author: WOODLEY, Presiding Judge. DICE, Commissioner.

text:
    Edwin Marious BERTSCH, Appellant, v. The STATE of Texas, Appellee.
    No. 36395.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1964.
    Rehearing Denied March 18, 1964.
    Second Motion for Rehearing Denied May 13, 1964.

      Paul Huser, Schulenburg, Werner J. Stavinoha, Weimar, Bob Looney (on appeal only), Houston, Tom Higgins (on appeal only), Austin, for appellant.
    Wallace T. Barber, Dist. Atty., San Marcos, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder; the punishment, death.

The deceased was the 18 year old daughter of the appellant. She was shot at fairly close range with a 12 gauge shotgun. The high powered birdshot load penetrated her body from front to back, the point of entry being slightly to the left of the right breast and the exit wound being under the left shoulder blade.

The appellant’s confession to Sheriff T. J. Flournoy, introduced in evidence without objection, omitting the warning portion, reads:

“Sunday October 7th, 1962, was my par-, ents’ 50th wedding Anniversary, and all of the relatives were invited to a celebration, however my wife and my mother do not get along very well and my wife did not get an invitation to the celebration. My daughter Rose Marie, who worked in Houston, had come home Saturday evening to visit us and to attend the celebration. My wife and children went to church Sunday morning, but I did not go, I stayed at home and slept. When they came home someone brought a large basket of food from the celebration and my wife and children eat dinner, but I did not eat anything. About two o’clock in the afternoon my wife and I were arg-uritig about the invitation and Rose Marie ran up and slapped me, and my wife and children left and went to Plum and got some water and brought it back to the house and Rose Marie started ironing some of her clothes. I had been lying on my bed in my room which is just across a narrow hall from Rose Marie’s room. I got up and got my 12 gage pump shotgun partly opened the door to my room and the door to Rose Marie’s room was standing wide open and Rose Marie was standing up before her dresser and I rested my gun against the door facing and shot her. I then tried to pump another shell in my gun, but it jammed and I could not get another shell in it. I then walked out on the front porch and set down and was still setting there when the officers came and arrested me.
“The above statement has been read over to me and by me and is true and correct to the best of my knowledge.
/s/ Edwin Marious Bertsch.”

Deputy Sheriff Prilop testified that he arrived at the appellant’s home, where the shooting occurred, shortly after 6 P.M. He found the appellant sitting on the front porch with a 12 gauge pump shotgun nearby. Appellant’s wife and 6 year old daughter were in the yard screaming and crying but the appellant was calm.

The shotgun had an empty shell jammed in the barrel and there were two live shells in the magazine. The shells in the magazine were loaded with Double O buckshot. The marks on the fired shell in the barrel showed it to be a newer and heavier loaded shell than those in the magazine, and that it was loaded with 7J4 shot.

The appellant testified and called his wife as a witness. The only other eye witness was their six year old daughter, who was present at the trial but was not called to testify.

The appellant testified that he picked up the gun after he decided to clean it and started out the door of his room carrying the gun across his left arm as he opened the door with his right hand; that he did not know the gun was loaded; that “the shot went off and then somebody hollered, when they hollered I was off. I didn’t know nothing. I fell and don’t remember nothing since * * * ”; that the next thing he remembered, Mr. Prilop was shaking him.

Appellant’s only explanation of his confession to Sheriff Flournoy was on cross-examination when he testified that he did not remember what he told him. “I was so sick when I was giving that statement, I don’t remember whát I said.” He also testified on cross-examination that many of the statements in the confession were untrue.

Mrs. Bertsch testified that she was in the room with her daughter when she heard “a big bang” and saw her daughter falling and bleeding; that the appellant was standing with a gun in his hand; that she asked him “Did you do this? ” and he did not answer, “he was just standing there dumbfounded, wouldn’t answer anything, and standing there and holding that gun like he was holding it and trying to work it or something.”

It would serve no useful purpose to set out other evidence offered by the defense to support the defense of accident. Suffice it to say that the jury resolved the issue against the appellant and the evidence is sufficient to sustain the jury’s verdict finding that the appellant with malice aforethought voluntarily shot and killed his teenage daughter and assessing the supreme penalty.

Appellant’s brief presents as his first ground for reversal remarks of the district attorney in his closing argument to the jury which it is contended constituted un-sworn testimony which injected new and harmful facts into the case. His second ground also relates to argument of the district attorney which it is contended was a comment upon the failure of an incompetent witness to testify.

Both of these complaints to argument are presented by formal bills of exception which the court refused to approve, noting thereon his reasons. Also a transcript of the argument of the district attorney appears in the statement of facts.

The bills of exception relating to argument show no reversible error for several reasons:

(1) In the first place, the record shows without dispute that no objections of any kind were made to any remark or argument of the district attorney. Doswell v. State, 158 Tex.Cr.R. 447, 256 S.W.2d 416, and cases cited.

(2) There was no acceptance of the court’s reasons for refusing to approve the bills of exception as required by Art. 760d Vernon’s Ann.C.C.P. Cook v. State, Tex.Cr.App., 356 S.W.2d 149; Campos v. State, 172 Tex.Cr.R. 179, 356 S.W.2d 317.

(3) The complained of remarks were not of such prejudicial nature that an instruction from the court could not remove the harmful effect thereof. No objection was made and no request for instruction to disregard the remarks.

(4) The six year old eye witness is not shown to have been an incompetent witness.

The remaining ground upon which reversal is sought is based upon the statement of Juror Garbade, during the deliberations of the jury, in the presence and hearing of Juror Schroeder: “I was close to the Sellers case and when he was sentenced he said T am glad I did it.’ This kind of thing has got to be stopped.”

The statement of facts on the motion for new trial does not appear to have been filed separately, as required by statute. Art. 759a, Sec. 6, Vernon’s Ann.C.C.P.

Being a death penalty case, we have carefully examined the record from which it appears that the quoted statement of the Juror Garbade referred to a murder case tried several months previously in the same court, wherein one Sellers pleaded guilty to the murder of his daughter and received life or a 99 year sentence. It was shown to be an “offhand remark” which the only juror who heard it said he did not pay much attention to, he having already firmly decided that the only proper punishment in this case would be death.

Assuming that the matter is properly before us, the juror’s remark does not warrant reversal. Lera v. State, 144 Tex.Cr.R. 619, 165 S.W.2d 92; Wilson v. State, Tex.Cr.App., 352 S.W.2d 114; Turner v. State, Tex.Cr.App., 331 S.W.2d 319; Tellez v. State, 162 Tex.Cr.R. 456, 286 S.W.2d 154.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

In his motion for rehearing, appellant urges for the first time, as a ground for reversal of the conviction, that a part of the proceedings at the hearing of his motion for new trial was in his absence. Appellant alleges in his motion, which he supports by the affidavits of his two trial attorneys, that upon the hearing of the motion for new trial a typewritten transcript of the district attorney’s jury argument was introduced in evidence, with the agreement that it be later corrected by the parties after they had heard an electronic transcription of the argument made at the trial. Appellant alleges that after the court had overruled his motion for new trial and he (appellant) had been removed from the courtroom and taken to jail, the state’s prosecuting attorney and his attorneys did listen to the electronic transcription of the district attorney’s argument and at such time made numerous deletions, additions, and insertions in and to the typewritten copy of the argument previously introduced in evidence.

Appellant insists that such action in his absence was in violation of his right to be confronted with the witness against him, as guaranteed by Art. 1, Sec. 10, of the Constitution of Texas, Vernon’s Ann.St., and was a denial of due process guaranteed to him under the Fifth and Fourteenth Amendments to the Constitution of the United States and Art. 1, Sec. 19, of the Constitution of this State.

While this court is not authorized to consider affidavits attached to motions for rehearing, setting up matters not shown by the record, in view of the penalty assessed we have examined them and the questions presented and fail to perceive any reversible error.

The mere correction of appellant’s exhibit in his absence, after the motion for new trial had been overruled, was not “evidence” being introduced from the witness stand. The proceeding was not such a part of appellant’s trial as to require his presence, under the provisions of Art. 580, Vernon’s Ann.C.C.P.

