basis of reversing a trial court judgment the appellate court must be satisfied that the error complained of ‘was reasonably calculated to cause, and probably did cause the rendition of an improper judgment in the case.’ Reversal may not be predicated upon a simple showing that error occurred and that the jury returned a verdict in some respects favorable to the party the error was reasonably calculated to help. If it could, the further provision of Rules 434 and 503 that it must also appear that the error ‘probably did cause, the rendition of an improper judgment’ would be meaningless and pointless.
A determination of whether the error ‘probably did cause, the rendition of an improper judgment’ by influencing the jury to return a verdict it probably would not otherwise have returned is to be made from an examination of the record as a whole, City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860, 863, including the ‘state of the evidence.’ Lumbermen’s Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367, 370.”
Our Supreme Court in Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277, 281, again speaking through Chief Justice Calvert, stated the applicable rule as follows:
“To say that the conduct of counsel probably caused the rendition of an improper judgment we would first be compelled to conclude from a review of the record that but for that conduct the jury would probably have answered the issues in such fashion as to impose liability on the defendant. It is not enough to say that the jury might possibly have done so. Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596, 600.”

Appellant presents a third point to the effect that in perfecting his appeal he asked only for- the testimony directly pertinent to his points but that appellee required a complete statement of facts and that the cost of this additional evidence should be charged to appellee. The decisions quoted from above to the effect that in determining whether an error was reasonably calculated to cause and probably did cause rendition of an improper judgment, by influencing the jury to return a verdict it probably would not otherwise have returned, is required to be made from an examination of the “whole record” is decisive of the point. See Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298, 301. The fact that in determining the vital question presented we are required to examine the “whole record” and “look to the state of the evidence” answers appellant’s contention that appellee should be required to pay the cost of the additional testimony. The contention is overruled.

The judgment is affirmed.