text:
    Wade G. HAMPTON, Appellant, v. The STATE of Texas, Appellee.
    No. 39478.
    Court of Criminal Appeals of Texas.
    April 13, 1966.
    Rehearing Denied May 25, 1966.

      Michael W. Wagner, San Antonio (By Court Appointment), for appellant.
    James E. Barlow, Dist. Atty., Charles T. Conaway, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for giving a worthless check of over the value of fifty dollars with a prior conviction alleged for enhancement; the punishment, ten years.

Era Wright testified that on March 30, 1965, she was the sole owner of the Wright Liquor Store or Wright’s Liquor Store in San Antonio; that Dennis St. Clair had been employed by her for about four months and was authorized to accept checks for her; that while on duty March 30, he accepted a check for $63.86 signed by Wade G. Hampton; that she had seen Wade G. Hampton, the appellant, three times and he had never before March 30, cashed a check at her store; that she signed a letter which was directed, registered, and mailed to the appellant asking him to pay said check and the notice was returned marked “Received” ; and that she never agreed to hold said check and never authorized anyone to make such agreement.

Dennis St. Clair testified that on March 30, 1965, he was employed by Era Wright, the owner of Wright’s Liquor Store, and about 7:30 p. m. that day the appellant came in the store and said he had placed-an order by telephone for some liquor, and although St. Clair knew nothing about such an order, when he found some liquor in a package under the counter the appellant said, “Do you have a draft?”; that appellant said he had been talking with Era Wright over at a lounge; that he was a contractor, and he had money in the bank and that the check would be good; that the appellant wrote out the draft except the name of the payee and appellant’s address and signed it in his presence, and for which he gave him six bottles of liquor and $31 in money which belonged to Era Wright. While testifying, St. Clair identified the check that appellant gave him Johnson for St. Clair to hold the check and in the amount of $63.86 which was drawn on the National Bank of Commerce in San Antonio, and when it was introduced in evidence the appellant stated that he had no objection. The check was duly deposited and returned with the notation “Unable to Locate Account,” and the appellant has never paid the check. St. Clair testified that the appellant never told him that he had made arrangements with Mrs. Johnson for St. Clair to hold the check and he would later pay it; that appellant never told him Era Wright had taken checks from him before and held them; and that the appellant never asked him to hold the check, and never gave him any reason to believe that the check was not good. On cross-examination St. Clair testified that the appellant told him that he and Era Wright were old friends, and he never said anything about holding the check for payment ; that Mrs. Johnson, the employee that St. Clair relieved, told him that appellant was coming to pick up some liquor.

The testimony of a bookkeeper in custody of the records of all persons having checking accounts at the National Bank of Commerce, San Antonio, Texas, reveals that the appellant did not have an account in said bank on March 30, 1965, and had not had for several years.

Proof was offered of the prior conviction alleged for enhancement and the appellant. was identified as the person so convicted. While testifying the appellant admitted his previous conviction for the felony offense of giving a check without sufficient funds as alleged for enhancement.

In rebuttal the state offered evidence that the appellant had cashed other checks which were returned unpaid because his account was insufficient to pay them.

Testifying in his own behalf, the appellant stated that on March 30, 1965, he asked Mrs. Johnson at Wright’s Liquor Store by telephone i he could get six bottles of liquor and some money, and give a check which they would hold for two weeks and she asked him to call back in 30 or 40 minutes which he did and she said it would be all right; that about two hours later he went to the liquor store and saw Dennis St. Clair who had relieved Mrs. Johnson, and told him his name and asked St. Clair if he had a package for him, and in a short time St. Clair found a package containing six bottles of liquor with appellant’s name on it; that he got the liquor and $31 in money and gave St. Clair a check to hold, and while testifying identified the check which the state had introduced; that there was no discussion about the check as St. Clair said he was expecting him; and he told St. Clair to let Mrs. Wright know to hold the check, and that she had previously held a check for him; that he did not have an account at the National Bank of Commerce on March 30, 1965, and had not had for several years; that he made it clear to Mrs. Johnson to make sure it was all right with Mrs. Wright, and also told St. Clair to hold the check.

Appellant contends that the indictment is fatally defective on the ground that the check is made payable to Wright’s Liquor Store while the indictment alleges said store as Wright Liquor Store.

The indictment alleged that appellant did with intent to defraud Mrs. Era Wright, sole owner of Wright Liquor Store, give to Dennis L. St. Clair, the agent of Mrs. Era Wright his draft for $63.86. The draft set out in the indictment and introduced in evidence was payable to Wright’s Liquor Store.

The indictment alleges and the evidence shows that Mrs. Era Wright was the sole owner of the store and the injured party. The conviction is for the giving of a worthless check under Art. 567b Vernon’s Ann. P.C. The variance between Wright and Wright’s as presented does not affect the validity of the indictment. Young v. State, 170 Tex.Cr.R. 500, 341 S.W.2d 933.

It is contended that the trial court erred in permitting the state to read to the jury the allegations of a prior conviction alleged in the indictment and to introduce evidence of said prior conviction.

No offer was made to stipulate as to the prior conviction alleged for enhancement. The reading of the indictment and the proof to support the allegation of the prior conviction was not error. Taylor v. State, Tex.Cr.App., 398 S.W.2d 559, and cases cited.

It is not required, as the appellant contends, for the state to furnish him with a copy of the records of his prior conviction before the trial, because the indictment gave him sufficient notice that such proof may be made. McCown v. State, 170 Tex.Cr.R. 142, 338 S.W.2d 732, cert. den. 368 U.S. 856, 82 S.Ct. 96, 7 L.Ed.2d 54.

It is insisted that the trial court erred in admitting evidence of other checks because they showed extraneous offenses.

While testifying, the appellant admitted giving the $63.86 check on March 30, 1965, but said that they had agreed to “hold” it for him, that his intentions were not to “beat the people,” and he still owed the money.

In rebuttal the state offered the other checks and they were admitted in evidence to show intent, system and design. To their admission the appellant objected on the ground that no charges had been filed on the checks, there had been no convictions based on them, that such evidence violates the Sixth Amendment, to the U. S. Constitution, and such evidence is highly prejudicial.

In the charge to the jury, the court limited the evidence of other check transactions than the offenses alleged in the indictment, for the purpose of showing if it did, the intent of the appellant at the time of the commission of the alleged primary offense.