Error is now urged for the first time to the admission in evidence of state’s exhibit # 7, which appellant alleges was an inflammatory photograph of the bloody body of the deceased. The exhibit does not appear in the record and it is charged by appellant that the same has been secreted and suppressed by the district attorney and sheriff of Fayette County, thereby depriving him of its use on appeal. An examination of the record reflects that state’s exhibit # 7 was admitted in evidence after Sheriff Flournoy testified that it “truly represented that which it purported to show.” Appellant’s only objection to the exhibit was his statement: “the man who took the picture is not here.”

The admission of the photograph in evidence was not error.

On the question of the alleged suppression of the photograph by the district attorney and the sheriff, certain affidavits are presented in the record by both appellant and the state. The affidavits of appellant’s trial counsel state, in substance, that the photograph (Ex. 7) introduced in evidence was in possession of the sheriff and that when they went to him he informed them that he did not have the photograph and did not know where it was.

Sheriff Flournoy, in his affidavit, states that he had made a diligent search of the files in his office and was unable to find the photograph. District Attorney Barber, in his affidavit, states that he did not keep possession of the photograph after the trial and that a thorough search of his office did not reveal the exhibit.

Under the record presented, we are unable to agree with appellant’s contention that said exhibit was shown to have been secreted by the district attorney or sheriff.

Appellant further alleges in his motion for rehearing that during the trial the district attorney suppressed evidence of appellant’s insanity and that Deputy Sheriff Adamcik, who refuses to make an affidavit, if called on as a witness will testify that he had appellant under arrest within an hour after the commission of the crime and, in his opinion, appellant was completely out of his mind and insane, and that the prosecution knew of this condition.

The affidavit of Deputy Sheriff Adamcik is presented by the state, in which he swears:

“ * * * I have never thought that Edwin Marious Bertsch was insane at any time. * * * ”

District Attorney Barber also presents his affidavit, in which he states:

“At no time, either prior to, during, or subsequent to the trial of the said Edwin Marious Bertsch did the Sheriff, or any Deputy Sheriff, of Fayette County, Texas, or any other credible person, in any way tell me or even indirectly intimate to me that in their opinion the Defendant, Edwin Marious Bertsch, was insane at the time of the commission of the offense for which he was tried, or that he was in any way insane or unable to assist his counsel in his defense at the time of trial of the said case.”

We overrule the contention that evidence was suppressed.

Other contentions urged by the appellant have been carefully considered and are overruled.

The motion for rehearing is overruled

Opinion approved by the court.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    O. D. GARY, Appellant, v. The STATE of Texas, Appellee.
    No. 37003.
    Court of Criminal Appeals of Texas.
    June 3, 1964.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery; the punishment, five years.

The sole question presented for review is the sufficiency of the evidence to corroborate the testimony of the self confessed robber and accomplice witness, Willie Moore. The witness Fant, an operator of a service station in Lubbock testified that at “just about dusk dark” on the night in question he observed a white and green Cadillac which “ * * * looked like about a ’57” parked at the curb some distance from his station, that a man (whom he later ascertained to be Moore) got out of the Cadillac, came in the station, secured change for a package of cigarettes, that while he was pursuing his other duties he became suspicious that Moore was attempting to gain entrance into his cash register and accused him of the same. He stated that Moore denied any such intent and returned to the Cadillac which was occupied by another colored man whom he was unable to identify, and the same was driven away before he could secure the license number. Fant testified that at approximately 2:45 a. m. the next day Moore returned alone to his station and robbed him at gun point of the money in the cash register. It should be noted that Fant neither saw nor heard an automobile at the time of the robbery.

The money itself was marked for identification and was shown by the arresting officer’s testimony to have been recovered from Moore’s pockets soon after the holdup when he was arrested a short distance from the station while seated in the rear of a white and green Cadillac driven by appellant, who was accompanied by a woman friend. The Lubbock policeman had stopped appellant’s automobile in response to a dispatch and, in addition to finding the money on Moore’s person, also discovered that Moore was attempting to hide a pistol between his legs by covering it with his hands.

Appellant testifying in his own behalf denied that he had been in company with Moore earlier in the evening and testified that he and his girl friend had come upon Moore, whom he had known for a number of years, as he was walking alone some three blocks from the service station in question, had offered him a ride, and that Moore had gotten in the back seat shortly before his automobile was brought to a halt by the police.

This is the evidence in the case, outside of Moore’s testimony that he had spent the evening with appellant, and that appellant had furnished the pistol and the stocking which he wore over his face during the commission of the robbery. It was his testimony that he had agreed to divide the proceeds of the robbery with appellant as compensation for driving him to and from the station, but that he had not done so because of their early apprehension by the police.

We have concluded that the evidence offered is insufficient to corroborate Moore’s testimony and to support a finding of guilt. McCain v. State, 168 Tex.Cr.R. 407, 328 S.W.2d 295; Thomas v. State, 166 Tex.Cr.R. 331, 313 S.W.2d 311; Barnes v. State, 253 S.W.2d 440; Thompson v. State, 124 Tex.Cr.R. 661, 65 S.W.2d 299; Turner v. State, 108 Tex.Cr.R. 486, 1 S.W.2d 642; Carter v. State, 104 Tex.Cr.R. 163, 283 S.W.174; and Jamail v. State, 99 Tex.Cr.R. 127, 268 S.W. 473. The judgment is reversed and the cause remanded.


author: McDonald, judge.

text:
    Ex parte Johnny CRAWFORD.
    No. 36989.
    Court of Criminal Appeals of Texas.
    June 3, 1964.
    Johnny Crawford, relator pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an original application for writ of habeas corpus wherein relator attacks as void the conviction under which he is confined in the state penitentiary.

Relator was convicted of the offense of assault with intent to rob in Cause No. 51,-290 on January 27, 1950, and received a four year sentence which was probated. On January 2, 1951, said probation was revoked.

The record reflects that although relator was represented by counsel during the trial of said cause, he was not so represented during the proceedings revoking his probation on January 2, 1951. Subsequent to his conviction in Cause No. 51,290, relator was convicted in Cause No. 53,953 of the offense of robbery by assault and with the above prior conviction used for enhancement purposes, received a life sentence.

The contention is made that since relator did not have counsel when his probation was revoked, the conviction could not be properly used for enhancement purposes. In concluding that the enhancement was proper, we refer to the language in Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774, where it was stated:

“ * * * the proceeding to revoke probation is not a trial, as that term is used and contemplated by the Constitution in reference to criminal cases, and is not a proceeding required to he conducted as such a trial.
“Appellant was not, therefore, entitled to a jury trial upon the issue as to whether he had violated the terms of probation or whether the probation should be revoked.”

Following the above reasoning, it also follows that appellant, in the instant case, was not entitled to an appointed counsel during the proceedings to revoke his probation.

In so concluding, we point out that a valid judgment and probated sentence were rendered against relator on the 27th of January, 1950, and no appeal was made therefrom. When the probation was revoked, an attack could no longer be made upon the merits of the conviction. Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59; Ex parte Sistrunk, 171 Tex.Cr.R. 336, 349 S.W.2d 728; Ex parte Clark, 164 Tex.Cr.R. 385, 299 S.W.2d 128. In Gossett v. State, supra, it was held that under Art. 781b, Vernon’s Ann.C.C.P., when judgment had been pronounced and sentence suspended, this is “a conviction” from which an appeal could be taken, even though sentence had not been pronounced.

When a prior offense is used for enhancement purposes, it is but a historical fact to show the persistence of the accused, and a guide for the court or jury in affixing the punishment in the event of a present conviction. Sigler v. State, 143 Tex.Cr.R. 220, 157 S.W.2d 903; 16 Tex.Jur. 2, Sec. 403.

The relief prayed for is denied.


author: WOODLEY, Presiding Judge.

text:
    Frank H. BRIM, Appellant, v. The STATE of Texas, Appellee.
    No. 37029.
    Court of Criminal Appeals of Texas.
    June 3, 1964.
    No attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appeal is from a conviction under Art. 5221b-14 Vernon’s Ann.Civ.St., for making a false statement in writing with the intent to obtain benefits under the Texas Unemployment Act.

Trial was before the court on a plea of guilty and the court assessed a fine of $100.00 as punishment.

