source: Caselaw Access Project

author: CULVER, Justice.

license: Public Domain

text:
    GULF, COLORADO & SANTA FE RAILWAY CO., Petitioners, v. George H. BLISS et al., Respondents.
    No. A-9293.
    Supreme Court of Texas.
    May 8, 1963.
    Rehearing Denied June 26, 1963.

      McLeod, Mills, Shirley & Alexander, Galveston, Chilton O’Brien, Beaumont, for petitioners.
    George E. Murphy, City Atty., King, Sharfstein & Rienstra, Beaumont, for respondents.
   CULVER, Justice.

George Bliss and others brought this action against Gulf, Colorado & Santa Fe Railway Company and the City of Beaumont for damages to their residential properties caused by flood waters. They alleged in their Second Amended Original Petition that, by reason of certain negligent acts and omissions on the part of Santa Fe, together with acts on the part of the City of Beaumont, flood water was caused to be diverted into their homes and thus brought about the damages complained of. City of Beaumont in its answer denied that it was in any wise negligent and alleged that whatever damages were sustained by the plaintiffs were caused solely by the acts, conduct and omissions of Santa Fe and prayed that in the event plaintiffs recover against the City that the City have indemnity or contribution against Santa Fe. Likewise Santa Fe denied plaintiffs’ allegations of negligence and asserted that certain acts on the part of the City of Beaumont constituted negligence and that such negligence was the sole proximate cause of the damages to plaintiffs’ homes and the contents thereof, and prayed that it have judgment over and against the City of Beaumont for the full amount of any recovery against Santa Fe or in the alternative for contribution.

The jury found that Santa Fe did not fail to maintain the necessary culverts as required by the natural lay of the land for necessary drainage, but did find that Santa Fe was negligent in permitting old piling and timbers to remain under its culvert and that this negligence was a proximate cause of the damage.

So far as the City was concerned, the jury found that it caused to be collected upstream from the railway culvert a larger quantity of water than would have been collected by the natural lay of the land and that such act was negligence. The jury also found that the City knew and Santa Fe did not know and City failed to inform Santa Fe that the quantity of water which would be collected following an intense and heavy rainfall would exceed the capacity of the railway culvert and that such failure to so inform was negligence. The jury found that neither act of negligence was the sole proximate cause, no corollary issue of proximate cause having been submitted.

The trial court entered judgment for the plaintiffs against Santa Fe but denied them any recovery against the City of Beaumont. The Court also denied Santa Fe any recovery against the City of Beaumont on it* cross-action by way of indemnity or contribution. Santa Fe appealed, without filing motion for new trial, its motion for judgment on the verdict having been overruled. Rule 324, Rules of Civil Procedure. The Court of Civil Appeals affirmed the judgment of the trial court. 363 S.W.2d 343.

The only question presented here for decision, is whether Santa Fe is entitled to indemnity or, in the alternative, to contribution from the City of Beaumont. We agree with the Court of Civil Appeals that Santa Fe is not entitled to collect indemnity from the City. The test laid down in Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563, is that for one tort-feasor to be allowed recovery of indemnity against another it must be predicated upon a consideration as to whether the tort-feasor as plaintiff suing the other in tort would be entitled to recover. According to the record we believe Santa Fe does not meet that test. Santa Fe contends that as between it and the City a duty was created in favor of Santa Fe because of the existing licensee status. That has reference to the permission granted by Santa Fe to construct, maintain and use a drainage ditch on a portion of Santa Fe’s right-of-way. The duty was, says Santa Fe, to perform the drainage work with reasonable care and because of the failure on the part of the City in that respect Santa Fe was entitled to indemnity, citing Panhandle Gravel Co. v. Wilson, Tex.Civ.App., wr. ref. n. r. e., 248 S.W.2d 799. Additionally, Santa Fe urges that a duty was created in its favor because of the City’s superior knowledge and ability to foresee and prevent the flood damage, since the jury found that the City knew, and that Santa Fe did not know, that changes made by the City in the natural flow of the water following an unusually heavy rainfall would exceed the capacity of Santa Fe’s culvert, and that City was negligent in failing to so inform Santa Fe. This theory would have considerable weight were it not for the fact that Santa Fe was found to be negligent in permitting its culvert to be blocked with old pilings and timbers which constituted a proximate cause of the damage. We agree with the Court of Civil Appeals that Santa Fe and the City were in pari delicto and equally blameworthy in causing the flooding of the plaintiffs’ homes. We, therefore, hold that Santa Fe was not entitled to be indemnified.

Under Art. 2212, Vernon’s Annotated Civil Statutes, enforced contribution is allowed among joint tort-feasors who are in pari delicto as to each other. Austin Road Co. v. Pope, supra.

The Court of Civil Appeals, although finding that Santa Fe and the City were in pari delicto, nevertheless concluded that since Santa Fe pleaded that the City’s acts of negligence were the sole proximate cause of plaintiffs’ damage and failed to plead that they merely proximately caused the damage, the plea for contribution against the City must be denied. In this respect we believe the Court of Civil Appeals was in error.

Our holding will entail a rather extensive discussion of the pleadings and motions filed by the parties and the rulings of the trial court thereon. The case went to trial on the 6th day of July, 1959, on Plaintiffs’ Second Amended Original Petition. The plaintiffs complained of both the Santa Fe and the City asserting that Santa Fe was guilty of certain acts of negligence and as to the City alleged:

“That the incident made the basis of this suit resulted from the negligence of the defendant, the City of Beaumont, in some one or more of the following particulars, to wit:
“(a) In failing to dig the drainage ditch flowing generally northerly and southerly running parallel with the said railroad track at a deeper depth under the facts and circumstances.
“(b) In failing to give a greater fall to the ditch coming from the north and running parallel to said railroad embankment than the other two ditches converging at the trestle in question.
“That each and all of the above and foregoing acts either of omission or commission constituted negligence and amounted to negligence, and were each and all a proximate cause of the injuries and damages made the basis of this suit.”
They further pleaded:
“That by reason of the negligent acts and omissions on the part of the defendant, Gulf, Colorado and Santa Fe Railway Company, together with the acts on the part of the defendant, the City of Beaumont, that such surface or flood water was caused to be diverted into the homes of the plaintiffs herein, and that the floors and foundations of said homes, as well as their furniture, fixtures and other items in and about the plaintiffs’ homes were damaged in the following particulars, to wit:”

Throughout the petition the plaintiffs alleged that the negligence of the defendants proximately caused the damage and prayed that they have judgment against the defendants either jointly or severally for their damage. In its cross-action against the City, Santa Fe pleaded that the drainage facilities and ditches constructed by the City negligently caused a greater quantity of water to collect than would have been accumulated by the natural lay of the land and that such negligence was the sole proximate cause of the damage. Santa Fe also alleged that the City knew and Santa Fe did not know and the City failed to inform it that the quantity of water which would be collected would exceed the capacity of the railway culvert; that such failure, to inform was negligence and the sole proximate cause of the damage.

On July 13th after the trial had been in progress for approximately a week, the plaintiffs with leave filed a trial amendment in which they adopted and set out substantially the same allegations of negligence alleged by Santa Fe against the City, asserting that the negligence proximately caused the damage sustained by them. Four days later Santa Fe moved for leave to file a trial amendment by interlining in its answer and cross-action the words “and proximate cause” after the words “sole proximate cause”. This motion was overruled. Incidentally, the trial was begun on the 6th day of July and the verdict of the jury was received August 1st. While the trial court’s action in respect to granting this character of leave is largely discretionary, we fail to perceive any valid objection to the filing of Santa Fe’s motion in view of the court’s action in granting leave to the plaintiffs.

On the 29th day of July, after all the evidence had been presented and all parties had rested, the plaintiffs requested permission to amend their trial amendment previously filed so as to assert against the City that the negligence charged therein was only the sole proximate cause of the damage suffered by the plaintiffs and to remove from the trial amendment the allegations that the acts of the City proximately caused the damage. Permission to so amend was granted over Santa Fe’s objection. Thereafter Santa Fe unsuccessfully moved again for permission to include in its plea the words “proximately caused”.

The City contends that the finding of negligence in the two respects on the part of the City is of no avail to Santa Fe in its plea for contribution since there was no express finding that the negligence in either case was the proximate cause of the damage sustained by the plaintiffs. However, there were issues submitted as to whether the damages sustained by each plaintiff were proximately caused by the negligence of the City of Beaumont and those issues were answered in the affirmative. The only objection leveled to those issues by the City was that of the lack of pleadings and evidence to support the same.