Where a prosecution is based on the giving of an alleged worthless check, evidence of the giving of other worthless checks about the same time was admissible on the issue of intent. 23 Tex.Jur. (2) 306, Sec. 198; Moore v. State, 87 Tex.Cr.R. 77, 219 S.W. 1097; Harris v. State, 169 Tex.Cr.R. 143, 333 S.W.2d 142; O’Brien v. State, Tex.Cr.App., 376 S.W.2d 833.

In rebuttal of appellant’s testimony that the check to the liquor store was a “hold” check, that it was his intention to later pay it but he never did, the evidence of the other checks was admissible on the issue of his intent.

Error is urged because the trial court refused to allow the appellant to call Thomas W. Hampton as a witness, and who would have testified that the appellant at one time had a bank account at the National Bank of Commerce.

The record reflects that the rule as to witnesses had been invoked by the appellant and Thomas W. Hampton had been present during the entire trial and had heard all the testimony of every witness. There is no showing as to when said account existed according to Thomas W. Hampton. The appellant and the bookkeeper of the National Bank of Commerce both testified that the appellant had no account in said bank on March 30, 1965, and had not had for several years. The trial court did not abuse its discretion in refusing to allow said witness to testify.

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

Opinion approved by the Court.


source: Caselaw Access Project

author: McDONALD, Presiding Judge. MORRISON, Judge

license: Public Domain

text:
    Frank HALL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39115.
    Court of Criminal Appeals of Texas.
    April 20, 1966.
    Rehearing Denied May 25, 1966.

      Gerald Weatherly (appointed on appeal only), Charles R. Wheeler, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Truman Power, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is assault with intent to murder; the punishment, 14 years in the Texas Department of Corrections.

The evidence shows that all the witnesses to the assault had spent much of the evening in the No-Peep-Inn, and that the complaining witness, Woods, had talked and drunk beer with Betty McKee, common-law wife of appellant. At about 12:30 a. m. appellant his wife, and another girl left the tavern, and Woods and another man left about 15 or 20 minutes later. The two parties met a short distance from the No-Peep-Inn.

According to Woods, he attempted to apologize to appellant for his earlier familiarity with Betty McKee, telling appellant that “I did not know that that was your wife.” Words were exchanged, then appellant said, “Betty, give me my pistol.” When the girl refused, appellant took the pistol from her brassiere or purse. Both girls and Woods pleaded with appellant not to shoot Woods, and one of the girls attempted to disarm appellant, but as Woods backed away, appellant fired two shots at him. Woods, wounded, fell to the ground. He arose, and as he attempted to flee he heard two or three other shots, one of which struck him in the leg, after which he again fell to the ground and lost consciousness.

Witness Retha Gardner’s testimony was substantially similar to that of Woods. She stated that appellant continued to fire at Woods until he was out of sight, and that about six shots were fired during the transaction.

Testimony of the attending physician indicated that Woods suffered one wound in the left thigh and one in the head, and that these wounds were of the nature that bullets might produce.

Appellant testified that Woods was accompanied by several other persons and that he (appellant) was afraid for his safety and for the safety of his wife. He testified that Woods approached him with a pocket knife and that he fired at Woods only to stop him and did not intend to kill him. According to appellant, he fired only two shots, aiming the first one into the ground, then, when Woods failed to stop, firing the second time at Woods.

Other than testimony that Woods had his hand in his pocket during much of the transaction there was little to support appellant’s theory of self-defense, and the jury chose not to believe it. The evidence is sufficient to sustain the conviction.

Appellant objected to the court’s charge because it did not instruct the jury that appellant, in order to be found guilty of assault with intent to murder, must have had the intent to kill at the time the shots were fired at Woods. Appellant submitted a requested charge to the effect that unless the jury found that appellant had the specific intent to kill “the deceased,” then they could not convict him of assault with intent to murder, and he must be acquitted. This requested instruction was refused by the trial court.

On appeal, appellant concedes that “The Trial Court, merely as a part of it— general charge, did charge, incidentally, along with the several elements of the alleged offense, that, to convict, the jury must find beyond reasonable doubt the various elements of the alleged offense, including ‘the intent to kill the said Calvin Woods.’ ” It is appellant’s contention, however, that he was entitled to a separate, distinct charge, affirmatively submitted, on the element of intent to kill.

Appellant cites 4 Branch’s Ann.P.C. (2nd ed.) 187, Sec. 1846, where the rule is stated that “If defendant testified that he did not intend to kill he is entitled to an affirmative submission of his theory.” We think the contention here is similar to that urged in Royal v. State, 154 Tex.Cr.R. 567, 228 S.W.2d 162, rehearing denied 229 S.W.2d 808. There, the offense was assault with intent to murder, and an affirmative charge was requested on intent to kill, which requested instruction was refused by the trial court. This Court affirmed the conviction, stating:

“The only evidence in the case to justify the foregoing charge is the quoted testimony of appellant himself. This is not an affirmative defense, but only a negative statement. It is sometimes very difficult to distinguish, under the holdings of our court, the difference between a negative defense and an affirmative defense requiring an affirmative charge. In the instant case, appellant testified to nothing which if found to be true would justify his acts if the jury should find he intended to kill. He merely denied the allegation of intention to kill. There is no requirement that this defense be affirmatively submitted.” 228 S.W.2d 162, 163. See also, Fields v. State, 171 Tex.Cr.R. 636, 352 S.W.2d 729; Tapley v. State, 158 Tex.Cr.R. 495, 256 S.W.2d 583.