In the judgment appearing in the transcript the appellant was adjudged guilty of “false swearing” which is a felony.

The judgment is reformed so as to conform to the information and adjudge the appellant guilty of making a false statement in writing with the intent to obtain benefits under the Texas Unemployment Compensation Act.

No statement of facts accompanies the record and there are no bills of exception.

As reformed, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Arnella THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 36657.
    Court of Criminal Appeals of Texas.
    May 13, 1964.
    Rehearing Denied June 17, 1964.

      Percy Foreman, King C. Haynie, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr., and Allen Stilley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, ten years.

The evidence of the state sufficiently shows that the appellant caused the death of the deceased by shooting him with a pistol.

Testifying in her own behalf, the appellant stated that while she and the deceased were struggling and scuffling for the possession of the pistol it was accidentally discharged, killing the deceased.

The court in its charge submitted the defense of accident, and also self-defense against real and apparent danger.

It is insisted that the trial court erred in limiting the number of witnesses who would testify that appellant’s general reputation for being a peaceful and law-abiding citizen was good, in the absence of an unequivocal stipulation before the jury by the state that appellant’s general reputation in these respects was good.

The appellant properly filed her application for a suspended sentence, which she supported by the necessary proof, and the issue of the suspension of her sentence was submitted to the jury.

Art. 778 C.C.P., concerning procedure as to the suspension of a sentence, provides in part as follows:

“The court shall permit testimony as to the general reputation of defendant to' enable the jury to determine whether to recommend the suspension of sentence * *

In accordance with the provisions of the above statute,' the appellant offered testimony as to her general reputation for being a peaceful and law-abiding citizen by four character witnesses who testified that her reputation to this effect was good. Upon inquiry by the court, the appellant stated she would call ten or twelve more reputation witnesses. At this time, the state offered to stipulate that the remaining character witnesses would testify the same as the previous character witnesses, that appellant’s reputation for being a peaceful and law-abiding citizen was good. To such stipulation the appellant objected, on the ground that the stipulation should be that she bore such good reputation and not that the witnesses would so testify.

The court refused to permit the appellant to introduce any further testimony from other reputation witnesses, or to read their names, or to ask them to stand. In order to perfect his bill of exception to such refusal, the appellant called nine more reputation witnesses who testified before the court in the absence of the jury that such reputation of appellant was good. Appellant again asked to introduce the testimony of the nine witnesses before the jury, and such request was by the court refused.

The purpose of introducing evidence upon any issue is to establish as a fact the matters testified to by the witnesses. If the state had fully admitted that appellant’s general reputation for being peaceful and law-abiding was good, the appellant would not be in any position to complain; otherwise the court should not limit the introduction of this character of testimony, unless’ carried to an extreme.

Not until the appellant had introduced the testimony of four character witnesses did the state offer to stipulate, and such offer was that the remaining character witnesses would testify the same as those who had previously testified. From the record it does not appear that appellant had been forewarned or that she could anticipate the course the state would pursue as to her character witnesses or the ruling of the court thereon. At no time did the state unequivocally admit that appellant’s general reputation for being a peaceful and law-abiding citizen was good, or that the prof.fered testimony of the remaining nine character witnesses was true'. In the face of the court’s refusal to admit the testimony of the niné witnesses before the jury, the ap-pellant was denied the opportunity to select from all of his character witnesses those whose testimony would, in her judgment, be more effective in her behalf with’ the jury.

1 Branch’s Ann.P.C.2d 176, Sec. 170, reads in part as follows:

“Where the State fully and unequivocally admits that the character witnesses of the defendant would testify as claimed by him, and that such testimony was true, the rule is that the court may decline to hear further testimony on such matter. Wagley v. State, 87 Crim 504, 224 S.W. 687; Davis v. State, 106 Crim 46, 290 S.W. 163; Griffith v. State, 145 Crim 465, 169 S.W.2d 173.”

See also: 4 Branch’s Ann.P.C.2d 592, Sec. 2237; Freddy v. State, 89 Tex.Cr.R. 53, 229 S.W. 533.

In considering a similar contention in Manley v. State, 62 Tex.Cr.R. 392, 137 S.W. 1137, this Court said :

“Appellant complains that th: court after hearing some witnesses testify that his reputation for truth and veracity was good, and that he bore the reputation of being a peaceable and law-abiding citizen, erred in not permitting him to introduce other witnesses who would testify to the same facts. If the state admitted that appellant’s reputation in these respects was good, there was no error; otherwise the court should not limit the introduction of this character of testimony, unless carried to an extreme.”

“The right to suspension of sentence is a substantial and valuable one, which should be carefully guarded; it should not be taken from the accused in any case where he reasonably brings himself within the terms of the law.” 12 Tex.Jur., 743, Sec. 369; 16 Tex.Jur.2d, 655, Sec. 420.

The statutory right of an accused to introduce testimony of his general reputation for the consideration of the jury in determining whether to recommend the suspension of his sentence is not limited by the above rule, unless the state unequivocally admits that he bears a good reputation, or after he has offered the testimony of a reasonable number of witnesses in support of his reputation.

For the reasons pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the Court


author: MORRISON, Judge. BELCHER, Commissioner.

text:
    Genevieve Florence SANTOS, Appellant, v. The STATE of Texas, Appellee.
    No. 36627.
    Court of Criminal Appeals of Texas.
    March 4, 1964.
    Rehearing Denied April 29, 1964.
    Second Motion for Rehearing Denied June 10, 1964.
    John J. Browne, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr., and Edward N. Shaw, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of marihuana ; the punishment, three years.

Officers of the Houston Police testified that armed with a search warrant they went to appellant’s apartment, and when she opened the door they executed the warrant and on a coffee table in front of her found a purse which contained letters and identification cards bearing her name and a cellophane bag containing three cigarettes which were later proven by a chemist to contain marihuana.

Appellant did not testify or offer any evidence before the jury in her own behalf.

The sole question presented on appeal is the validity of the search warrant. The affidavit and the warrant are one instrument. The description of the premises to be searched appears only in the affidavit. The warrant incorporates the affidavit by reference. In the absence of the jury, Officer Gentry, one of the affiants to the affidavit for the search warrant, testified that he and his fellow officer went to the office of Justice of the Peace W. C. Ragan, made an affidavit and secured a search warrant from the Judge, but that within 10 minutes thereafter, and before they reached the place to be served, he discovered that a typographical error had been made by the secretary in that the affidavit contained the digit 6 after the word apartment number. He testified that they immediately returned to the Judge’s office, and at their request, the Judge wrote the digit 2 in ink over the typewritten 6 and initialed such change, following which they executed the warrant by searching apartment number 2 where appellant resided. He denied that he ever secured the keys to apartment number 6 from the apartment house manager or that he searched such apartment.

Appellant called Mrs. Davis, the apartment house manager, and her friend, Mrs. Hartman, who testified that on the day in question a man came to the apartment house, exhibited credentials and a warrant, asked for the key to apartment number 6, which was furnished him, and which he later returned to Mrs. Davis, and then left. Neither of the ladies were able to identify any of the Narcotic Officers who were brought into the courtroom as being the man about whom they had testified.

Judge W. C. Ragan testified that his search warrant book showed that he issued a warrant to Officer Gentry and his associate to search apartment number 2 at the address in question and identified his initials and the digit 2 on the warrant as being in his handwriting and as having been changed by him “before they executed the warrant” fom the number 6 as “first written up”.

Officer Chavez corroborated Gentry’s testimony that they did not speak to the apartment house manager and did not search apartment number 6.

The court resolved any conflict that might have existed in the evidence against appellant, and we find no abuse of discretion in admitting the fruits of the search.

We do not agree that the above facts constitute an alteration of the affidavit so as to render the warrant void. Reliance is had, among other authorities, upon Buchannan v. State, 114 Tex.Cr.R. 418, 25 S.W.2d 838. Though the opinion does not reveal such facts, the record does show that the Justice of the Peace in that case testified that he did not know if the initials were inserted before or after the search, and the Sheriff’s testimony is silent on the question. This is not a case where alterations were made by one party in the affidavit of another and which had already been filed such as was the case in Broadhead v. State, 157 Tex.Cr.R. 634, 252 S.W.2d 194, nor is it a case where there was a parole agreement to add certain descriptions at a later date as in Rives v. State, 107 Tex.Cr.R. 370, 296 S.W. 576.