The City now says that specific issues control over general issues and a general finding by the jury that damages were proximately caused by the negligence of a defendant does not supply a failure by the jury to find that the defendant was guilty of a specific act of negligence which was a proximate cause of the damage. In support of this contention they cite Garza v. San Antonio Transit Company, Tex.Civ.App., 180 S.W.2d 1006, wr. ref. w. o. m., and Benson v. Missouri K. & T. Ry. Co., Tex.Civ. App., 200 S.W.2d 233. But these two cases are speaking of conflicts. In Garza the jury found that the act of the bus driver was not negligent, but in answer to the issue inquiring as to the damages sustained as a proximate cause of the negligence, if any, the jury found a certain amount of money. In that case the court held that where the special issue on negligence is answered against the plaintiff the answer to the general issue on damages becomes immaterial and hence no conflict. In the case here no conflict appears. The jury found that the City was guilty of negligence, hence there can be no misunderstanding about the matter.

The City also says that the jury, in answering these issues, might well have believed that the City was negligent in some other respect and not as to the negligence found by them. A sufficient answer to this contention is that no objection was leveled to the issue on that score, and, secondly, there is no reason to assume that the jury had any negligent acts in mind except those which had been inquired about and which they had answered against the City.

The theory of the City is that since the railroad only pleaded that the acts of the City were the sole proximate cause, it was prépared to defend only against Santa Fe’s allegations that the sole cause- of the flooding of-the plaintiffs’ homes was the City’s failure to inform it of the fact that the quantity of water which would be collected at the opening beneath the railroad bridge following an intense and heavy rain, would exceed the capacity of the said opening to carry such water, and that the City’s task in defending against Santa Fe’s charges of sole proximate cause was much less burdensome than it would have been if Santa Fe had alleged that such act and omission was not only the sole cause but as well a proximate cause of the flooding.

There is some merit in the City’s argument but we think it is more theoretical than practical. In the first place up until the close of the testimony the City was confronted by the trial amendment of the plaintiffs which made the same allegations of negligence as did the Railroad Company and charged that these acts were the proximate cause of the damages sustained. This trial amendment was filed some sixteen days before the close of the evidence. Surely within this length of time they could have prepared to present whatever testimony was available to defend against these charges of negligence and proximate cause. There is no showing or even claim that they were unable to do so. The Railroad, in addition to pleading that these acts were negligently committed by the City, also put the City on notice that they were asking for contribution in the event the jury returned a verdict favorably to the plaintiffs.

It is a general rule, so well established as to need no citation of authority, that the petition will be construed as favorably as possible for the pleader. The court will look to the pleader’s intendment and the pleading will be upheld even if some element of a cause of action has not been specifically alleged. Every fact will be supplied that can .reasonably be inferred from what is specifically stated. In our opinion it could reasonably be inferred from Santa Fe’s cross-action that it was charging the City with acts of negligence that proximately caused the injuries to the plaintiffs.

In support of its holding that Santa Fe was bound by its specific allegations of sole cause and that its cross-action amounted to no pleading at all for contribution, the Court of Civil Appeals cites only the case of Fenley et al. v. Ogletree et al., Tex.Civ.App., 277 S.W.2d 135, wr. ref. n. r. e. The question in that case was whether a final judgment had been rendered by the trial court though it made no express disposition of an asserted cross-action for judgment over and against the other defendant. The Court held that the pleading only prayed for that relief and stated neither a cause of action nor the basis of one, nor was any evidence introduced in support thereof. That holding seems to have little bearing on the question presented here which is, whether the pleading that the acts of negligence constituted the sole proximate cause, coupled with a prayer for contribution will afford by implication a charge that the negligent acts were also the proximate cause of the damage. Under all the facts and circumstances in this case we are disposed to answer that question in the affirmative.

Before a negligent act may be said to be the sole proximate cause of an injury it must first be a proximate cause, since the whole includes all of its parts. While we find no case squarely in point, there are decisions which are helpful and somewhat analogous. In Rodriquez v. Zavala, Tex. Civ.App., 279 S.W.2d 604, no writ history, the court held the defendant’s complaint, namely, that the plaintiff alleged sole proximate cause, but proved proximate cause only, to be without merit since the pleading gave notice of an ordinary accident, stated three separate acts of negligence, generally alleged proximate cause and specially alleged sole proximate cause.

Williams v. Zang, (Com.App.) 279 S.W. 815, is authority for the proposition that if the petition seeks to recover upon the theory that the negligence of the defendant was the sole proximate cause of the plaintiff’s injuries, it is not a failure of proof nor a variance to permit recovery upon proof that such negligence proximately contributed along with the negligence of another to produce the plaintiff’s injuries.

In Texas General Indemnity Co. v. Savell, Tex.Civ.App., 348 S.W.2d 202, no writ history, the plaintiff argued that since the defendant pleaded a prior injury as the sole cause of plaintiff’s incapacity, that pleading would not support an issue as to partial cause. The court overruled that contention that the statement that a pleading of the greater would include the lesser. Of course it has always been the rule since the adoption of the workmen’s compensation law that a claimant is not confined to a pleading of total and permanent disability but is allowed under that pleading to prove and recover partial disability without having expressly pleaded for that relief. Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280.

Now the plaintiff in Texas General Indemnity v. Saveli, could with reason argue that all he had to show to prevail over the sole cause defense was to show that the present injury did in part contribute to the disability and that he was not prepared to defend against the defense of partial cause which had not been pleaded. Likewise in Southern v. Boswell the defendant could argue that since the plaintiff only pleaded total and permanent disability if it were shown that the plaintiff was only temporarily or partially disabled a complete defense would be established. True these are compensation cases but even so we do not perceive why the principle involved would not apply equally to the situation here of a tort case. The workmen’s compensation statute does require that the law be construed liberally in favor of the claimant but that is not to say that the .rules of pleading and procedure are to be applied differently. The Rules of Civil Procedure are employed uniformly in all civil cases.

The judgments of the trial court and the Court of Civil Appeals are here reversed in so far as they fail to render judgment against both Gulf, Colorado & Santa Fe Railway and the City of Beaumont as joint tort-feasors entitled on the payment of the judgment awarded in this case, to contribution, in accordance with the provisions of

Art. 2212 of Vernon’s Annotated Civil Statutes. Otherwise the judgments are affirmed. The cause is remanded to the trial court for the entry of a judgment in accordance with the above holding.


author: WOODLEY, Presiding Judge. DICE, Commissioner.

text:
    Ruth COX, Alias Wenona B. Martin, Appellant, v. The STATE of Texas, Appellee.
    No. 35584.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    Rehearing Denied May 29, 1963.
    Second Rehearing Denied June 26, 1963.

      Charles William Tessmer (On Appeal Only), Dallas, for appellant.
    Henry Wade, Dist. Atty., John Rogers, Frank Watts, and Emmett Colvin, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is passing a forged instrument in writing; the punishment, 4 years.

The office of Dr. A. F. Hopkins, D.V.M. at the Skillman Animal Clinic, was burglarized and a series of personalized blank checks numbered 1813 through 1854 were stolen.

The operator’s license of Wenona B. Martin was stolen from her purse.

Check No. 1827 of the series of checks was filled in so as to make it a check payable to Wenona B. Martin for salary in the sum of $93.86, bearing the signature “Dr. A. F. Hopkins” under the printed name “Skillman Animal Clinic”.

The state introduced evidence showing that the appellant, wearing a nurse’s uniform, passed this check No. 1827 to Shirley Stubbs, an employee at a Safeway Store in Dallas, identifying herself by the stolen operator’s license as Wenona B. Martin, the name of the payee and endorser of the check, and received from Shirley Stubbs $93.86 in money.

Proof was made that Dr. Hopkins did not sign the check or authorize anyone to sign it, and that it was not paid when presented to the bank on which it was drawn.

The appellant, testifying in her own behalf, denied that she cashed the check or forged it.

The state offered for the purpose of proving intent to defraud check No. 1836 of the series of stolen checks, and introduced evidence showing that it had been filled in and forged in the same manner as check No. 1827, and cashed in the same manner at the A & P Food Store on Skillman, in Dallas, by the appellant. She denied having filled out, signed or passed this check.

Check No. 1835 of the series was filled in and forged in the identical manner. The evidence shows that appellant presented this check to Betty Jean Berry, cashier at Colbert’s Department Store, and asked her if she could cash her payroll check. The cashier declined to take the check, but offered to take the appellant’s personal check for the amount of the merchandise she had selected, and the appellant signed the name “Wenona B. Martin” to a bank-draft in the sum of $16.30, identifying herself as before by Wenona B. Martin’s operator’s license.