In the case at bar, the only affirmative defense raised by the evidence was appellant’s theory of self-defense, upon which the jury was properly charged, and no affirmative submission of the issue of intent to kill was required. In reaching this conclusion, we have reviewed, among other cases, the following: Melton v. State, Tex.Cr.App., 367 S.W.2d 678; Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679; Trotter v. State, 170 Tex.Cr.R. 495, 341 S.W.2d 923; Mixon v. State, 168 Tex.Cr.R. 613, 330 S.W.2d 438; Brown v. State, 155 Tex.Cr.R. 233, 233 S.W.2d 578; Chandler v. State, 155 Tex.Cr.R. 41, 229 S.W.2d 71; Crowley v. State, 146 Tex.Cr.R. 269, 174 S.W.2d 321; Rodriguez v. State, 146 Tex. Cr.R. 206, 172 S.W.2d 502; Barnes v. State, 145 Tex.Cr.R. 179, 167 S.W.2d 197; Johnson v. State, 144 Tex.Cr.R. 493, 164 S.W.2d 675; Buchanan v. State, 127 Tex.Cr.R. 100, 74 S.W.2d 1022; Irlbeck v. State, 118 Tex.Cr.R. 5, 40 S.W.2d 124; Eubank v. State, 115 Tex.Cr.R. 112, 28 S.W.2d 808, and Carr v. State, 48 Tex.Cr.R. 287, 87 S.W. 346, as well as the cases cited by appellant, discussed more fully below. It becomes clear that an accused is entitled to an affirmative instruction on any affirmative defense raised by the evidence. In addition, where there is evidence that the assault was made with no intention to kill, an accused is entitled to an instruction on the lesser-included offenses of aggravated assault and simple assault and, along with such an instruction, an affirmative submission of the issue of intent to kill. See the charge in Willson’s Texas Criminal Forms Annotated (7th Ed.), Section 3472. We do not find that a simple denial of that element of the offense entitles an accused to an affirmative submission of the issue of intent to kill, absent a charge on the lesser included offense.

Appellant relies upon Watts v. State, 151 Tex.Cr.R. 349, 207 S.W.2d 94; Minor v. State, 108 Tex.Cr.R. 413, 1 S.W.2d 315; and Scott v. State, 60 Tex.Cr.R. 318, 131 S.W. 1072. These cases are not contrary to the principles stated above. In Scott, the conviction was reversed because the trial court refused to give the requested charge on intent to kill even though the charge contained an instruction on the lesser-included offense of aggravated assault. Minor was reversed because the court’s charge was given in. such a way that even though the jury found that appellant committed the assault with no intent to kill, they could still find him guilty of assault with intent to murder. Although it is not clearly evident from the opinion, a review of the record in Watts reveals that that case was reversed because of the trial court’s failure to charge on intent to kill and aggravated assault as requested by the defendant in that case.

In this case, it was the burden of the state to prove beyond a reasonable doubt that the assault was committed with the intent to kill, and the court’s charge required the jury to so find. The issue of whether or not such intent was present was raised by appellant’s testimony, and an instruction on the lesser-included offense of aggravated assault should have been given, but no such charge was requested and there was no objection to the charge on that ground. We find no error in the trial court’s refusal to give appellant’s requested charge on intent to kill.

The court’s charge on provoking the difficulty, which was given in conjunction with the instructions on self-defense, was objected to by appellant, who contends that the issue of provoking the difficulty is not raised by the evidence.

There was evidence that the complaining witness was quite friendly with appellant’s wife. There is evidence that, when the two parties met later about two blocks from the tavern, appellant was the instigator of a “big argument” which led to the shooting — he spoke the first words, asking Woods what he was doing with his (appellant’s) wife. There is evidence that appellant demanded his pistol, and also evidence that Woods thereafter stuck his hand in his pocket, impliedly for the purpose of arming himself. There is evidence that Woods advanced upon appellant with a knife, and that appellant thereupon shot him.

One conclusion to be drawn from this evidence is that appellant, incensed by Woods’ familiarity with appellant’s common-law wife, took the opportunity presented by their subsequent meeting to provoke an argument with Woods, and that his words and acts were calculated to excite Woods to- the point that he would attack appellant, thereby providing appellant with justification for shooting Woods in self-defense. Such circumstances call for a charge upon provoking the difficulty. Norwood v. State, 135 Tex.Cr.R. 406, 120 S.W.2d 806. A charge on this issue has been approved in cases where the supporting facts were much weaker. Ervin v. State, Tex.Cr.App., 367 S.W.2d 680; Muckleroy v. State, 165 Tex.Cr.R. 629, 310 S.W.2d 315; Crowley v. State, 117 Tex.Cr.R. 372, 35 S.W.2d 437.

In response to a motion by the state, the trial court instructed appellant not to allude to the fact that the complaining witness Woods was, at the time of the trial, under indictment for theft and confined in the county jail. Appellant argues that this information was admissible in evidence because it appeared that the witness had changed his testimony since being arrested, the intimation being that Woods’ testimony was biased in favor of the state because of his anticipation of gaining a more favorable disposition of the charge pending against him. Appellant was allowed to impeach the witness by cross-examining him as to his prior inconsistent statement, and we find no substantial variation between Woods’ testimony at the trial and his statements made prior to his arrest the day before the trial began. We also note that appellant was allowed to ask Woods this question: “During the time you and Frank Hall, Jr., were together this morning, Mr. Woods, did you make the- following statement to Mr. Hall ? ‘That the reason you had changed your story was because if you did so, they would throw out the old case against you ?’ ” The answer was, “No, sir, I did not.” It appears that appellant was allowed every opportunity to impeach the witness except by showing that he was charged by indictment with an offense for which he had not been finally convicted-. To have allowed impeachment on this ground would have violated Art. 732a, Vernon’s Ann.C.C.P., now Article 38.29, Code of Criminal Procedure, 1965, which forbids impeachment by showing that there is an unresolved charge pending against a witness. We find no reversible error in the action of the trial court.

The judgment is affirmed.

MORRISON, Judge

(dissenting).

I cannot agree that the Court was authorized under the facts before us here to limit appellant’s right of self defense by charging on provoking the difficulty. The testimony of State’s witness Retha Gardner was that she left her establishment and that appellant and Betty McKee offered to accompany her to a grocery store and that thereafter appellant and Betty agreed to go to Baby’s Place on Crawford Street and were in the act of so doing when Calvin Woods and his friend came toward the three of them.

Judge Hawkins in a scholarly opinion in Mason v. State, 88 Tex.Cr.R. 642, 228 S.W. 952, set forth the elements which should be present in order to authorize the giving of a charge on provoking the difficulty. I find none of them present in the case at bar and therefore conclude that the court erred when he instructed the jury that appellant would lose his right of self defense if they found that he provoked the difficulty with the injured party.