We have concluded that when the officers discovered a typographical error in the affidavit and went back to the Magistrate who had administered the oath to them originally and requested that he make their affidavit speak the truth before they executed the warrant, they in effect swore to the affidavit as corrected and it was not necessary for them to again go through the formalities of holding up their hands and having the oath administered to them a second time. Vaughn v. State, 146 Tex.Cr.R. 586, 177 S.W.2d 59. This in effect was a new affidavit and a new warrant.

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

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

Upon a re-consideration of appellant’s contention that the search warrant is invalid, we have concluded that such contention was properly disposed of originally.

Appellant now urges two other contentions for reversal which she did not brief and present on original submission.

She complains of the admission of the testimony of an officer that the appellant lived at the apartment in question. The court overruled her objection that it was not admissible unless the officer knew such fact of his own knowledge.

The evidence reveals that as the officers approached the apartment they saw the appellant open the door. When she was informed they had a search warrant, “She turned around and started walking back into her apartment,—” where her husband was sitting on the couch. Officer Gentry testified, without objection, that he had been previously to the apartment. No reversible error is reflected in admitting this testimony.

Appellant also urges error in the admission of the testimony of a chemist as to the results of an analysis of the contents of a capsule, over her objection that the capsule had not been identified, or had it been marked for identification or introduced in evidence.

Officer Ford testified that he found a gelatin capsule, containing a brown powder, on the floor directly in front of the coffee table where the appellant was sitting. In response to his question as to whom the capsule belonged, the appellant said: “That is mine. I will take it.” Officer Ford testified that he turned the capsule over to the crime laboratory by dropping it into the lock box on the fourth floor of the police station.

Chemist McDonald, supervisor of the crime laboratory, testified that records were kept of the narcotics submitted to the crime laboratory for analysis; that he did not recall seeing Officer Ford turn the capsule in to the laboratory, but stated that the records reflected that he submitted the capsule to the crime laboratory for analysis, that the number was L16051, and that he removed the capsule, analyzed it, and it contained one grain of heroin.

The testimony sufficiently identified the capsule and authorized the admission of the testimony concerning it before the jury. The fact that the capsule was not marked by the court reporter for identification or introduced in evidence would not alone exclude proper testimony pertaining to it.

Appellant’s motion for rehearing is overruled.

Opinion approved by the Court.


author: FANNING, Justice.

text:
    COMMUNITY INNS FRANCHISE, INC., Appellant, v. Sam PLUMMER et al., Appellees.
    No. 7580.
    Court of Civil Appeals of Texas. Texarkana.
    April 28, 1964.
    Garrett & Garrett, Fort Worth, for appellant.
    E. E. Brewer, Angleton, Kenneth Furlow, Beaumont, for appellees.
   FANNING, Justice.

This is a venue case. Plaintiffs-appellees, residents of Brazoria County, brought a declaratory judgment suit in Jefferson County against defendant-appellant, a Texas corporation, a resident of Tarrant County.

Plaintiffs’ pleadings pertinent to venue were in, essence to the effect that they negotiated with defendant’s agent in connection with a franchise agreement, but that plaintiffs never entered into any such agreement, that defendant is claiming that there is a franchise agreement with the further claim by defendant that plaintiffs owe $7,500.00 to defendant as a franchise fee, that defendant has threatened to interfere with the operation of Hotel Beaumont, and plaintiffs in said suit seek a declaratory judgment to determine whether or not there was a valid franchise agreement, etc.

Defendant filed a plea of privilege to be sued in Tarrant County and plaintiffs filed a controverting affidavit relying upon Subdivisions 5, 14 and 23 of Article 1995, Vernon’s Ann.Civ.St.

The plea of privilege was overruled and defendant has appealed.

Appellant attempted to sell appellees a franchise and management contract. It is undisputed that the parties never entered into said contract. However, appellees needed the franchise contract in connection with obtaining a loan to finance the purchase of Hotel Beaumont. The franchise agreement, signed by appellant only, was furnished to appellees with the understanding that appellee Plummer would pay $7,500.00 upon the happening of certain conditions precedent. The only claim appellant has is based upon the promise in the letter by Plum-mer that “ * * * I will be responsible to pay this fee ($7,500.00) to you when and if the Hotel Beaumont purchase is completed and your organization takes over this facility.”

As hereinbefore stated, no franchise agreement was made. The only dispute between the parties is whether or not appellees are obligated to pay the $7,500.00 promised by Plummer in his letter. No place for payment is stated in this writing.

It is clear that venue of appellees’ suit cannot be maintained in Jefferson County, Texas, under Subdivision 5 of Art. 1995, V.A.C.S., since no written contractual obligation pertinent to this case was to be performed in Jefferson County, Texas. Subd. 5, Art. 1995, V.A.C.S.; 1 McDonald, Texas Civil Practice, § 4.11.

Subdivision 14 of Art. 1995, V.A. C.S., is also clearly inapplicable to sustain venue in Jefferson County, Texas. The only allegation in plaintiffs’ petition even remotely related to Subd. 14 is that “Defendant has threatened to interfere with the plaintiffs’ operation of the Hotel Beaumont.” There is no allegation that defendant claims any interest in Hotel Beaumont or in any land in Jefferson County, Texas. Defendant’s threat to sue to collect the $7,500.00 allegedly due it would not constitute an injury to land. Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706. Also there is no evidence of probative force in the record that defendant threatened to actually “interfere with the plaintiffs’ operation of the Hotel Beaumont.”

Subdivision 23 of Art. 1995, V.A. C.S., is also clearly inapplicable as there is no evidence of any probative force that any part of appellees’ cause of action, if appellees had any cause of action, arose in Jefferson County, Texas. The suit at bar for which venue is to be decided is simply for a declaratory judgment that no cause of action exists in favor of defendant against plaintiffs. General venue rules apply, as the Declaratory Judgment Act,. Art. 2524 — 1, V.A.C.S., does not fix venue.

Plaintiffs-appellees having failed to show any exception to the general venue statute, Art. 1995, V.A.C.S., so as to show venue of this cause to be in Jefferson County, Texas,, it follows that appellant’s plea of privilege should have been sustained.

The judgment of the trial court is reversed and judgment is rendered transferring the cause to a District Court of Tarrant County, Texas.

Reversed and rendered.


author: ARCHER, Chief Justice.

text:
    William S. BURFORD et al., Appellants, v. CITY OF AUSTIN et al., Appellees.
    No. 11189.
    Court of Civil Appeals of Texas. Austin.
    May 13, 1964.
    Rehearing Denied June 10, 1964.

      Will Wilson, Joe Osborn, Austin, for appellants.
    Doren R. Eskew, City Atty., Paul D. Jones, Asst. City Atty., Clark, Thomas, Harris, Denius & Winters, Mary Joe Carroll, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from the judgment of the trial court upholding an amendatory zoning ordinance changing the zoning classification of three adjacent lots from zoning permitting only a single-family or duplex to that permitting an apartment house.

Appellants are home and property owners in the neighborhood or area of the lots and brought this suit seeking a declaratory judgment that the ordinance was invalid and a temporary injunction, which was granted. On the hearing before the court on the merits, the temporary injunction was dissolved and judgment entered denying the relief sought and upholding the validity of the ordinance.

The appeal is predicated on eight points assigned as error and are in effect that the court erred in failing to hold that the ordinance was invalid because such creates a spot zone contrary to the principle; that spot zoning is illegal; that the ordinance was invalid as being arbitrary and unreasonable and not within the authority to zone delegated to cities by Article 1011a, Vernon’s Ann.Civ.St., in that this ordinance failed to further the health, safety, morals, or general welfare of the community and because there is no public need for additional land zoned for apartments or apartment hotels and because Mayor Lester Palmer was legally disqualified to vote for the passage of the ordinance; that the court erred in excluding evidence of the relationship between interested parties because such evidence would have shown the arbitrariness of the action of the council.