The appellant denied that she attempted to pass check No. 1835 or that she was the person who was in Colbert’s or who signed and passed the bankdraft.

Check No. 1835 was also presented to Mrs. Beavers at Margo’s LaMode Store about closing time. Dr. Hopkins was contacted by telephone, police were called and the appellant was taken into custody.

The appellant admitted having attempted to cash this check at Margo’s but testified that it was given to her by Tina Bridges who had endorsed it and asked her to cash it for her. Her testimony was that this was the only one of the checks she had attempted to pass, and that she did not pass “any check whatever”, and that so far as she knew the check she attempted to pass was good.

By informal bill of exception complaint is made regarding other checks of the series of stolen checks which were exhibited to the appellant upon her cross-examination, and about which she was examined and denied any knowledge of them or of their number.

These other checks were admissible in evidence had they been properly identified. However, they were admitted over objection that a proper foundation had not been laid for their introduction (without having been identified), and the appellant was requested to read the numbers thereon, and she did so.

Before the examination proceeded further appellant’s counsel’s motion to exclude the checks from evidence was sustained and the jury was instructed to disregard the testimony “with regard to these checks”.

There was already evidence before the jury as to the serial numbers of the checks stolen from the doctor’s office, and the jury received no further information in regard to them. We see no error which would warrant reversal.

In rebuttal the state called Fred Wayne McKell who testified that he drove the appellant to different shopping centers and she would take a check into the store and come out with money; that the checks were similar to the check described in the indictment and that the money was divided between Bobby Davis, the appellant and him, he receiving around $200. The appellant denied that she was riding with McKell.

The jury rejected appellant’s claim of duress.

The remaining claims for reversal relate to the court’s charge.

The complaints to the charge are not before us for consideration.

The record contains what purports to be “Exceptions and Objections to the Court’s charge.” It is apparent that the objections were presented orally and later reduced to writing and filed. The opening paragraph reads:

“Now comes the defendant and takes her exceptions to the Court’s charge prior to the time the charge has been read to the jury and with the understanding that it may he reduced to writing and filed as of this time.”

The objections are signed by counsel who did not represent the defendant at the trial, but is her counsel on appeal.

The trial court’s certification reads: “The above and foregoing objections and exceptions to the Court’s charge are considered filed as of the time prior to the charge being presented to the jury.”

The state challenges the consideration of the complaints to the charge of the court and directs attention to Art. 658 Vernon’s Ann.C.C.P. requiring that objections to the charge be presented in writing before the charge is read to the jury, and to the holdings of this Court in Templeton v. State, 152 Tex.Cr.R. 121, 210 S.W.2d 168; Cedillo v. State, 165 Tex.Cr.R. 371, 307 S.W.2d 267; and Gonzalez v. State, 164 Tex.Cr.R. 64, 297 S.W.2d 144.

The appellant argues that the record before us should be considered as showing that the objections and exceptions to the Court’s charge were filed on the date of the trial and that the trial court having acquiesced in allowing the objections to be dictated to the court reporter for later transcription, we should consider her objections.

We re-affirm our recommendations that the procedure set out in the statutes be strictly complied with.

We need not rest our holding that the complaints to the court’s charge are not before us on the fact that the objections were not in writing.

It is well settled that in order to complain of the overruling of objections to the court’s charge the record must show the court’s ruling on the objections and that exception to such ruling was reserved. Medlock v. State, Tex.Cr.App., 356 S.W.2d 312, and cases cited.

The only action the trial court is shown to have taken on appellant’s objections to the charge was his certification that the objections were to be considered filed before the charge was read to the jury. The appellant had no reason to except to this ruling and he did not.

The court’s certification was not a ruling on the objections. If so, there is no showing that the appellant reserved an exception to such ruling.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that the testimony admitted on her cross-examination, and later withdrawn by the court, with reference to the other checks of the series of stolen checks, constituted reversible error because the jury received not only information regarding their serial number but information that they were payable to and endorsed by Wenona M. Martin — which was the name of the payee and endorser of the check, No. 1827, passed to Safeway Store, as well as the name on the driver’s license seized from appellant — and the jury also received information that the address appearing on> some of the checks was the same address which appeared on the Safeway check and other checks admitted in evidence.

While the name Wenona B. Martin and certain addresses similar to those on the checks admitted into evidence were referred to, we remain convinced that in view of the court’s instruction to disregard the testimony and other testimony properly admitted in the record with reference to checks similar to those described in the indictment, no reversible error is shown.

Appellant Urges for the first time, in her motion for rehearing, that the court erred in permitting the state’s witness Wenona B. Martin to testify that appellant’s reputation for being a peaceable and law-abiding citizen was bad. Appellant insists that, in view of the witness’s admission that she did not know appellant personally, she was not qualified to speak with reference to her reputation. Appellant also insists that the proper predicate was not laid, because the state’s inquiry of the witness was with reference to her knowledge of appellant’s reputation in the community and not as to her general reputation.

The contention is also made that the witness’s means of knowledge, as shown by her cross-examination, was insufficient to permit her to base an answer that appellant’s reputation was bad.

The witness, before stating on direct examination that appellant’s reputation was bad, testified that she knew her reputation in the community where she resided. On cross-examination she stated that she had discussed appellant’s reputation with two named individuals.

In the early case of Davis v. State, 23 S.W. 684, this court held that it is not necessary that one be personally acquainted with another in order to speak as to his or her general reputation and that if the witness knows of such reputation his testimony is admissible.

While the inquiry should have been limited to appellant’s general reputation in the community, such was not the ground of appellant’s objection to the testimony, the objection being that the witness had testified she did not know appellant. No objection was made by appellant to the witness’s testimony on the ground that her means of knowledge was insufficient upon which to base her statement that appellant’s reputation was bad.

Appellant also urges as reversible error, for the first time, on rehearing, the court’s action in permitting state’s counsel to bring out on cross-examination of her sister, Ester Shivers, that the witness had been divorced from one Willie O’Dell Mays, some three or four weeks before the trial.

In support of her contention, appellant relies upon the decisions of this court, primarily in prosecutions for rape, that proof of prior marriages and divorces of the accused is not admissible unless such evidence tends to solve some disputed issue in the case.

While in Burnett v. State, 162 Tex.Cr.R. 1, 280 S.W.2d 260, we held it not error to exclude similar testimony, we have concluded that its admission in the present case— standing alone — does not constitute reversible error. Henderson v. State, 49 Tex.Cr. R. 269, 91 S.W. 569.

Remaining convinced that a proper disposition was made of the case on original submission, and no reversible error appearing, the motion for rehearing is overruled.

Opinion approved by the Court.

MORRISON, Judge (dissenting).

ON APPELLANT’S MOTION FOR REHEARING

As stated in the majority opinion on rehearing, the question of the cross-examination of appellant’s sister is raised by brief and in argument for the first time. I am convinced that reversible error is reflected thereby. Her sister was a principal defense witness, and she was asked and required to answer over objection that she had recently been divorced. That question has recently been discussed by this Court in Burnett v. State, 162 Tex.Cr.R. 1, 280 S.W.2d 260. There, we held that the trial court correctly excluded exactly the same testimony which the majority now hold not to constitute reversible error. The inconsistency is apparent. If the trial court ruled correctly in Burnett, then the court erred in this case. Sample v. State, 158 Tex.Cr.R. 200, 254 S.W.2d 401, and the cases there cited support the position I here maintain since the proof of the divorce did not tend to solve any disputed issue in the case.

I respectfully dissent.


author: DICE, Commissioner.

text:
    John Earnest LUCAS, Appellant, v. The STATE of Texas, Appellee.
    No. 35820.
    Court of Criminal Appeals of Texas.
    June 5, 1963.
    Eehearing Denied June 29, 1963.

      Grady Hight, of Love & Hight, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Albert F. Fick, Jr., Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is robbery, with a prior conviction for an offense of like character alleged for enhancement; the punishment, life imprisonment.

The state’s proof shows that on the day in question three men wearing plastic Hal-lowe’en-type masks- — -two of whom were armed with pistols — entered a Safeway Store at 3601 Avenue E in the city of Fort Worth, around 8:20 o’clock, p. m., and after forcing D. H. Zettler, the store manager, to place a large sum of money in a bag, fled from the building with the money. The total amount of money taken was $2,207, consisting of a large quantity of pennies, nickels, dimes, and quarters, and bills in denominations up to $20. Two lay-away purchase slips were also placed in the bag by the manager, which bag was taken away by the bandits.