I respectfully dissent.


author: DICE, Commissioner.

text:
    Joe Moody EVANS, Appellant, v. The STATE of Texas, Appellee.
    No. 39410.
    Court of Criminal Appeals of Texas.
    March 23, 1966.
    Rehearing Denied May 25, 1966.

      Robert H. Rice, San Antonio, Arnold W. Franklin, Jourdanton, for appellant.
    J. Taylor Brite, Dist. Atty., Jourdanton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was charged by indictment with the subsequent offense of drunk driving, a felony. Upon the trial, the court withdrew from the jury’s consideration that part of the indictment alleging the prior conviction and submitted only the issue of appellant’s guilt of the misdemeanor offense alleged.

This is an appeal from a judgment entered by the court upon the jury’s verdict finding appellant guilty of the misdemeanor offense of drunk driving and assessing his punishment at thirty days in jail and a fine of $250.

It was undisputed that appellant was stopped and arrested at 9:45 p. m. by highway patrolman Grady Langford while driving his automobile upon state highway #346 some five miles north of Poteet in Atascosa County. Patrolman Langford testified that before stopping appellant he observed the automobile which he was driving cross over the center line several times and continuously weave on the highway. He stated that after he stopped appellant he could smell an alcoholic odor on his breath; that appellant said he had been drinking beer; that he talked with a thick tongue and staggered when he walked. The officer expressed the opinion that at such time appellant was intoxicated.

Justice of the peace, W. L. Cook, and other witnesses who observed appellant after his arrest and before he was placed in jail expressed their opinion that he was intoxicated.

Appellant did not testify but called witnesses who testified that his reputation for being a peaceable and law-abiding citizen was good.

Witnesses also testified that on the day in question appellant had been in Goliad working with some race horses, that he left Goliad around 5 p. m. and at such time he was sober.

The witness George Williams testified that before leaving Goliad, appellant had consumed only two or possibly three bottles of beer; that after the races they left Goliad in separate vehicles; that appellant drove his car behind and when it started weaving the witness stopped and asked him if he was sleepy. Appellant stated that he was, and got in the witness’s pickup with another driver, and the witness drove appellant’s automobile to Poteet; that When they arrived in Poteet they ate at a cafe around 9 p. m. and then went to a dance, where they had another beer; that around 9:30 appellant left the dance and at such time he was not intoxicated.

The jury by their verdict resolved the disputed issue of intoxication against the appellant, and we find the evidence sufficient to sustain the judgment of conviction.

We overrule appellant’s contention that the court should have dismissed the cause for want of jurisdiction when appellant’s objection to the proof offered by the state of the alleged prior misdemeanor conviction for drunk driving was sustained.

The misdemeanor offense of drunk driving was an offense included within the allegations of the indictment and a constituent element of the felony offense charged. Under the provisions of Art. 694, C.C.P., in effect at the time of the trial, a conviction for the lower included offense was authorized and the court was not without jurisdiction. McKenzie v. State, 159 Tex.Cr.R. 346, 263 S.W.2d 562.

The reading of that portion of the indictment alleging the prior misdemeanor conviction and the state’s attempt to make proof thereof before the jury does not present reversible error. ■ There is no showing of any bad faith on the part of the state, and the jury was instructed that the allegation in the indictment charging the prior conviction had been withdrawn and was not to be considered for any purpose.

Appellant’s remaining contentions are that the court erred in permitting the state to impeach the witness George Williams because such impeachment testimony was hearsay, not under oath, and highly prejudicial.

The record reflects that on cross-examination the witness was asked if, when the highway patrolman called him outside at the dance hall and told him he had arrested his friend, he did not say:

■“ T know what for, DWI, I knew it, we tried to get him to stay here tonight, we were afraid for him but he wouldn’t listen, he had his head set.’ ”

The witness replied that he did not remember, that he might have said it but he did not think he did. On further cross-examination he also stated that he did not think he made a statement in the presence of Officers Langford and McDonald that appellant had been drinking all day. Thereafter, Patrolman Langford was recalled and testified that the witness did make the two statements. Officer Jim McDonald was also called and testified that the witness made the first statement attributed to him or words to that effect, and also made the statement that appellant had been- drinking all day.

It appears that this was proper impeachment of the witness’s testimony by use of prior inconsistent statements, and no error is presented. See: McCormick and Ray, Texas Law of Evidence, 2d Ed., page 543, Sec. 695, and cases cited. See, also: Hutson v. State, 296 S.W.2d 245.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Gordon Elmore NOBLE, Appellant, v. The STATE of Texas, Appellee.
    No. 39495.
    Court of Criminal Appeals of Texas.
    April 6, 1966.
    Rehearing Denied May 25, 1966.

      Brown, Shuman & Harding, by Clifford Brown, Lubbock, 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 $150.00.

Appellant’s neighbor Garth testified that on the evening in question he observed appellant stumble out of his house, secure the assistance of another neighbor in getting an automobile started, and drive away, whereupon Garth called the police.

Officer Hatfield testified that in response to a call he brought the automobile which appellant was driving to a halt and observed that appellant was unsteady on his feet, smelled strongly of alcoholic beverage and spoke in a blurred manner. The officer expressed the opinion that appellant was intoxicated.

Sheriff Clements and his son, who was also a peace officer, arrived upon the scene of the arrest and both testified that from the manner of appellant’s walk, the smell on his breath, and his manner of speaking, they were of the opinion that he was intoxicated.

Appellant, testifying in his own behalf, stated that he had drunk one-half of a bottle of beer shortly before he was arrested, but denied that he was intoxicated. His wife and his neighbor who had assisted him in starting the automobile testified that appellant was not intoxicated.

The jury resolved the conflict in the testimony against the appellant, and we find the evidence sufficient to sustain the conviction.

By brief and in argument it is contended that fundamental error exists in the charge and that reversible error is reflected by certain unresponsive answers given by the officers. Reliance is had upon the holding of this Court in Sparks v. State, Tex.Cr.App., 366 S.W.2d 591, and Tomlinson v. State, 163 Tex.Cr.R. 44, 289 S.W.2d 267. In Sparks there was an objection to the court’s charge. In the case at bar there was none. In Tomlinson there were objections to the testimony which were overruled. In the case at bar the jury was instructed not to consider the unresponsive answers. We do not agree that fundamental error is presented by the charge or that reversible error is reflected by the unresponsive answers.