The ordinance in question in part reads as follows:

“ORDINANCE NO. 63 0214-B
“AN ORDINANCE ORDERING A CHANGE IN USE AND HEIGHT AND AREA AND CHANGING THE USE AND HEIGHT AND AREA MAPS ACCOMPANYING CHAPTER 39 OF THE AUSTIN CITY CODE OF 1954 AS FOLLOWS: FROM ‘A’ RESIDENCE DISTRICT AND FIRST HEIGHT AND AREA DISTRICT TO ‘B’ RESIDENCE DISTRICT AND SECOND HEIGHT AND AREA DISTRICT ON THREE (3) TRACTS OF LAND FRONTING 218 FEET ON THE WEST RIGHT-OF-WAY LINE OF SALADO STREET AND 218 FEET ON THE EAST RIGHT-OF-WAY LINE OF SAN PEDRO STREET, LOCALLY KNOWN AS 2810-2816 SALADO STREET AND 2811-2817 SAN PEDRO STREET, IN THE CITY OF AUSTIN, TRAVIS COUNTY, TEXAS ; AND SUSPENDING THE RULE REQUIRING THE READING OF ORDINANCES ON THREE SEPARATE DAYS.
“BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF AUSTIN:
“PART 1. Chapter 39 of the Austin City Code of 1954 is hereby amended to change the USE and HEIGHT and AREA designations from ‘A’ Residence District and First Height and Area District to ‘B’ Residence District and Second Height and Area District on the following described property, to-wit:
“Three (3) tracts of land fronting 218 feet on the west right-of-way line of Salado Street and 218 feet on the east right-of-way line of San Pedro Street, beginning at a point 200 feet south of the south right-of-way line of West 28^ Street; and having a depth of 151.66 feet.
* * * * * *
“PART 2. It is hereby ordered that the USE and HEIGHT and AREA maps accompanying Chapter 39 of the Austin City Code of 1954 and made a part thereof shall be changed so as to record the changes ordered in Part 1 of this Ordinance.”

At a regular meeting of the City Council on December 16, 1962, the zoning application involved in this proceeding was heard and action was had as follows:

“The Planning Director gave a resume of the area and of the changing conditions, and stated after considerable study, the Planning Commission found that ‘BB’ Residence 1st Height and Area was the most suitable zoning for the area. He pointed out development would be slow. This classification was recommended in the Master Plan. MR. A. W. PENN, representing himself and a large group of home owners, opposed the change that would affect a great number of University professors who had built the area up and maintained it. He pointed out the streets were not designed to take care of the type of parking that would result from this development. DR. G. SMITH, Director of Law Science Institute expressed opposition against apartment development, as the area was not a degraded area, and that apartments are not as desirable as some might think. A law student who manages Windsor Oaks and River Oaks Apartments expressed opposition, pointing out many disadvantages to an area by the development of the multi-unit apartments; that those paying $200 monthly had to walk two blocks from their parked cars to their apartment; that tenants were coming and leaving at all hours of the night; and that there were more parties in the big apartment houses than the smaller ones. MR. THEO BELLMONT, representing himself and the Heritage Society opposed the change, stating his protest was on the interior of the area rather than on the boundary street; and if it were changed for multi-apartments, it is the beginning of the end of this neighborhood for these University professors. MRS. C. T. GRAY opposed the change that would permit multi-unit apartments as they are not popular with the tenants or the neighbors. MRS! LEON DONN believed the off-street parking requirements would be inadequate in this area, and suggested that 2i/£ parking spaces should be required. She inquired if easements would be required from those properties on which apartments would be made to widen the street to provide for parking. She asked that the zoning of the area be postponed until after the zoning study now under way is completed. MR. LEO HUGHES asked the Planners of Austin to have more vision, and to keep Austin the unique city that it is by intelligent planning. MR. PENN filed a petition signed by 90% of the property owners, protesting the change, and stating this was a general petition showing the wishes of the people. MRS. CLICK, 3202 West Avenue, opposed the change;, also Mr. C. T. Johnson, who asked a five year waiting period before the change was granted. Opposition was added by MRS. A. W. PENN and J. L. WALL. MRS. JOHN BARROW spoke regarding the Planning Commission’s recommendation and regarding the Austin Development Plan as defined by Mr. Leo Hughes. Mrs. Barrow represented the Friends Meeting of Austin, and stated the zoning to limited apartments would not affect this organization, and stated this apartment development would cover a five to fifteen year period.
“MR, RICHARD BAKER, representing MR. LINDEN JONES in his application at 3113-3117 West Avenue and 709-715 West 32nd, stated Mr. Jones would construct 16 apartment units on this property, and the plans showed from two to three off-street parking spaces per unit. This application had been filed eight months ago, and considerable study had been made, and the ‘BB’ zoning complies with the requirements of .the Master Plan, streets, utilities, uses and density. He stated this area was changing. Mrs. Dorm opposed this individual application, and asked that action on this be postponed also. The Director of Planning, pointed out most of the tracts of land in the area were small, and it would be hard for one to acquire enough tracts on which to build a 50 unit apartment, and the type of apartment development would be of small scale. Mayor Palmer pointed out the advantages of these area studies. After discussion, Councilman Shanks moved that the change to ‘BB’ Residence be granted, as recommended by the Planning Commission. The -motion, seconded by Councilman White, carried by the following vote:
“Ayes: Councilmen Perry, Shanks, White, Mayor Palmer
“Noes: Councilman Armstrong”

An ordinance in conformance with that adopted by the council was enacted with provisions as to regulations.

The record in this case is long, but the material facts are not in dispute except as to the character of the lots and the area or district in which the lots are situated.

We are inserting herein a map of the area from 24th Street on the south to 29th Street on the north, North Lamar on the west 'and Guadalupe on the east.

The area or neighborhood claimed to be affected by the zoning extends from 28th Street on the south and to West 29th Street on the north and bounded by North Lamar on the west and by an alley on the east with some commercial or non-residence property within the area extending to Nueces Street

The chief complaint and we believe the controlling issue in this appeal is that of “Spot Zoning.”

As is to be seen by the map there is no dispute as to the physical facts as to width of streets, presence or absence of sidewalks, but the characteristics of the neighborhood, the need for additional apartments, the effect of the construction of an apartment building on the property is the subject of much testimony.

Any fact issue should be resolved in support of the judgment. Renfro Drug Company v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

A zoning ordinance is an exercise of the legislative power of the City Council and is presumed to be valid. City of Bellaire v. Lampkin, 159 Tex. 141, 317 S.W.2d 43, 66 A.L.R.2d 1289.

An amendatory zoning ordinance is presumed to be valid. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477.

There is an extraordinary burden of proof imposed on those attacking a zoning ordinance.

In the Waxahachie case the Supreme Court stated:

“The courts cannot interfere unless it appears that the ordinance represents a clear abuse of municipal discretion. And the ‘extraordinary burden’ rests on one attacking the ordinance ‘to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it.’ ” (Emphasis not ours.)

The authority of the courts in interfering with a municipal zoning ordinance is very limited. The proper test to be applied is whether reasonable minds may differ.

“If reasonable minds may differ as to whether or not a particular zoning restriction has a substantial relationship to the public health, safety, morals or general welfare, no clear abuse of discretion is shown and the restriction must stand as a valid exercise of the city’s police power. City of Corpus Christi v. Jones, Tex.Civ.App., 144 S.W.2d 388, error dism., correct judgt. Otherwise expressed by the court in the case just cited, if the issue of validity is fairly debatable courts will not interfere.” Waxahachie v. Watkins, supra.

The facts or particular circumstances are of extreme importance.

“ * * * the controlling considerations are seldom if ever, the same in any two cases. Hence final determination of the validity of the ordinance must turn on the circumstances of each case and the character of the regulations involved. See Annotation in 149 A.L.R., pp. 292, 293.” Waxahachie v. Watkins, supra.

By referring to the map it is apparent that the “area”, “neighborhood” or district is surrounded by non-residential developments.

The area immediately adajacent called “A” Residence District consists of approximately 25 lots and is bounded on the south by West 28th Street, on the west by San Pedro Street, on the north by West 28J4 Street and on the east by Rio Grande Street. There are, of course, other lots adjacent to the above area.