Around 9 o’clock, p. m., Detective E. R. Stewart and other officers went to an apartment house some two or three miles from the scene of the robbery. One of the officers had a police dog with him. The building consisted of four apartments, one being numbered 740 Woodrow Street. While the officers were inspecting a Studebaker automobile, parked near the building, which appellant had been seen to drive, one James Parrott came to the corner of the building and then fled. Some of the officers gave chase but were unable to capture him. During the chase, Parrott fell to the ground, and when Sgt. Cox arrived at the spot he (Cox) gathered up $190.80 in coins which were strewn about the street.

While Officer Stewart and his partner were trying to arouse the occupants of the apartment designated as 740 Woodrow Street, one Bobby Lott came to the door and out of the apartment, where he was taken into custody.

Shortly thereafter, the appellant and two women came out of the apartment and were taken into custody. Appellant was handcuffed, searched, and the sum of $625 taken fro-m his person.

The officers then asked appellant if there was anyone else in the apartment, to which he replied, “No,” and when the officers told him to be sure because they did not want to put the police dog in on anyone, appellant stated, “Go look for yourself.” Thereupon, Detective Stewart and Sgt. Cox went inside the apartment and when Sgt. Cox went upstairs he found a large amount of money lying in full view on the floor and in a drawer on top of a dresser. Thirty-eight one dollar bills were found on the floor and two hundred one dollar bills in the drawer. A lay-away ticket was also found on the floor, which was identified by the store manager as one of the tickets which he placed in the bag at the time of the robbery.

The apartment was then locked and appellant was taken to jail by the officers. Later in the night appellant was told by the officers that they wanted to return to the apartment to see if they had overlooked anything. Appellant stated that he wanted to go with them so that he could change his shoes and get some cigarettes. Around midnight he returned to the apartment with the officers, where he opened the door with his key and admitted them inside.

Searching the apartment on this occasion, the officers found in a space in the wall a second lay-away ticket also identified by the store manager as coming from the store, a brown bag, some cotton gloves, a brown cap without a bill, a plastic mask, a .45 caliber pistol, and $293 in money.

The following day while appellant was in custody, Rev. Everett E. Morris, the landlord and owner of the apartment, admitted himself to the apartment to unstop a sewer line and found lodged in a trap beneath the commode some plastic material consisting of two Hallowe’en-type masks, which he turned over to the police.

Proof was made of the appellant’s prior alleged conviction.

Appellant did not testify but called one witness, who testified, outside the presence and hearing of the jury, in support of his contention that he was the lessor of the apartment in question.

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

We find the evidence sufficient to sustain the conviction.

Appellant’s primary contention on appeal is that the searches of the apartment by the arresting officers without a search warrant were unlawful and the fruits thereof were improperly admitted in evidence.

Under the record as made in the trial court, we find no error in the court’s action in admitting before the jury the evidence showing the searches of the apartment and the fruits thereof.

An issue was made as to appellant’s possession and control of the apartment, and evidence was submitted to the court on such issue outside of the presence and hearing of the jury. No effort was made by appellant to present such issue to the jury for their determination.

Rev. Morris, the aforesaid owner of the building, upon being called as a witness by the state, testified that he rented the apartment — some three weeks before the appellant’s arrest — to a man by the name of Earl Adams and that he did not see or recognize the man in the courtroom. He further stated that after he rented the apartment to Adams he collected the rent from a woman who lived in the apartment and that he did not know anyone by the name of John Lucas.

Leonard Dale Collins, called as a witness by the appellant, testified that in the month before the offense was committed he had taken appellant to introduce him to Rev. Morris, for the purpose of renting the apartment; that he had visited appellant once shortly thereafter at the apartment; but that he did not know whether he was still occupying or living there at the time of his arrest.

The trial court was warranted, under the testimony, in concluding that appellant did not occupy and control the apartment at the time it was searched.

If, as contended by appellant, he was in control of the premises as a tenant, the evidence shows that warrants for the arrest of the appellant for various felonies were outstanding and the first entry into the apartment by the officers was, with his authority, to look for other people. A valid arrest authorizes the search of the place where the arrest occurs. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668. The officers, having appellant’s permission to enter the apartment, were not trespassers and their removal of the articles found therein, which tended to connect him with the robbery, was not unlawful. Traylor v. State, 111 Tex.Cr.R. 58, 11 S.W.2d 318; Turner v. State, 119 Tex. Cr.R. 323, 45 S.W.2d 205. The fact that appellant was under arrest when he authorized them to enter would not vítate his consent. Henderson v. State, Tex.Cr.App., 353 S.W.2d 226. We do not agree that because the officers stated they did not want to take the police dog inside if someone were in the apartment that the permission to search was shown to have been gained by coercion. Appellant knew that no one was in the apartment at that time.

As to the second entry into the apartment around midnight and search by the officers, the proof shows that before they entered the appellant returned with them, after having expressed his desire to do so, and produced a key which he used in unlocking the door, and admitted them inside. His actions show consent to the search. Munoz v. State, 155 Tex.Cr.R. 223, 233 S.W.2d 494, and Cameron v. State, Tex.Cr.App., 346 S.W.2d 845.

Appellant’s obj ection to the admission in evidence of the two plastic masks found in the apartment by the landlord on the day after his arrest was that there was no connection between the exhibits offered and the offense for which he was on trial. Under the record, such objection was without merit. Nor do we find any merit in appellant’s objection to the landlord’s testimony relative to finding the masks, on the ground that no probable cause was shown for his entering the apartment. The landlord testified that the occasion for his going into the apartment was a call he received from a tenant in an adjoining apartment, “No. 738,” reporting a stopped sewer line. He further testified that the sewage from the commodes in both apartments flowed into the same main line and that after he had cleared the trouble in the adjoining apartment he went into the apartment at 740 Woodrow, as was his custom, to check the line in that apartment.

Complaint is made to the court’s action in permitting Officer Stewart to testify relative to flight from the scene by the man named Parrott, over appellant’s objection that such was hearsay and actions by a third person outside of appellant’s presence. Officer Stewart was clearly relating facts within his personal knowledge from what he observed — which was not hearsay. 24 Tex.Jur.2d, Sec. 561, pages 61-65. The actions of Parrott in fleeing from the scene was also a part of the res gestae of appellant’s arrest. Lemley v. State, 135 Tex.Cr.R. 148, 117 S.W.2d 435.

Complaint is also made to the court’s action in permitting Officer Harris to relate that portion of the conversation between appellant and Officer Stewart following his arrest, when appellant, after being asked if anyone was in the house, replied that there was not and stated that if the officer did not believe him he could look for himself. This testimony was admissible on the issue of whether appellant gave his consent to the officers’ entry into the apartment. The fact that he was under arrest did not render such testimony inadmissible. Graves v. State, Tex.Cr.App., 336 S.W.2d 156; Sikes v. State, Tex.Cr.App., 334 S.W. 2d 440.

Appellant’s last contention is that he has been denied the right to counsel of his own choosing, because of the court’s action in denying his motion, filed before trial of the cause, requesting the court to order the money which he had on his person at the time of his arrest restored to him in order that he might hire counsel to represent him.

We find no error in the court’s action, as the court apparently chose to follow the provisions of Art. 934, Vernon’s Ann.C.C.P., which provides:

“Upon the trial of any criminal action for theft, or for any other illegal acquisition of property which is by law a penal offense, the court trying the case shall order the property to be restored to the person appearing by the proof to be the owner of the same.”

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

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Obed Santos RUIZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35817.
    Court of Criminal Appeals of Texas.
    May 22, 1963.
    Rehearing Denied June 26, 1963.
    Marion H. Gibbons, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James I. Smith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is unlawfully carrying a pistol; the punishment, one year in jail.

The sole question presented is the sufficiency of the evidence to sustain the jury’s finding that the appellant carried a pistol.

The testimony of Mrs. Pablo Martinez reflects that in the early hours of June 3, 1962, the appellant, who was separated from his wife Angelita, went to a house in the City of Houston, Texas, where his wife and two children were living in an upstairs apartment with her parents, Pablo Martinez and the witness Guadalupe Martinez.

When the downstairs screen door was not opened immediately upon appellant’s knock, he tore the screen and entered the house and went upstairs to the Martinez apartment.