Finding no reversible error, the judgment is affirmed.


author: WOODLEY, Judge. MORRISON, Judge

text:
    Billy Joe HELMS, Appellant, v. The STATE of Texas, Appellee.
    No. 39453.
    Court of Criminal Appeals of Texas.
    March 23, 1966.
    Motion to Reinstate Appeal Denied May 25, 1966.

      Charles E. Benson, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., William M. LauBach, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the violation of Art. 489c Vernon’s Ann.P.C., which makes it unlawful for any person who has been convicted of burglary or robbery, or of a felony involving an act of violence with a firearm and has served a term- in the penitentiary for such conviction, to have in his possession any pistol, revolver or any other firearm capable of being concealed upon the person.

Tried upon a plea of not guilty, appellant was found guilty and his punishment was assessed at 3 years in the penitentiary.

Notice of appeal was given to this Court and entered of record as a part of the sentence pronounced on November 2, 1965.

Though unable to give bond and without means of employing counsel, according to his affidavit of February 10, 1965, and in jail wholly destitute and unable to pay for a statement of facts, according to his affidavit of December 18, 1965, the transcript reveals that appellant and his sureties entered into an appeal bond in the sum of $2000 which was taken and approved by a deputy sheriff on January 11, 1966.

The bail bond upon which appellant was released from jail was not approved by the trial judge as required by Art. 818 C.C.P. as well as by the present statute, Art. 44.04 C.C.P. 1965.

Further, the term of court at which notice of appeal was given had not expired when the bail bond was taken and approved, hence there was no compliance with the statute in effect at the time sentence was pronounced and notice of appeal was given. (Art. 816 C.C.P.)

Also, the appeal bond is not in the form required by Art. 817 C.C.P.

We need not pass upon the effect of the elimination of recognizances in the 1965 Code because the appeal bond was not a compliance with either the 1965 or the 1925 Code of Criminal Procedure.

Appellant having been released from jail without a sufficient recognizance or an appeal bond approved by the trial judge, we are without jurisdiction to enter any order other than to dismiss the appeal. Salter v. State, 159 Tex.Cr.R. 482, 264 S.W.2d 719; Gordon v. State, Tex.Cr.App., 268 S.W.2d 676.

The appeal is dismissed.

MORRISON, Judge

(concurring).

I concur with the majority opinion, hut wish the record to reflect that appellant was represented at his trial and in this Court on appeal and that a Statement of Facts has been forwarded to this Court.

I concur in the dismissal of this appeal.


author: BELCHER, Commissioner.

text:
    Bobby James SHIELDS, Appellant, v. The STATE of Texas, Appellee.
    No. 39516.
    Court of Criminal Appeals of Texas.
    April 13, 1966.
    Rehearing Denied May 25, 1966.
    Charles H. Winston, Odessa, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for assault with intent to rape alleged to have occurred on or about May 25, 1965; the punishment was assessed at twenty-eight years.

The mother testified that the prosecutrix was ten years of age on July 28, 1965, and that the prosecutrix had lived with her until she noticed that the prosecutrix had a discharge; that she took her to a doctor and in June took her to the Health Clinic; and that she later filed charges against the appellant; and the prosecutrix during this time went to live with her father.

The prosecutrix, age ten, testified that the appellant had lived with her mother; that he was at their house about the time school was out in 1965, and while their mother was away he told her and her brother to go outside and they did, and then he called her back into the house; that appellant told her to lie down on the bed which she did, then he told her to pull down her panties and when she refused the appellant pushed her down on the bed, pulled down her panties and got on top of her, “Then he got his thing out,” * * * “out of his breeches,” and “he started doing something bad.” She further testified as follows:

“Q You told the jury that he pulled his thing out of his breeches, didn’t you, R-?
“A Yes, sir.
“Q What did he do with it?
“A He stuck it in me.
“Q Where did he stick it in you?
“A In between my legs.
“Q How do you know he stuck it between your legs ?
“A Because I saw it.
“Q You saw it?
“A Yes, sir.
“Q Where did he put it between your legs?
“A In my stuff.
“Q Could you see his thing?
“A Yes, sir.
“Q Did he have his pants down?
“A He had them unzipped.
“Q He had them unzipped?
“A Yes, sir.
“Q What did he do when he got off of you?
“A He told me if I told anybody we would both get in trouble.
* * * ⅜ * ⅜
“Q Well, did you tell your mamma about it when she came home?
“A No, sir.
"Q Why didn’t you tell your mamma about it when she came home?
“A Because I was scared.
“Q Who were you scared of?
“A My mother.
“Q Why were you afraid of your mother ?
“A Because I thought she was going to whip me.
⅜ ⅜ ⅜ ⅜ ¾⅞
“Q You told somebody about it later on, didn’t you, Honey ?
“A Yes, sir.
“Q Who did you tell about it ?
“A My aunt.
“Q Who is your aunt?
“A Aunt I-.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“Q When Bobby James (appellant) did this to you was that before your birthday ?
“A Yes, sir.
“Q Was it about the time school was out?
“A Yes, sir.”

The aunt of the prosecutrix testified that she noticed that the prosecutrix had a discharge ; that in the latter part of June, 1965, she took her to the Health Department for two shots; and that she was given five shots.

The appellant did not testify.

It was stipulated that the appellant was a male person, twenty-one years of age or over. It was further stipulated that the appellant was in jail from June 26, 1965 to July 9, 1965.

It was shown by the records of the Health Department that the prosecutrix on June 23, 1965, had and was treated for gonorrhea.

Testimony was introduced by the Jailer and appellant’s mother that they never knew of appellant having or being treated for gonorrhea.

It is insisted that the trial court erred in holding that the prosecutrix was competent to testify as a witness.

The examination of the prosecutrix shown in the record reveals that she was ten years of age, that she was in the fourth grade in school; that to swear to tell the truth meant to tell nothing but the truth; that her mother had punished her because she did not mind; and that she understood that she would be punished if she did not tell the truth.

From all the facts and circumstances as shown by the record, it is concluded that the trial court did not abuse its discretion in permitting her to testify. Hines v. State, 160 Tex.Cr.R. 284, 268 S.W.2d 459; Cochran v. State, 162 Tex.Cr.R. 253, 283 S.W.2d 947.