As we have said there was much testimony by witnesses for appellants and appel-lees as to the nature of the area, distances from the University and need for apartment housing. Testimony was given as to the development of the area as a whole and that there had been no new residences built in many years. Among those testifying were Hoyle Osborne, City Director of Planning, who considered the change to be spot zoning and recommended that the change be disapproved by the Council and specifically testified as follows:

“Q. Now, in the terminology of the planning profession, what is meant by the term ‘spot zone.?’
“A. Spot zone covers the following areas generally: One, that it be a departure from a comprehensive or general zoning plan for the community. Secondly, that it may be for a relatively small area generally surrounded by another larger area of a different zone. Third, that it might possibly confer either a special benefit to the particular individual owner or piece of property, or it might incur or impose certain specialized restrictions as opposed to that of the surrounding area. Fourth, that it is not specifically for the public welfare and benefit, as opposed to possibly a specific private or individual interest. Fifth, that it tends to depart from the conditions that are usually set out in this case in the State enabling legislation and in the City of Austin Zoning Ordinance concerning such matters as traffic and the ability of streets to carry this traffic, the provision of off-street parking, the provision of utilities, the provision of municipal services, the other items that are listed within the State enabling legislation and in the Zoning Ordinance as to the intent and purpose of the Zoning Ordinance. And generally the spot zoning will contain several or virtually all of these conditions in a rather marked sense, a noticeable sense.
“Q. State whether in your opinion as a planner the rezoning of the Wire property constituted spot zoning.
“A. Yes, it did.”

Ross Jacobs, a civil engineer working exclusively in the municipal field, testified as follows:

“Q. Mr. Jacobs, I ask you the question again: In your opinion does rezoning of the Wire property to ‘B’ Second Height constitute spot zoning?
“A. In my opinion, it does not.
“Q. Why, sir?
“A. Because of its nearness to similar zoning on the south, which was existing at that time, just below 28th Street.”

Marvin Springer, a witness for appellees, a city planner in Dallas, Texas, testified as follows:

“Q. All right, sir. Now, state in your opinion as an expert whether you believe the zoning of the Henry Wire property from ‘A’, First Height and Area, to ‘B’, Second Height and Area, is spot zoning.
“A. Taking into consideration the neighborhood area which we are concerned with here, the Land Use Plan which has been adopted by the City of Austin, the pattern of changes which have occurred over this period of time, which are generally consistent with that plan, I would not so consider this a spot zoning.
******
“Q. State whether or not in your opinion the zoning of the Henry Wire property is consistent with the Land Use Plan attached to the Master Plan.
“A. I would so interpret it, yes, sir.”

Appellants cite as controlling on the question of “Spot Zoning” the case of Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704, decided in 1950, five years before the case of Waxahachie v. Watkins, supra.

We do not believe that facts and circumstances in the Weaver v. Ham case are the same as in the instant case.

We believe that the Waxahachie v. Watkins case is controlling in our disposition of the instant case.

We do not attribute significance to the fact that Mayor Palmer, an employee of Mr. Drake, and who voted for the passage of the ordinance, constituted a legal disqualification of Mayor Palmer; and that the special exception to the allegations in plaintiffs’ petition setting up the alleged legal disqualification of Mayor Palmer was properly sustained.

A zoning ordinance represents an exercise of the legislative power of the city governing body and is not subject to attack grounded on the motives of a council member. Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945; City of San Antonio v. Fetzer, Tex.Civ.App., 241 S.W. 1034, error refused.

Appellants have cited a number of cases, some out of state and some in state cases in support of their position that Mayor Palmer was legally disqualified, such as Aldom v. Borough of Roseland, 42 N.J.Super. 495, 127 A.2d 190 (1956); State ex rel. La Crosse v. Averill, Tex.Civ.App., (1937) 110 S.W.2d 1173, writ refused; Moody v. City of University Park, Tex.Civ.App., 278 S.W.2d 912, error refused, n. r. e.

We have not set out in any detail the testimony as to the nature and usage of the property, believing that there is no serious factual dispute, and that the maps offer a fair presentation, but do note that the last .building permit for a single family dwelling to be constructed in the area was issued in .1951, about 11 years prior to the enactment of the zoning ordinance in question.

The judgment of the trial court is affirmed.

Affirmed.

DISSENTING OPINION

The majority states that in this case, “The facts or particular circumstances are of extreme importance.” I agree. The most significant fact in the record is that the three lots given special zoning classification by the Council are completely surrounded by lots which have the most restrictive classification in the City of Austin, “ 'A’ Residence and First Height and Area.” These lots and this area have been so restricted since the basic zoning ordinance was first enacted by the City in 1941.

Two of the three lots involved are vacant lots. There are five other vacant lots in this area, the zoning classification of which was not altered. In my opinion, the ordinance here attacked is a classic example of “spot zoning,” and should be invalidated. I, therefore, respectfully dissent.

Some more of the undisputed facts will be recited:

The neighborhood is quiet, desirable, and distinctly residential. The homes are well improved and carefully maintained. Large elm trees and pecan trees in many places completely overhang the streets. The people who live there are for the most part connected with the University — either faculty (both active and retired) or graduate students. Many of the homeowners are University of Texas faculty members. Several of the residents testified that they purchased their homes recently because of the unusual residential desirability of the area.

San Pedro Street has a paving width of only 22 feet and a right-of way of only 30 feet. The City of Austin presently requires new residential streets to have a right of way of at least 50 feet. In medium and high density areas, such as the ordinance in issue places subject property, the minimum right of way required is 60 feet. San Pedro Street, dedicated many years ago, actually grew out of what was once an alley. The result is that traffic on it is already very crowded. Today’s cars average six feet, eight and one half inches wide. With cars parked on each side, there is left only a few inches of maneuvering space for a moving car. Cars parked on each side can block large vehicles such as fire trucks and garbage trucks.

One witness, Mr. Towery, an area homeowner, described the San Pedro traffic as follows:

“Q. Would you describe for us what you have observed about the traffic in the last year on San Pedro Street?
“A. It is very crowded; cars parked on both sides of the street, facing both directions. And on San Pedro twice I have nearly been hit broadside, at 28th and San Pedro.
“Mr. Towery, does the width of San Pedro have anything to do with the traffic problem you are talking about?
“Yes, it is not really a street. It is more of an alley, really; at least in size.”

One of the City’s own experts, civil engineer Mr. Ross Jacobs, described the Salado and San Pedro Streets as:

“Q. State in your opinion what is the character of the streets * * * of San Pedro Street.
“A. They are very narrow, winding, and of short direction.
“Q. Why is it, in your opinion, that they are classified as residential streets ?
“A. Mainly because they don’t go very far. They are very short streets.
They have numerous jobs and dead-ends, and there is no way that through traffic can actually move through the area.”

A Second Height and Area classification had been denied to the previous owner of the subject property, E. M. Choate, Jr.

In May, 1960, Choate applied for change of the same tract’s Height and Area Classification from First to Second. This was opposed by the neighbors. The Planning Commission recommended that the change be denied. In June, 1960, the City Council unanimously denied the application. After this denial, Choate withdrew his earlier (1957) application for a change of the tract from “A” to “B” Residence District, without change of Height and Area Classification which had been recommended by the Planning Commission. This application had been pending before the City Council from 1957 until its withdrawal in August, 1960, without any final action being taken on it by the Council.

Shortly before the passage of the ordinance in question, the City Council made a significant comprehensive area zoning change within two blocks of the Choate tract. On December 13, 1962, it rezoned the thirteen blocks immediately north of 29th Street. This zoning change was from “A” Residence to “BB” District which permits multiple apartment units. The creation of this district by the City Council was recommended by the Planning Commission. This district contains approximately 300 lots.

Prior to its recommendation, the Planning Commission, upon being referred an application for such a change by an individual covering several lots, instituted a study of the entire area. This study included consideration of street widths, number of people living in the area, estimates of the future population expected in Austin, and consideration of present use of the area. One of the factors of the Commission’s recommendation was that creation of this thirteen block “BB” District would provide a large area for future multiple apartment development.

This carefully studied and comprehensive zoning amendment was duly enacted by the City Council only six days before the filing of the application for the zoning change here in dispute. On December 19, 1962, an application to change the zoning of subject three lots from “A” Residence, First Height and Area, to “B” Residence, Second Height and Area, was filed.