Appellant was met at the screen door of the apartment by his wife’s parents where, because of the “inconvenient hour”, the parents refused to allow appellant to talk with his wife or to get his children. The parents suggested that he come back at another time.

Mrs. Martinez further testified:

“A. He didn’t say more, he did this gesture (indicating) pulled out the arm and that is when we heard two shots.
“Q. When you speak of arm, do you mean he pulled a pistol?
“A. Why sure, just like this (indicating) he didn’t actually take it out from here.
“Q. Could you see the pistol in his hand?
“A. No, because it was small he had it covered with his hand. I heard the shots and he hurt my husband.

She also testified that there were two shots and that one bullet hit her husband and the other missed him and was imbedded in the house.

Witness Officer J. M. Brossard testified that when he arrived at the scene Mr. Martinez was being loaded into an ambulance. He observed that the upper portion of Mr. Martinez’s body was covered with blood and that he had a round hole in the center of his chin.

The officer further testified that there were two small holes, approximately the size of a .22 shell and about chest high, in the upstairs screen door.

The evidence is deemed sufficient to support a finding by the jury that two bullets were fired by appellant from a firearm of such diminutive physical character that it could be covered by the hand of appellant.

A pistol is defined to be: “A short firearm intended to be aimed and fired from one hand.” Webster’s New International Dictionary, 2d Ed.; 32a Words and Phrases “Pistol”, p. 105.

We find the evidence sufficient to sustain . the conviction. Sexton v. State, Tex.Cr. App., 45 S.W. 920.

No reversible error appearing, the judgment is affirmed.


text:
    John WEYMOUTH, Appellant, v. The STATE of Texas, Appellee.
    No. 35816.
    Court of Criminal Appeals of Texas.
    May 29, 1963.
    Rehearing Denied June 29, 1963.

      Kenyon Houchins, of Houchins & Tasker, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Daniel P. Ryan, Jr., and George Stack, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is disturbing the peace; the punishment, a fine of $200.

This prosecution arose in the corporation court, the complaint alleging that the appellant did unlawfully go into and near the private house occupied by the complaining witness and his family and did then and there expose his person to the complaining witness, who was over 16 years of age, “ * * * in a manner calculated to disturb the persons present at such private house * * *»

In the trial de novo in County Court before a jury on a plea of not guilty only one witness, the 25 year old married woman who signed the complaint, testified and the facts are not in dispute.

According to the evidence the appellant was standing in the back doorway of his garage. The complaining witness, who lived nearby, was at the fence of her back yard some 50 or 60 feet from the appellant’s garage. She was talking to two neighbor boys that the appellant had been talking with a short time before. She had an open view of the apppellant and testified: “He was standing facing me with his hands on his hips and he was fully dressed except he had his person exposed.”

“The second time I saw him during this exposure he was still facing me and he was playing with himself with his hand * * * The first time he had his hands on his hips and the second time he had his privates out and playing with himself.
“Q. At the time you saw him with his privates out where were these two children — these neighbors’ children ?
“A. They were still right there digging in the ground.—
“Q. When you first saw him at the time he had his privates out, what reaction did you have; how did that effect you?
“A. I was somewhat shocked and amazed. I decided instantaneously not to become excited because I didn’t want to upset these two boys and I also wanted to see what he had on his mind, so I just stayed there. I continued my conversation with the boys and upon occasions I would glance around to see what Mr. Weymouth was doing—
“Q. To your knowledge did you observe whether any of the neighbor’s children were looking at him at the time?
“A. No, sir. As far as I could tell they didn’t see anything.”

She also testified that the appellant was looking in her direction and testified: “The last time I saw him that day he was standing sideways facing — I guess what would be his kitchen, and he was in the process of zipping his pants up.—

“Q. What did you do then?
“A. I quickly got out of my conversation and calmly strolled over to my husband and told him about it.”

The testimony of the complaining witness was that her husband was raking leaves and her little girl was in her play pen in the yard, but that her husband couldn’t see anything from the area where he was raking because of the oleander bushes or trees some 10 or 12 feet high along the fence dividing her yard from her next door neighbor’s, there being about a 5 foot break through which she saw the appellant expose his private parts.

The complaining witness testified that she talked to the mother of the hoys who were digging the next day and the following day reported the matter to the police.

On cross-examination she testified that one of the neighbor’s boys was 9 and the other 13 years of age.

The appellant directs attention to her further cross-examination wherein she testified :

“Q. Did Mr. Weymouth go into your house and near your house that day? A. No, sir, not to my knowledge. — He got no closer to my house than the back fence that day.—
“Q. And after he left the back fence, this occurrence that you testified about occurred? A. Yes, sir.
“Q. And he was standing at the time within the door or was he out in the yard? A. No, sir, he wasn’t within the door.
“Q. And you were peeping into his house at the time you saw these things, isn’t that true?
“A. I guess you would say that.
“Q. Did you part the oleander bushes to get a good look?
“A. No, sir, they aren’t over there.
“Q. There is a pear tree.
“A. Yes, sir, but it is to my left looking in Mr. Weymouth’s direction.”

Art. 474, Vernon’s Ann.P.C., under which the appellant was prosecuted, provides:

“Whoever shall go into or near any public place, or into or near any private house, and shall use loud and vociferous, or obscene, vulgar or indecent language or swear or curse, or yell or shriek or expose his or her person to another person of the age of sixteen (16) years or over, or rudely display any pistol or deadly weapon, in a manner calculated to disturb the person or persons present at such place or house, shall be punished by a fine not exceeding Two Hundred Dollars ($200). * *”

The controlling question is whether the evidence is sufficient to sustain the jury’s finding that the appellant went near the private house of the complaining witness and exposed his person. Did the appellant violate Art. 474 V.A.P.C. by exposing his private parts to the complaining witness while she was in her back yard some 60 feet away and in clear view?

It is interesting to note that had he been charged with exposing himself to the children with whom the lady was conversing, the offense would have been a felony under Art. 535c V.A.P.C.

The contention of the appellant is that “private house” as used in Art. 474 does not embrace the hack yard or curtilage, but only the house itself.

As we understand the evidence, the house of the complaining witness was no more than 60 feet from the back fence where the complaining witness was standing, and the appellant was 50 or 60 feet in another direction when he exposed his person.

The evidence is deemed sufficient to sustain a finding that the appellant exposed himself so near the private residence as to be calculated to disturb “persons present at such house”, and in doing so violated Art. 474 V.A.P.C.

The judgment is affirmed.


author: DICE, Commissioner. BELCHER, Commissioner.

text:
    Ronald DUJAY, Appellant, v. The STATE of Texas, Appellee.
    No. 35653.
    Court of Criminal Appeals of Texas.
    April 17, 1963.
    Rehearing Denied May 29, 1963.
    Second Rehearing Denied June 26, 1963.
    Clyde W. Woody, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, and Erwin Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 725c, V.A. P.C., for unlawfully being under the influence of a narcotic drug; the punishment, three years in the penitentiary.

In view of our disposition of the case, a recitation of the facts is unnecessary other than to observe that appellant was arrested in the city of Houston under a warrant issued out of Justice Court, Precinct No. 1, of Harris County, upon a complaint filed in said court, charging him with violation of the narcotic laws. Following his arrest, appellant was taken to the police department, where he was interviewed and observed by state narcotics officer, R. E. Scholl.

Officer Scholl, called as a witness by the state, described certain needle marks on appellant’s arm, his physical appearance, and demeanor, and, being qualified as an expert, expressed his opinion that at such time he was under the influence of a narcotic drug.

Appellant timely objected to the testimony on the ground that a legal arrest had not been shown. Upon the state’s assurance that such arrest would be shown, his objections were by the court overruled.

At the conclusion of the testimony when it was shown that the warrant issued for appellant’s arrest was invalid — not having been signed by the magistrate issuing the same, as required by Art. 219, V.A.C.C.P., appellant moved for a mistrial. The motion was refused but at the same time the court held the arrest of appellant unauthorized and orally instructed the jury not to consider Officer Scholl’s testimony insofar as it related to a physical examination of appellant. Later in his charge, the court by an instruction withdrew from the jury’s consideration any testimony in the case relative to a physical examination or observation of appellant while in custody, except the testimony of Chemist Crawford, who had taken a specimen of urine from him.

Under the record, the court should have granted a mistrial.

As heretofore shown, Officer Scholl’s testimony was admitted by the court upon the assurance of state’s counsel that a legal arrest would be shown. This the state failed to show.