The appellant contends that the trial court erred in permitting the mother of the prosecutrix to testify on the ground that she was the common law wife of the appellant.

The mother, age 24, testified that she had seven children, and had always used her maiden name; that she had lived with three different men and had children with six different fathers; that she lived with appellant about one and one-half years; that they never intended to get married at first but after about six months they talked about marrying, and then had an argument and never did; that she never considered herself his wife, although he listed her in his insurance policy and had the utility bills in his name; that no marriage ceremony was performed and no divorce had between them, and neither ever held the other out as man and wife, and she never considered herself married to the appellant, and had lived with another man for several months after she had lived with the appellant; that while working during this time she received all pay checks in her maiden name.

No error is shown by the trial court in permitting the mother of the prosecutrix to testify.

In submitting the case, the court charged the jury that if they had a reasonable doubt of whether the appellant had the specific intent to have carnal knowledge of the prosecutrix to find him not guilty of assault with intent to rape.

The trial court also submitted the law applicable to aggravated assault to the jury.

The evidence is sufficient to warrant the finding that the appellant had the specific intent to have carnal knowledge of the prosecutrix.

The judgment is affirmed.

Opinion approved by the court.


author: McDONALD, Presiding Judge.

text:
    Constance GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 39465.
    Court of Criminal Appeals of Texas.
    May 11, 1966.

      No attorney of record on appeal.
    Carol S. Vance, Dist. Atty., Edward B. McDonough, Jr., and Sidney Farmer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is possession of a narcotic drug, to-wit: heroin, second offender; the punishment, 15 years in the Texas Department of Corrections.

Shortly before 5:00 p. m. on June 11, 1965, Houston Police Officers Farrar and McManus received a telephone call from an informant and were advised that appellant would be at a designated address and would have heroin in her possession. This informer had provided these officers with information on several prior occasions, and his information had proven to be accurate and reliable on these occasions. The officers went immediately to that address, and about two minutes later appellant, who at least one of the officers knew on sight, arrived in a taxi and was promptly arrested and taken to the police station, which was located across the street from the scene of the arrest. There, appellant was searched by a policewoman, and three capsules were found on her person. The policewoman turned the capsules over to the arresting officers who placed them in a locked evidence box. Only about 20 minutes had elapsed from the time the officers received the information until the evidence was deposited in the evidence box.

Chemical analysis of the contents of the three capsules revealed that they contained 58% heroin.

The evidence is sufficient to sustain the conviction.

We overrule appellant’s contention that the heroin was inadmissible in evidence because it was the fruit of an illegal search incident to an unlawful arrest. There was obviously insufficient time in which to obtain a warrant for the arrest and search, and the information received by the officers from their informant provided probable cause for a belief that a felony was being committed in their presence. Jones v. State, Tex.Cr.App., 264 S.W.2d 722; see also Clifton v. State, Tex.Cr.App., 399 S.W.2d 353.

There are no formal bills of exception, and appellant’s remaining informal bills present no reversible error.

The judgment is affirmed.


text:
    Walter WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 39187.
    Court of Criminal Appeals of Texas.
    May 11, 1966.

      Joe E. Turner, Houston (by Court Appointment on appeal only), for appellant.
    Carol S. Vance, Dist. Atty., Edward B. McDonough, Jr. and Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery with a prior conviction for an offense of like character alleged for enhancement. The court assessed the punishment at life under Art. 62, Vernon’s Ann.P.C.

Shortly before 5 a. m. August 20, 1962, Sidney Chenier, the alleged assaulted party, left his house located at the rear of two houses going to work. Chenier testified that as he walked between the two houses toward the street, he was struck in the head from the rear, and on being struck again in the head he fell backwards on his back on the ground where he was struck about three more times, and then his assailant stooped down and began searching his pockets; that as the assailant stooped over him during the search he (Chenier) looked directly into his face and recognized him as the person he had previously seen several times on the street; and he identified the appellant at the trial as the person who stooped over him and searched his pockets, but he never actually saw him take his billfold containing eight dollars in money which was taken at the time without his consent, and while he was in fear of his life and serious bodily injury; that at this time the appellant left •the scene and he (Chenier) returned to his house. The testimony reveals that Chenier suffered a one-inch cut in the top of the back of the head, a one-inch gash above the left ear, a gash under the left eye, the left side of his face was swollen, and his head was covered with blood. On August 22, 1962, two days after he was assaulted and robbed, Chenier identified the appellant in a five-man line-up at the police station as the man who searched his pockets as he lay on the ground on August 20, 1962.

Raphael Jackson testified that he lived in one of the two houses between which the appellant usually passed in going to the street from his house; that when he was awakened about 4:30 a. m. August 20, 1962, he saw two men fighting on the ground between the houses; that he notified the officers and showed them the scene of the fight on their arrival.

Officer Stilley testified that he arrived at the scene at 5:15 a. m. August 20, 1962, where he saw blood on the ground between the houses, and saw Chenier at his house nearby with much blood and gashes on his head.

Record evidence was offered to prove the prior conviction of theft from the person as alleged. Kanaziz v. State, Tex.Civ.App., 382 S.W.2d 485. However, the appellant testified that he was convicted of the offense as alleged for enhancement on March 4, 1960.

Testifying in his own behalf, the appellant stated that he did not know anything about the robbery of Chenier until he was arrested and the officers told him; that he was not at the scene of the robbery and had nothing to do with it; that he had seen Chenier twice but never knew where he lived; that he knew a man who was about his (appellant’s) height, and had the same nickname as his, and was heavyset.

The objections that part of the record evidence was not authenticated at all and other parts were not properly authenticated, present no reversible error in view of appellant’s testimony that he had been convicted as shown by said record.

There are no formal bills of exception; and no objections to the court’s charge and no requested charges were presented.

The informal bills have been considered and they reveal no error.

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

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    Jesus Fazia CASTANEDA, Appellant, v. The STATE of Texas, Appellee.
    No. 39504.
    Court of Criminal Appeals of Texas.
    April 6, 1966.
    Rehearing Denied May 25, 1966.

      William J. Gillespie, Jack McClendon, Lubbock, for appellant.
    Fred E. West, County Atty., Wm. Quinn Brackett and Carson Smith, Asst. Dist. Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is unlawfully transporting beer in a dry area; the punishment, a fine of $400.