The lots in suit consist of two vacant lots and one lot with a duplex on it. These lots had been owned for a number of years prior to the application by E. M. Choate, Jr. who signed the December 19, 1962, application.

The Choate application was duly referred to the Zoning Committee of the Planning Commission. Pursuant to the requirements of Article 1011c, V.A.C.S., all homeowners within 200 feet of the subject lots were notified of the hearing. A considerable number of the owners appeared in protest against the application. After a public hearing held on January 8, 1963, the Zoning Committee recommended against granting the application, stating to the Planning Commission:

“The Committee felt that the request should be denied as it would be a spot zone, and to grant it would create too high an increase in traffic. The streets could not handle any additional traffic.”

At their meeting on January IS, 1963, the Planning Commission of the City of Austin recommended that the City Council deny the Choate application. Their minutes pointed out:

“A majority of the Commission felt that the request should be denied as it would be a spot zone and to grant it would create too high an increase in traffic. The streets could not be widened and could not handle any additional traffic. Some members felt that this would be the proper use for the area, once the streets are made adequate.”

The Austin City Council voted on the Choate application on February 7, 1963. To override the Planning Commission recommendation of disapproval, an affirmative vote of at least four of the five members of the City Council was required by Section 31 (b) of Chapter 32 of the City Code. The Council overrode the Planning Commission and granted the application by a vote of four to one.

Soon after the Council vote in favor of the zoning change, on April 1, 1963, Henry Wire, then record title owner of the three lots, applied for a building permit which was granted. The permit is for the construction of a two-story, 36-unit apartment hotel. The zoning change allows Wire to raise this to a maximum of 41-units on subject lots. The “B” Residence, Second Height and Area zoning permits an apartment hotel in which may be located a cafe, drug store, clothes pressing shop, and barber shop. The apartment house will accommodate 72 boys who are undergraduates at the University of Texas and will not have the supervision required by the University for “approved” housing. Wire testified that he did not intend to comply with the University requirements for approved housing.

To operate “approved” housing increases the overhead operational expense in that the owner is required to have a “house mother” on duty and graduate student supervisors. Wire admitted that he did not intend to incur this expense.

The City’s survey of car ownership of apartment dwellers shows that one and one half cars per unit, or 54 cars, will be based at the apartment house. In addition, there will be visiting or guest cars. While the location of this apartment hotel will hardly be noticeable in the traffic of the major thoroughfares of Austin, it will have a drastic effect on traffic in San Pedro and Salado Streets. The apartment hotel will generate a minimum of from 180 to 400 car movements per day and it could be many more. There are no sidewalks along San Pedro Street. The additional traffic generated will be hazardous to the children of the neighborhood. Children walking to school must walk in the street.

The construction of the apartment house would materially increase the likelihood of fire in the area.

Further parking on San Pedro Street would block its use for fire-fighting equipment and greatly handicap fire-fighting in the area. The Austin Fire Chief, R. H. Dickerson, testified:

“Q. As an expert in this matter, Chief, would you say that for San Pedro Street, assuming a twenty-five foot pavement, as you saw it there, to have a traffic condition that would bring about a parking on both sides of the street, would that be a definite fire hazard in your judgment?
“A. Well, if you had parking on both sides of the street, a twenty-two foot street from curb to curb, if they were not parked perfectly up against the curb, and part of them thrown out as you usually find, it would definitely block our entrance into a street of that width, yes, sir.”

Also, the Fire Chief testified:

“Q. Now, if that house caught fire and this street was blocked by parked cars, would that be a major handicap in fighting a fire in Dr. Burford’s house ?
“A. Yes, sir. Traffic congestion wherever we go is a hazard to our efficiency. If we can’t get through, we can’t lay our lines; if we caij’t; we can’t.
“Q. If you had this street blocked to your equipment by parked cars, would you be able to fight that fire?
“A. Well, there again, it would be like a house built on a hill with no entrance to it. You’d have to put a hose down as close to it as you could, and wherever it was blocked, puli'it up the street to the fire, and that’s a delay.
“Q. And the house might burn down in the meantime ?
“A. It’s according to how far advance it is. It isn’t going to help conditions any.”

Considerable noise will be generated by the imposition of seventy two unsupervised male undergraduates upon the neighborhood.

The City has not acquired the additional right of way necessary to widen either San Pedro or all of Salado Street in the area and has no plan to do anything about it. Although Wire donated a ten-foot strip on Salado, an additional strip must be acquired from the Owsley property next to Wire to the south. This has not been done. If this ten-foot strip is taken for Salado Street, the large trees in front of the property must be cut down. Henry Wire does not plan to make any effort to get San Pedro Street widened.

Yet to widen the right of way of San Pedro would destroy the front yards of several homes, and to widen either San Pedro or Salado would require cutting of many of the stately pecan and elm trees which have been there more than 40 years.

The City Council refused a request that action on the ordinance be withheld until proposed traffic and zoning studies of the area were made.

The City of Austin Master Plan, adopted in 1961, designates the section of the City in which subject property is located as High Density Residential. This designation calls for an average of fifteen dwelling units per acre over an extensive area. The zoning change given to the Wire property allows over twice the number of units per acre provided in the Master Plan.

In general, putting an apartment hotel in this location will completely change the character of the neighborhood.

Austin has approximately 1,000 acres within its city limits which were already zoned for multi-unit apartment use. Of this 1,000 acres, only about 330 acres is presently being used for multi-unit apartments. Thus only one third of the presently zoned apartment area is being devoted to such use at the present time. The recently zoned thirteen block area, a large and as yet undeveloped district for multi-unit apartments located right north of 29th Street, is available for this type of development — as well as a large area (already zoned for apartment hotels but as yet undeveloped) of land lying between this neighborhood and the University.

The view of the Zoning Committee of the Planning Commission and of the Planning Commission of the City of Austin that ordinance in suit constitutes spot zoning is supported by eminent authorities.

Yoldey, Zoning Law and Practice, 2nd Ed., defines “spot zoning” as follows:

“Cases become ‘spot zoning’ where obviously a particularly small lot or parcel of ground is singled out and placed in an area, the use of which is unconsistent with the small lot or area so placed and whose classification is changed in the ordinance, and in these cases where special benefits are sought to be conferred on a particular property owner, or special burdens are sought to be imposed upon particular property owners.”

In 101 C.J.S. Zoning § 34. this definition is given:

“Spot zoning is an attempt to wrench a single lot from its environment and give it a new rating- that disturbs the tenor of the neighborhood, and which effects only the use of a particular piece of property or a small group of adjoining properties and is not related to the general plan for the community as a whole, but is primarily for the private interest of the owner of-the property so zoned; and it is the very antithesis of planned zoning.”

Yokley, in referring to “spot zoning” calls it, “ * * * a most vicious practice that has expanded almost to a point where it has become a cancerous growth on the body politic in many, many municipalities of the land. * * * ”

In my opinion, this case is controlled by the decision in Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704. In that case the Court condemned as “spot zoning” an amending ordinance which created a Zone D (apartment house) island in the center of a Zone A (residential) district. In the course of its opinion the Court held:

“The power to vary conditions of zoning ordinances should be sparingly exercised, and such power should be exercised only for the benefit of the public and with due regard for the preservation of the rights of others acquired under original zoning ordinances.”

The Court also quoted approvingly this excerpt from the opinion of the United States Supreme Court in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016, as follows :

“ * * * ‘With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing tlie rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities, — until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. .Under these circumstances, apartment houses, which in a different environment would be not only entirely unobj ectionable but highly desirable, come very near to being nuisances.’ ”

I insert below a photograph of a scene on Salado Street a short distance from the Wire apartment project.

The exercise of little imagination is required to envision the change upon this peaceful, beautiful and dignified neighborhood which will be wrought by the advent of seventy two unchaperoned University boys, their friends and carriages.