Officer Scholl’s testimony consists of 93 pages of the 156-page statement of facts. In his testimony the officer presented to the jury a description of appellant’s appearance while in unlawful custody and also expressed his opinion, based upon his observation of appellant, that at such time he was under the influence of a narcotic drug.

We are not here dealing with a court’s instruction to disregard one improper question and answer of a witness, but an instruction to disregard a large portion of the testimony of a witness which was prejudicial to the appellant.

Appellant was assessed the maximum punishment under Art. 725c, V.A.P.C.

The officer’s testimony was of such nature that the error in its admission could not be cured by the court’s instruction. Music v. State, 135 Tex.Cr.R. 522, 121 S.W.2d 606; Barker v. State, 164 Tex.Cr.R. 318, 299 S.W.2d 142; Hicks v. State, Tex.Cr.App., 355 S.W.2d 189.

Upon another trial, under similar facts, the three photographs of appellant showing needle marks on his arm, which were introduced in evidence by the state, should not be admitted, as it appears that they were made of him while he was under unlawful arrest and detention. Art. 727a, V.A.C.C.P.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

ON STATE’S MOTION FOR REHEARING

BELCHER, Commissioner.

The state contends that, even though the arrest was illegal and the jury instructed not to consider certain evidence, as shown in our original opinion, the portion of the confession introduced and the results of the urine test together with the other evidence remaining before the jury are sufficient to support the conviction, therefore, no reversible error is shown.

A reconsideration of the testimony shows that it describes in detail the appearance and condition of the body of the appellant at the police station. Although such testimony was withdrawn at the conclusion of the trial, the pictures showing the appearance and condition of the body were not withdrawn and remained before the jury as evidence which could have been taken to the jury room. Further there was extensive testimony showing the crude, sordid and desperate methods used in preparing and administering narcotics, along with its effects and results, which remained in evidence before the jury.

From the nature of all the evidence introduced, it cannot be reasonably said that the jury could wholly disregard and keep the testimony which was withdrawn out of mind while considering that remaining in evidence. The error in admitting the testimony withdrawn could not be cured by the court’s instruction.

The state and the appellant insist that this Court should here pass on the admissibility of the confession and the urine test.

The officers who executed the arrest warrant did not testify and no one present when it was executed was called as a witness. There is no evidence of the exact time or place the appellant was arrested. Further, it is pointed out that the appellant did not testify. It is unknown what the testimony of the arresting officers or that of the appellant would be if they testified in the event of another trial. Therefore it is evident from the record that it would be unwise to here comment on the admissibility of this evidence.

This cause was properly considered and disposed of originally.

The motion for rehearing is overruled.

Opinion approved by the Court


text:
    James Ernest MORRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 35819.
    Court of Criminal Appeals of Texas.
    May 29, 1963.
    Rehearing Denied June 29, 1963.

      Addison Bradford, Jr., Fowler Roberts, Dallas, for appellant.
    Henry Wade, Dist. Atty., Frank Watts, John Rogers and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, 4 years.

Trial was before a jury on a plea of not guilty. The case was submitted to the jury as one of circumstantial evidence.

The sufficiency of the evidence to sustain the conviction is questioned.

The indictment alleged the theft of an automobile of the value of over $50.00 from Patricia LaRoe in Dallas County, on or about June 25, 1962.

Patricia LaRoe testified that on said date she owned a 1957 Pontiac convertible automobile, the 1962 license plates on it being numbered NT-1061; that on the evening of June 25, 1962, the automobile was parked in a garage at the apartment in Dallas where she lived; that later in the evening she went to the garage and her car was not there and she notified the police.

Texas Highway Patrolmen McWhorter and Benson saw the appellant in Electra, Texas, about 10 o’clock A.M. on June 28, 1962, at which time he was driving a 1957 Pontiac convertible, License No. NT-1061. There were no hubcaps on the convertible.

The appellant told the officers that he got the car in Dallas and that he had traded or pawned the hubcaps for gasoline at a service station in Electra. He directed the officers to a service station where hubcaps which he had pawned or traded were recovered and taken to Wichita Falls by the officers.

Patricia LaRoe further testified that on June 28, 1962, she was informed that her car had been recovered and she went to Vernon, Texas, where she found it stored. She testified that the spare tire, the jack and fender skirts were missing and there were no hubcaps on the car; that she was told to pick up her hubcaps at the Texas Highway Patrol Department in Wichita Falls, which she did.

The owner testified that the automobile was taken without her consent and that she had never seen the appellant before the day of the trial.

As to the value of the 1957 Pontiac convertible, the owner testified:

“Q. And do you know what the approximate fair market value of that car was on that date in Dallas County, Texas?
“A. I was told around $1,000.00.
“Q. About $1,000.00. Is that over the value of $50.00?
“A. Yes, it is.”

There was no objection to the introduction of such testimony and the sufficiency of the evidence or the probative value of the testimony relating to value was not questioned in the trial court.

Appellant here contends that there is a complete absence of any competent evidence of the value of the automobile, and that under authority of Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47, and Perales v. State, 165 Tex.Cr.R. 638, 310 S.W.2d 335, the evidence is insufficient to sustain this conviction. The contention of the appellant in this regard is that the testimony of the owner of the car as to value is “the rankest form of hearsay” and is “no evidence”.

In Price v. State and Perales v. State, supra, the state made no effort to prove that the value of the automobile alleged to have been stolen was $50.00 or over, and the evidence was held insufficient to sustain conviction for felony theft.

We have held that evidence which is hearsay may in some instances be used to prove value. Esparza v. State, Tex.Cr. App., 367 S.W.2d 861; Holmes v. State, 126 Tex.Cr.R. 587, 72 S.W.2d 1092; Brown v. State, 71 Tex.Cr.R. 353, 162 S.W. 339; 1 Wharton Criminal Evidence 12th Ed. 620, Sec. 276.

We overrule the contention that the testimony above quoted was without probative value because it was “the rankest form of hearsay” and not hearsay such as from a book, price list or catalogue.

If the appellant was not satisfied as to the source of the witness’ information as to value he had the opportunity to go into the matter at the trial.

In Pigg v. State, 162 Tex.Cr.R. 521, 287 S.W.2d 673, the owner testified that he “hoped” his automobile had a reasonable value of over $50. He also testified that he paid $3,000.00 for the car less than a month before it was stolen. Overruling the complaint that there was no proof made as to the value of the car, this Court said “Were the question of value more closely contested, we would probably require, and the State would probably have introduced, more evidence on the question, * * *.”

In Israel v. State, 158 Tex.Cr.R. 574, 258 S.W.2d 82, the owner of the automobile alleged to have been stolen testified without objection that “to the best of his knowledge the car was valued at $575.00.” In answering the complaint that the state failed to prove by legal and competent evidence that the stolen car was of the value of $50 or over, we said:

“If appellant desired to have the value of the car more specifically and precisely proven it was incumbent upon him to offer his objection to the testimony relating to such value and insist upon the qualification of the witness as to market value being established. Not having done so he will not now be heard to say that the testimony as to value of the stolen car is without probative force and must be disregarded as not constituting legal and competent evidence.” (Citing cases.)

While we are not ready to say that the court may take judicial knowledge of the value of an automobile, we do say that proof that the automobile taken in June, 1962, was a 1957 Pontiac convertible in condition to drive from Dallas to Vernon and return, required but little supporting evidence to sustain the allegation that it was of the value of over $50.

We find the evidence sufficient to sustain the conviction.

The remaining claim for reversal is that the court erred in admitting the testimony of the arresting officer as to the appellant’s statement made to him while under arrest, that “he got the car in Dallas” and “the car was not his”.

The evidence shows that as a part of tire same conversation the appellant told the officers where he had traded or pawned the hubcaps, which statement led to their recovery. The testimony appears to have been admissible. Art. 727 V.A.C.C.P.; Graves v. State, 169 Tex.Cr.R. 595, 336 S.W .2d 156; Smith v. State, 166 Tex.Cr.R. 614, 317 S.W.2d 539; Smith v. State, 157 Tex.Cr.R. 637, 253 S.W.2d 665; Alexander v. State, 151 Tex.Cr.R. 235, 207 S.W.2d 881.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Murray Wayne LATIMER, Appellant, v. The STATE of Texas, Appellee.
    No. 35905.
    Court of Criminal Appeals of Texas.
    June 5, 1963.
    Rehearing Denied June 29, 1963.
    No attorney on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.00.

No statement of facts accompanies the record.