Trial was before the court on a plea of not guilty.

The statement of facts reflects the following :

On the 20th day of February, 1965, in Justice of the Peace Precinct No. 1 in Lubbock County, Texas, an admittedly dry area, David L. Carpenter, an Inspector for the Texas Liquor Control Board, was working with Inspector William E. Thomas. They were parked on U. S. Highway 87 conferring with Homer Cleckler, a State Highway Patrolman. The appellant passed them driving his automobile north toward the City of Lubbock. The officers pursued the appellant and he was stopped by the Highway Patrolman. A search was conducted by all three officers and 48 12 oz. cans of beer were found under the hood of the automobile sitting on the motor.

The appellant took the stand in his own behalf and testified that he was taking the beer to his home for his own use and that the beer was under the hood because he was afraid of the officers, one of whom had stopped him previously. The trial court, sitting without a jury, resolved the issue against the appellant and returned a verdict of guilty.

Appellant’s first two propositions present the contention that the evidence as to the beer found under the hood of his car was obtained through a search and seizure incident to an unlawful arrest and the admission of such evidence deprived him of the rights guaranteed by the 4th and 14th Amendments to the Constitution of the United States.

Inspector Carpenter testified that he had received information from an informant from whom he had previously received information that he found to be true and accurate that appellant “was bringing in a load of beer to Eva Martinez” and that while they were parked out on the highway talking to Patrolman Cleckler, appellant came by and he told Cleckler: “that’s who I wanted and he went and stopped him for us.”

Patrolman Cleckler testified that he stopped the car upon instructions from Inspector Carpenter and asked appellant for his driver’s license.

We overrule the contention that the search was illegal. Risby v. State, 170 Tex.Cr.R. 417, 341 S.W.2d 445, cited by the state, sustained such holding.

Our prior opinions cited by the state also sustain its contention that appellant is in no position to complain of the admission of the evidence obtained as the result of the search of appellant’s car, he having testified that he hid the beer under the hood of his car and that the officers found it there after he was stopped. Hudson v. State, 170 Tex.Cr.R. 400, 341 S.W.2d 448; Spencer v. State, 154 Tex.Cr.R. 106, 225 S.W.2d 174; Jenkins v. State, Tex.Cr.App., 367 S.W.2d 343; Daniels v. State, Tex.Cr.App., 387 S.W.2d 886; 5 Tex.Jur. 2d, Sec. 446, pages 707, 708.

The remaining proposition presented is the contention that the trial court erred in convicting because there was no evidence offered by the state to controvert appellant’s testimony that the beer was being transported by him to his own home for his own use.

Appellant’s testimony is deemed sufficient to raise the issue of whether the transporting of beer was lawful under the exception found in Art. 666-23a (1) Vernon’s Ann.P.-C. which provides that any person who purchases alcoholic beverages for his own consumption may transport same from a place where the sale thereof is legal to a place where the possession thereof is legal. See Middlebrook v. State, Tex.Cr.App., 387 S.W.2d 51.

The trial judge was not bound to accept appellant’s testimony as to his purpose and intent as true. Sandoval v. State, 172 Tex.Cr.R. 369, 357 S.W.2d 388; Davis v. State, 159 Tex.Cr.R. 645, 266 S.W.2d 123; French v. State, 126 Tex.Cr.R. 246, 70 S.W.2d 1002; Hutspeth v. State, 158 Tex.Cr.R. 188, 254 S.W.2d 130; Allen v. State, 158 Tex.Cr.R. 666, 259 S.W.2d 225; Linsey v. State, 161, Tex.Cr.R. 599, 279 S.W.2d 862.

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

The judgment is affirmed.


text:
    Willard W. BAUGH, Appellant, v. The STATE of Texas, Appellee.
    No. 38719.
    Court of Criminal Appeals of Texas.
    May 11, 1966.
    Stone & Stone, by Wm. Emerson Stone, Jr., Jacksonville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is rape; the punishment, 20 years.

Though lengthy, this record presents very few conflicts as to the facts. Appellant and prosecutrix were married in 1960, when he was 21 and she was 18. Prosecutrix took her son to her mother’s house in May of 1964, and in June she filed a divorce suit against appellant. Appellant made several efforts to dissuade her, but, in company with her attorney, who had conferred with appellant’s attorney concerning custody, child support and visitation rights, she appeared before the Honorable Jack Pierce, Judge of the 145th Judicial District Court, and a hearing was had on prosecutrix’ petition. At the conclusion thereof, Judge Pierce made the following entry on the court’s docket: “8-21-64, Came the plaintiff and was sworn and testified; no community property. Court granted plaintiff judgment of divorce with custody of child with support as per decree on file herein. Jack Pierce, Judge Presiding.”

On the evening of the same day, appellant appeared at prosecutrix’ mother’s home where he brandished a pistol and forcefully caused prosecutrix to accompany him to a deserted country road where he, having placed her in fear, had an act of intercourse with her. According to her testimony, this and the subsequent act which occurred that night in a nearby abandoned house were committed against her will and because she was afraid of being killed if she did not submit.

Prosecutrix was returned to her mother’s home sometime after midnight by appellant’s brother-in-law, who was able to locate the pair in the abandoned house before the officers who were searching for them could do so.

We quote from appellant’s brief: “The sole question presented on this appeal is whether or not on August 21, 1964, the date of the alleged offense, Willard W. Baugh and the prosecuting witness Ethelda Baugh were husband and wife. If husband and wife, the conviction is void.”

This appeal is predicated upon the contention that what occurred on the day Judge Pierce heard the divorce suit and announced his ruling is not controlling, but rather that the date of the entry of a judgment which was prepared by prosecutrix’ lawyer some six days thereafter and signed by Judge Pierce on August 27, should determine the marital status of the parties on the night in question. It should be noted that such judgment, which was later signed, begins “this, the 21st day of August 1964.”

The State contends, and we agree, that the following quoted portion of Rule 306a, Texas Rules of Civil Procedure should control in a case of this nature: “ * * * but this rule shall not be construed as determining what constitutes rendition of judgment or order in any other situation or for any other purpose.” We hold that in a case such as this where all the issues to be adjudicated at the time the court announced his decision were agreed upon, such announcement constitutes the rendition of the judgment. Leatherwood v. Holland, Tex.Civ.App., 375 S.W.2d 517; Texas Life Insurance Company v. Texas Building Company, Tex.Civ.App., 307 S.W.2d 149; and 33 Tex.Jur.2d 510, Sec. 20, would appear to support such contention.