I would strike down the ordinance in' suit and brand it a horrible example of discriminatory legislation,

      . The “island” in the Ham ease contained 220,000 square feet. The “island” in this case is only 32,000 square feet, or about y7th the size of the Ham island.


author: WILLIAMS, Justice.

text:
    Alton W. BEACH, Appellant, v. Donald M. RUNNELS, Appellee.
    No. 16344.
    Court of Civil Appeals of Texas. Dallas.
    May 15, 1964.
    Rehearing Denied June 5, 1964.
    Fanning, Billings, Harper, Pierce & Gil-ley, Donald A. Gilley, Dallas, for appellant.
    Thompson, Knight, Wright & Simmons, Pinkney Grissom, Timothy Kelley and John A. Gilliam, Dallas, for appellee.
   WILLIAMS, Justice.

On January 4, 1960 an automobile driven by Alton W. Beach collided with an automobile driven by Donald M. Runnels resulting in property damage and personal injuries to both parties. Runnels sued Beach in Cause No. 49,415, in the district court of Dallas county, seeking damages because of Beach’s alleged negligence. Beach owned an insurance policy issued by Southwestern Fire & Casualty Company which provided liability coverage which included an obligation by the insurance company to defend the pending suit. The policy also provided that the insurance company was to have the exclusive right to settle suits within the policy limits without the consent of the insured. Pursuant to the terms of this policy, Southwestern Fire & Casualty Company undertook the defense of the suit on behalf of Beach and, through attorneys provided by such company, filed an answer on his behalf. Beach, at the written invitation of the insurance company, retained his own counsel. After the suit had been pending for more than four months the suit was settled and compromised by the attorney representing the insurance company, without the consent of Beach and his personal attorney, and an order of dismissal was entered on May 31, 1960.

Thereafter, on June 7, 1960, the present suit was filed by Alton W. Beach against Donald M. Runnels, being Suit No. 52,350 in the district court of Dallas County, Texas, in which Beach sought personal injury and property damages against Runnels growing out of the same automobile collision that was involved in the first suit which had been dismissed on May 31, 1960. Runnels filed his motion for a summary judgment on the grounds that Beach’s cause of action was in the nature of a compulsory counterclaim under Rule 97(a), Texas Rules of Civil Procedure, and therefore barred by the order of dismissal in the prior suit involving the same parties and same accident. Beach filed an answer to the motion for summary judgment and also amended his petition wherein he sued not only Runnels but also his insurance carrier, Southwestern Fire & Casualty Company, alleging that if he should be prevented from recovering against Runnels because of the application of Rule 97(a), T.R.C.P., he nevertheless should be allowed to recover against the insurance company for its negligence, or lack of good faith, in entering into the order of dismissal when it knew that Beach intended V file a counterclaim. The trial •court granted Runnels’ motion for summary judgment on the ground that Beach’s claim against Runnels was barred by Rule 97(a), T.R.C.P. Thereafter Beach settled his suit against the insurance company, and perfected his appeal to this court from the order sustaining the motion for summary judgment.

Appellant’s sole point of error is that: '“The court erred in granting the defendant’s motion for summary judgment on the grounds that this action is barred as a compulsory counterclaim under Rule 97(a) of the Texas Rules of Civil Procedure.”

Appellant immediately concedes that the trial court’s application of Rule 97(a), T.R. C.P. to the facts in this case is in accordance with the settled law of this state. Robertson v. Melton’s Estate, Tex.Civ.App., 306 S.W.2d 811, err. ref.; Lacy v. Carson Manor Hotel, Inc., Tex.Civ.App., 297 S.W.2d 367, err. ref. n. r. e. Appellant seeks to distinguish the fact situation present in this case from the general rule saying, “Whether or not Rule 97(a) should be so applied under the circumstances is the sole question raised by this appeal, the appellant admitting that the facts of this case otherwise bring the action within the provisions of that rule, insofar as the present action clearly arises out of the same ‘transaction or occurrence’ that was the subject matter of the prior suit.”

Appellant assumes the burden of attempting to distinguish the present factual situation from the general rule by drawing emphasis to the fact that appellant was not a party to the settling of the prior suit and that entry of the order of dismissal in the prior suit was done without his knowledge or consent. Both appellant and appellee agree that there are no Texas authorities interpreting Rule 97(a), T.R.C.P. dealing with the identical factual situation and therefore this is a case of first impression in Texas.

A review of the authorities from other jurisdictions which involve interpretations of the same or similar rules as our Rule 97 (a), T.R.C.P., or the Federal counterpart, Rule 13(a), was involved, reveal two cases where the almost identical issue was presented and expressly considered.

In Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001, Keklikian sued Keller for damages incurred in a collision between their two automobiles. Keller turned the suit papers over to his insurance company which had issued a liability policy containing similar provisions to the one in the instant case, and which expressly authorized the insurance company to settle the suit without the acquiescence, consent or notice to the 'insured. Pursuant to this authority the attorney for the insurance company settled the claim and caused the suit to be dismissed. Several weeks later Keller sued Keklikian for damages which he had sustained in the same collision. The Supreme Court of Missouri disregarded Keller’s argument that the case had been dismissed without his knowledge or -consent and upheld the trial court’s judgment on the pleadings for the defendant On the sole ground that Keller’s claim was barred by his failure to plead it as a compulsory counterclaim in the first action as required by the Rules of Civil Procedure of Missouri.

In the case of Pesce v. Linaido, 123 So.2d 747 (District Court of Appeals of Florida, 1960), Molko instituted a claim against Pesce to recover for injuries which his son had sustained in ah automobile accident between Pesce and Molko’s minor son. Pesce’s insurance company proposed a settlement which was accepted by Molko and a friendly' suit was instituted to secure the court’s approval of the settlement and a judgment was entered approving the settlement. Thereafter, Pesce brought suit against both the owner of the car that Mol-ko’s minor son was driving and the minor driver for injuries which she had sustained in the same collision. The appellate court in Florida upheld the defendant’s motion for summary judgment upon the ground that Pesce’s cause of action was barred by the compulsory counterclaim rule of Florida even though the trial court found as a fact that Pesce had not been afforded the opportunity to file a counterclaim since she had no knowledge of the “friendly suit” proceedings.

A number of cases (not involving compulsory counterclaims) have been decided which uphold the action of the insurance company in taking action within the policy, and in barring the interest of the insured even though the company acted without the insured’s knowledge or consent. Aetna Casualty & Surety Co. v. Brooks, 218 Ga. 593, 129 S.E.2d 798; Ross v. Stricker, 153 Ohio St. 153, 91 N.E.2d 18; Kelleher v. Lozzi, 7 N.J. 17, 80 A.2d 196; A.B.C. Truck-Lines, Inc. v. Kenemer, 247 Ala. 543, 25 So.2d 511; Biggio v. Magee, 272 Mass. 185, 172 N.E. 336.

With full knowledge of the fact that the adjudicated cases above referred to are directly contrary to his position here, appellant urges us to solve his problem by establishing what he calls the “Texas Rule”. This proposed “Texas Rule” would employ the doctrine of estoppel. Appellant says:

“Thus, the proposed ‘Texas Rule’ would be that Rule 97(a) acts to estop a defendant who fails to file a compulsory counterclaim in a former suit from filing such claim in a latter suit; but, following the usual rules applicable to the principle of estoppel, where such defendant never knowingly fails to plead such counterclaim, there would be no estoppel and, therefore, no application of Rule 97(a).”

He argues that the adoption of this rule would have the effect of allowing the defendant’s insurance company to settle the. claim against the plaintiff without giving notice to their insured (thereby considering that claim on its merit solely) and still not damaging their insured by cutting off his counterclaim, which then could ultimately be pursued and determined on its merits.

Appellant asks us to amend or to engraft upon Rule 97(a), T.R.C.P. an exception which would exclude from its provisions cases in which a defendant fails to plead his counterclaim without knowledge of the settlement made by his insurance carrier. This court is without power to grant appellant’s request. The rule-making power is invested solely in the Supreme Court of Texas. Art. 1731a, Vernon’s Ann.Civ.St. The Court of Civil Appeals is not authorized or empowered to enact or amend rules of civil procedure.

Appellant’s point of error is overruled and the judgment of the trial court is affirmed.

Affirmed.

      . Rule 97(a), T.R.C.P.: “Compulsory Counterclaims. A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of tbe transaction or occurrence tbat is tbe subject matter of tbe opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.”