By bill of exception, complaint is made of the failure of the trial court to quash the jury panel because the same had not been selected in accordance with the terms of Article 2109, Vernon’s Ann.R.C.S. Section 2 of Article 2109 reads in part as follows :

“To select jurors. — Said commissioners shall select jurors for all the terms of the county court to be held within six months after the adjournment of the first week of said court after the dates first named (last day of December and the last day of June of each year). * ⅝ * »

This record does not reflect the date upon which the first week of the July, 1962, term commenced, and therefore it is not shown that the term at which this case was tried began more than the six months referred to in said article.

Finding no reversible error, the judgment of the trial court is affirmed.


author: BELCHER, Commissioner.

text:
    Warner Dale BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 35889.
    Court of Criminal Appeals of Texas.
    June 5, 1963.
    Rebearing Denied June 29, 1963.

      Orville A. Harlan, Houston (On Appeal Only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery by assault with a prior conviction alleged for enhancement; the punishment, life.

Manager Dyess of a food store, while testifying for the state, identified the appellant as one of two men who entered the store about 7:30 P.M., April 17. He stated that appellant “stuck a pistol in his side,” ordered him into a booth and struck him on the head with the pistol. Next, the appellant demanded to know where the money was and when told it was in the safe he asked Dyess to open it. In fear of his life or serious bodily injury Dyess opened the safe. The appellant and his companion, George James Cook, removed more than $5,000 in money from the safe and left the store with it, and Dyess saw them driving away in a car from an adjacent parking lot.

On July 10, the appellant and Cook were arrested after an encounter with an officer in which several shots were fired resulting in the appellant being wounded. The proof further shows that an expended cartridge case found on the parking lot adjacent to the store had been fired from the pistol in possession of the appellant at the time of his arrest. Following his arrest, the appellant made and signed a written statement admitting the robbery of the food store and it was introduced in evidence.

The indictment, judgment and sentence in the prior conviction alleged were introduced in evidence. The appellant was identified as the same person convicted in said cause.

Testifying in his own behalf, the appellant denied his participation in the robbery of the food store; and he testified that he signed the written statement because of fear and threats exerted on him by the officers.

The officer to whom the statement was made and those present at the time denied in their testimony that they or anyone in their presence intimidated or threatened the appellant in the making of the statement.

The involuntary character of appellant’s written confession as contended by him was properly submitted by the court in its charge to the jury.

Appellant contends that the alleged prior judgment of conviction was not final and therefore it could not be used for enhancement.

The prior judgment of conviction brought forward in the statement of facts contains all the essential recitations showing a waiver of trial by jury on a plea of guilty before the court to the offense charged in the indictment. It shows that a printed form designed for use in entering either a plea of guilty or not guilty was used in entering said judgment. In striking out the portion of the form applicable to a plea of not guilty before a jury a portion thereof was not deleted. It is evident that a trial was had on a plea of guilty before the court, without a jury. The recitations as to a plea of not guilty in the judgment could have been corrected and reformed on appeal to this court. It is pointed out that no objection was made to the admission of the judgment in evidence on the ground now asserted.

In connection with this contention it is noted that the appellant testified on direct examination as follows:

Have you ever been convicted of a felony offense in this state or any other state? A. Yes, sir. a
What offense have you been convicted of? a
Breaking and entering a motor vehicle. >
Is that the judgment and sentence here that was entered into evidence against you in this case ? O!
Yes, sir. >
Were you guilty? A. Yes, sir. O
“Q. Did you plead guilty to that offense ?
“A. Yes, sir, I pleaded guilty to it.
“Q. Did you go to the penitentiary for it?
“A. Yes, sir.”

The consideration of appellant’s contention reveals no prror. Art. 847, Vernon’s Ann.C.C.P.; Shannon v. State, 170 Tex.Cr. R. 91, 338 S.W.2d 462; Todd v. State, 170 Tex.Cr.R. 552, 342 S.W.2d 575.

The evidence is sufficient to support the conviction and the judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Ismael PAREDES, Appellant, v. The STATE of Texas, Appellee.
    No. 35801.
    Court of Criminal Appeals of Texas.
    May 22, 1963.
    Rehearing Denied June 29, 1903.

      Murray J. Howze, Monahans, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted in the District Court of Pecos County for burglary with intent to commit theft, and his punishment assessed at four years.

The state’s testimony reflects that Sam Clymer, a policeman for the city of Fort Stockton, drove to Black’s Drug Store on Highway 290; that he saw appellant run through the front door; that it was a glass door and was closed; that he was chased by the offlcers and was caught in the front yard by the chief of police, W. G. McDonald, and was arrested; that he (appellant) dropped a box, which was picked up; that it contained cameras and projectors and a light finder.

James Edwin Black testified that he owned the store; that the door on the east side of the building was broken; that the items which were taken were valued at about $900; that he did not give anyone permission to go in the store.

Appellant’s confession was introduced, which recited that he broke into Black’s Drug Store in Fort Stockton and got several cameras and a projector from the store and started out; that the city police drove up and he dropped the box and ran back into the building through the front door and broke out the glass; and that the officers caught him in police chief McDonald’s yard.

Appellant introduced evidence of his good reputation and that he had never been convicted of a felony. He did not take the stand.

Two informal bills of exception are presented :

First, appellant complains that reversible error was committed when O. D. Luttrell, the deputy sheriff, was testifying and was asked if he had occasion to take part in the investigation of the appellant. He replied that he did and that he took him to Midland “to a polygraph machine.” Appellant moved for a mistrial, which motion was overruled. He stated that an instruction to the jury would not cure the effect from the minds of the jurors.

The record is devoid of any results of a test, or the fact that a test was given— if one was given, before the jury. The matter was not pursued further. The appellant did not request an instruction to the jury not to consider it, and, since there was no evidence before the jury as to the results, no error was shown.

Analogous to the case is Sublett v. State, 158 Tex.Cr.R. 627, 258 S.W.2d 336, a driving-while-intoxicated case. The officer was asked if at the time of the arrest he had in his possession an intoximeter test, the question was not answered, and the case was affirmed.

The Sublett case is discussed in Saunders v. State, Tex.Cr.App., 353 S.W.2d 419. The latter case was reversed, and on motion for rehearing the writer herein noted that the court was not dealing with an unresponsive answer.

In the present case we are dealing with an unresponsive answer.

Appellant next contends that the state did not show that the confession was voluntarily made. O. D. Luttrell, deputy sheriff of Pecos County, testified that he took appellant’s statement; that he was given the statutory warning prior to the time he signed the statement; that it could be used against him; and that it was voluntarily signed. On cross-examination he testified that he told appellant it could be used against him, and when asked if it could he used for him, he testified:

“I don’t remember telling him it could be used for him but definitely that it could be used against him.
* * * * * *
“I don’t think I ever told him it could be used for him. I don’t recall ever telling, one that it could be used for one.”

The witness further testified that he might have said it could be used for him, and that the warning in the confession was read to appellant.

There was direct testimony showing that the warning was given. There was other testimony showing that the warning was read to the appellant, and that the witness did not remember ever stating to anyone that is could be used for him.

The trial court did not err in admitting the confession.

We observe that the learned trial judge submitted to the jury, in his charge, the issue of whether the statutory warning had been given prior to taking the confession, and whether it was voluntarily made.

There is no undisputed testimony that the confession was not voluntarily given, and the trial court did not err in admitting it. Sandoval v. State, 162 Tex.Cr.R. 370, 285 S.W.2d 222.

No reversible error appearing and the evidence being sufficient to sustain the verdict, the judgment is'affirmed.


text:
    Ex parte Ernest ROSE, Jr.
    No. 35838.
    Court of Criminal Appeals of Texas.
    May 22, 1963.
    Rehearing Denied June 19, 1963.

      David G. Copeland, Burney Walker, Waco, for appellant.
    George Gray, Asst. Atty. Gen., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Relator, by petition for writ of habeas corpus, seeks his release from custody of C. C. Maxey, sheriff of McLennan County, and George Beto, director of the Texas Department of Corrections, who hold him by virtue of a warrant issued for his arrest by the Board of Pardons and Paroles following revocation of his parole by the Governor of this State.

The petition was presented to Honorable Bill Logue, Judge of the 19th Judicial District Court of McLennan County, who granted the writ and made the same returnable to this court, together with the facts ascertained upon the hearing, as provided by Art. 119, Vernon’s Ann.C.C.P.

The record reflects that on September 10, 1956, appellant was convicted in Criminal District Court No. 2 of Dallas County, in Cause No. 6812-1, upon his plea of guilty and waiver of a jury, of the offense of robbery and assessed punishment at confinement in the penitentiary for fifteen years.

In his petition for habeas corpus, relator alleges that the judgment is void because no punishment was assessed therein.

Upon the hearing, the state introduced in evidence the original minutes of the court, containing the judgment — as well as a certified copy thereof, which judgment recited punishment of fifteen years assessed against relator. Relator introduced two certified copies of the judgment, which copies did not show the punishment of fifteen years assessed against him. Bill Shaw, district clerk of Dallas County, testified upon the hearing that the certified copies introduced by relator were incorrect in that the clerk who prepared them had omitted the figure “15” in the blank spaces therein.

Under the facts adduced, the judgment was shown to be a valid judgment.

In his brief, relator contends that the judgment is also void because the evidence shows no written waiver of a jury, executed by him, nor consent in writing executed by the state’s attorney to his waiver of a jury, as required by Art. 10a, V.A.C. C.P.

Relator apparently overlooks certain exhibits — found in the record, that appear to have been introduced in evidence by him, which include his written waiver of a trial by jury, together with the court’s consent and approval, and the written consent and approval executed by the district attorney of Dallas County, filed in Cause No. 6812-1, before the entry of relator’s plea therein.

The relief prayed for is denied.

Opinion approved by the court.


author: MORRISON, Judge. WOODLEY, Presiding Judge

text:
    J. C. WOODARD, Appellant, v. The STATE of Texas, Appellee.
    No. 35863.
    Court of Criminal Appeals of Texas.
    June 5. 1963.

      Leland D. Sutton, El Paso, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 60 days in jail and a fine of $500.00.

In view of our disposition of this case, a recitation of the facts is not called for other than to observe that there were no aggravating circumstances involved and only one peace officer was called as a witness.

There are two formal bills of exception and an informal bill relating to the same argument. Since the court qualified one of the formal bills and not the other, a conflict would appear to exist, and we will look to the informal bill. From it, it appears that during prosecutor’s closing argument he made the following statements, the following objections were made, and the rulings of the court as set out were made as follows:

“ * * * And I say to you, if you can’t believe an officer who has been on your police force, whom you are paying indirectly by your taxes, for a period of nine years, who can you—
“MR. SUTTON: Excuse me, Mr. Miles. Your Honor, he is trying to bolster his witness. That is the un-sworn testimony of the County Attorney. And I object to it and ask the Court to instruct the jury not to consider that line of argument.
“THE COURT: Overrule the objection.
“MR. SUTTON: Note our exception.
“MR. MILES: I have a little better faith in the officers that we have on this police force — that you have on this police force, that under the direction of Warren Dodson and the City Commission. And he has been on this police force for nine years. And he saw that man, J. C. Woodard—
“MR. SUTTON: Your Honor, he is trying to bolster his own witness. And I object to it—
“MR. MILES: Talking about the—
“MR. SUTTON: May I make my objection, please, sir?
“THE COURT: Overrule the objection.
“MR. SUTTON: I would like to ask that you instruct the jury not to consider that line of argument.
“THE COURT: Overrule the objection.
“MR. SUTTON: Note my exception.”

The prosecutor here went further than those in Rice v. State, 161 Tex.Cr.R. 89, 275 S.W.2d 105, and Vasek v. State, 163 Tex. Cr.R. 632, 294 S.W.2d 810, and told the jury that they were paying the officer witness’s salary and that since the City Commission had retained him in office for so long the Commission must have had confidence in his integrity.

In Womack v. State, 160 Tex.Cr.R. 237, 268 S.W.2d 140, we reversed a conviction where the prosecutor described the officer witnesses as fine citizens and fine men and cited McCool v. State, 159 Tex.Cr.R. 432, 264 S.W.2d 734, where the court had stated that the officer witness had been vouched for and was a qualified officer.

See also Puckett v. State, 168 Tex.Cr.R. 615, 330 S.W.2d 465, 81 A.L.R.2d 1237, wherein my brother Woodley dissented, and the cases under Texas Digest, Crim.Law 720(5).

For the error set forth, the judgment is reversed and the cause is remanded.

WOODLEY, Presiding Judge

(dissenting).

This is not a case where the testimony of the witness referred to in argument was in conflict with the testimony of another witness. The testimony of the witness James D. Self was uncontradicted, and was to the effect that he had been with the Abilene Police force for over 9 years, during which time he had seen persons who were under the influence of intoxicating liquor, and that in his opinion the appellant was drunk when he stopped him about 3:30 A.M. while he was driving an automobile on Danville Drive, a public road in the City of Abilene.

Some vodka which the witness testified he found in the front seat of the car was introduced in evidence, and the officer testified that the appellant had the odor of alcohol about him and, in response to his question as to how much he had had to drink, the appellant “ * * * said he had had too much.”

In Womack v. State, 160 Tex.Cr.R. 237, 268 S.W.2d 140, the opinion pointed out that the issue of the defendant’s intoxication was sharply contested and the complained of remarks were laudatory of the officers.

Also we reversed the conviction in Brown v. State, 165 Tex.Cr.R. 535, 309 S.W.2d 452, and properly so, because of the argument of the county attorney: “These officers are the most courteous and truthful men in the enforcement of the law.” This we held constituted unsworn testimony used to bolster the credibility of the witness.

In Puckett v. State, 168 Tex.Cr.R. 615, 330 S.W.2d 465, 81 A.L.R.2d 1237, the argument which the majority held was ground for reversal was: “I am telling you that they (the arresting officers) are telling you the truth.”

On the other hand, we affirmed the conviction in Rice v. State, 161 Tex.Cr.R. 89, 275 S.W.2d 105, the county attorney argued : “Are you going to say to these officers that you are not going to believe them when they hold up their hands and swear that he was intoxicated ?” Our holding was: “We cannot say that this was an unfair argument, especially in the absence of the evidence as to what the officers had actually testified to on the trial.”

There is nothing in the testimony of Officer Self which would render inapplicable the holding in Rice v. State.

In Vasek v. State, 163 Tex.Cr.R. 632, 294 S.W.2d 810, the county attorney argued that the witness was “an honest officer.” We overruled the objection that this remark was out of the record.

As I see it, the remarks here complained of referred to facts that were in evidence or which are common knowledge, unless it be the reference to the officer witness working under the directions of one Warren Dodson.

There is nothing in the record to indicate that any harm resulted from this reference.

In fact the appellant is in no position to contend that any of the complained of remarks were harmful, he having agreed to the court’s qualification of one of his bills of exception certifying “that such argument did not harm the rights of the defendant and the defendant was not denied a fair and impartial trial.”

If we are to disregard the trial court’s certification in the formal bills, and consider only the transcript of arguments, the complained of remarks do not warrant reversal because they were clearly in reply to and invited by argument of counsel for the appellant wherein he stated to the jury:

“The only evidence in this record that the man had been drinking at all is what Officer Self said. And he said, 'Oh, he was drunk. He was drunk — ’ I am not saying that Officer Self would mislead you, but I would say that he just doesn’t know what he is talking about. Now he said he had been on that police force for nine years. And yet he didn’t know what the shoulder of a road was — Then, he comes in here and they ask you to take the testimony of a man like that and convict a citizen like J. C. Woodard here, a responsible man in our County.”


text:
    Billy Jesse DALBY, Appellant, v. The STATE of Texas, Appellee.
    No. 35651.
    Court of Criminal Appeals of Texas.
    June 5, 1963.
    J. W. Reid, Abilene, Clay Coggins, Roby, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, forty days in jail and a fine of $100.

It appears from the record that appellant’s trial was before a jury, with the Honorable H. G. Andrews, Jr., the regular county judge of Jones County, presiding. After entry of judgment upon the jury’s verdict by Judge Andrews, by agreement of the parties Honorable James K. Graham was selected to preside as special judge in the cause in the hearing of appellant’s motion for new trial and matters pertaining to the perfection of an appeal. Following such selection, appellant’s motion for new trial was overruled by Judge Graham and, after notice of appeal was given, appellant duly entered into a recognizance before him.

The record fails to show that Judge Graham, as special judge, took the oath of office as required by Art. 555, Vernon’s Ann. C.C.P. In the absence of such a showing, the conviction cannot stand. Parish v. State, Tex.Cr.App., 268 S.W.2d 149; West v. State, Tex.Cr.App., 358 S.W.2d 132; and Ross v. State, Tex.Cr.App., 363 S.W.2d 944.

For the reasons stated, the judgment is reversed and the cause is remanded.

Opinion approved by the court