We have concluded that Salas v. Salas, Tex.Civ.App., 215 S.W.2d 362, and Boothe v. Durrett, Tex.Civ.App., 343 S.W.2d 553, relied upon by appellant, would not authorize this Court to hold that the divorce in question was not granted on the day the court heard the case and announced his decision.

In Salas v. Salas, supra, the pronouncement by the trial court was couched in such indefinite language as to fail to adjudicate the matters before the court, and it was correctly held that he did not intend such as the rendition of final judgment.

In Boothe v. Durrett, supra, it was held merely that in a case of a variance, a judgment dictated into the record by the appel-lee’s attorneys and containing no recital that the dismissal was with prejudice would control over the docket notation that the dismissal was with prejudice.

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


author: DIXON, Chief Justice. BATEMAN, Justice

text:
    INTERSTATE CIRCUIT, INC., et al., Appellants, v. CITY OF DALLAS, Appellee.
    No. 16773.
    Court of Civil Appeals of Texas. Dallas.
    April 5, 1966.
    Rehearing Denied April 25, 1966.

      Carrington, Johnson & Stephens, Paul Carrington, Dan McElroy, Robert H. Mow, Jr., Tobolowsky, Hartt, Schlinger & Bla-lock, Grover Hartt, Jr., and Edwin Tobo-lowsky, Dallas, for appellants.
    N. Alex Bickley, City Atty., Ted P. Mac-Master, Pat Stacy and Jerry Williamson, Asst. City Attys., Dallas, for appellee.
   DIXON, Chief Justice.

On February 14, 1966 the City of Dallas, appellee, filed suit against Interstate Circuit, Inc., appellant, an exhibitor of commercial motion pictures, seeking temporary and permanent injunctions restraining said appellant (1) from exhibiting the film “Viva Maria” without advertising the film as “not suitable for young persons” and (2) from violating Ordinance No. 11284, as amended, by exhibiting any film contrary to the provisions of the Ordinance.

On February 16, 1966 United Artists Corporation, asserting that it is a distributor of motion pictures and is the exclusive owner of distribution rights of the film “Viva Maria”, intervened in opposition to the City.

On February 18, 1966, following a hearing begun the day before, the court granted the City’s prayer for a temporary injunction. The City had offered to try the case on its merits at the same time, that is, try the whole case on February 18, 1966, including the application for permanent injunction. This offer was declined by appellants.

Ordinance No. 11284 known as the “Motion Picture Classification Ordinance” was passed by the City Council of the City of Dallas on November 22, 1965. It is too long to be copied here in its entirety. A summary of its material provisions will be found in a footnote hereto.

The Ordinance itself has already been the subject of court action. A number of motion picture exhibitors filed suit in the United States District Court for the Northern District of Texas seeking an injunction on the ground that the Ordinance itself is violative of the First and Fourteenth Amendments to the Constitution of the United States. On December 23, 1965 Honorable Sarah T. Hughes, judge of that court, held in effect that, though Section 46A-6 of the Ordinance is unconstitutional, the rest of the Ordinance is not violative of the Constitution. Interstate Circuit, Inc. v. City of Dallas, D.C., 249 F.Supp. 19. Appended to the opinion is Appendix A — a reproduction in full of the Ordinance. The above judgment is now pending on appeal before the United States Court of Appeals.

In the appeal now before us Section 46A-6 is not involved. No violation of that section is alleged. The City has not undertaken to suspend appellants* license and doe not seek to do so. Therefore, we shall not pass on the constitutionality of Section 46A-6, which under the terms of Section 46A-11 may be treated as severable from the rest of the Ordinance.

The two appellants have filed separate briefs. Interstate Circuit, Inc. in its first six points on appeal, and United Artists Corporation in all of its ten points, assert that the Ordinance and its application in this case are violative of the First and Fourteenth Amendments to the Constitution of the United States and of Article 1, Sections 8 and 19 of the Constitution of the State of Texas, Vernon’s Ann.St. We do not agree with appellants.

Of course Article 1, Sections 8 and 19 of the Constitution of the State of Texas does not override the Constitution of the United States. Therefore, we shall in the main confine our discussion to the latter Constitution and interpretations thereof, especially with reference to civil suits since this suit does not involve a criminal action, as did the case of Malone v. State of Texas, 170 Tex.Cr.R. 231, 339 S.W.2d 666.

This is not a totally suppressive ordinance, or one that would totally deny the exhibition to anyone of the picture “Viva Maria” or any other classified film. It does not in any way prohibit the exhibition of any classified picture to adults. It does not even prohibit the exhibition of the picture to any child under the age of sixteen years if accompanied by parent, guardian, husband or wife. It does not prohibit exhibitors from exhibiting pictures classified “not suitable for young persons”. It does not prohibit distributors from distributing a picture so classified. It is in the nature of a classification ordinance, the purpose of which is to regulate the exhibition of classified pictures to children.

By providing for such regulation the Ordinance does not contravene the freedom of speech provisions of our Constitutions. The Supreme Court of the United States has itself suggested that such regulation is proper. We quote from the opinion in Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793:

“We recognize the legitimate and indeed exigent interest of States and localities throughout the Nation in preventing the dissemination of material deemed harmful to children. But that interest does not justify a total suppression of such material, the effect of which would be to ‘reduce the adult population * * * to reading only what is fit for children.’ Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412, 414. State and local authorities might well consider whether their objectives in this area would be better served by laws aimed specifically at preventing distribution of objectionable material to children, rather than at totally prohibiting its dissemination.” (Emphasis supplied.)

See also Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, and People v. Walton, 70 Cal.App.2d Supp. 862, 161 P.2d 498.

Freedom of speech, mighty bulwark that it is in the preservation of our liberties, is not an absolute right—a truth that is recognized by court decisions. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; and Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403. We do not believe that our forefathers in adopting our constitutional provisions or that subsequent interpreters thereof intended to require of children the same discretion, the same mature judgment, or the same responsibility in sex matters that we do of adults. Freedom of speech does not include the right to teach children that sexual promiscuity is to be approved and accepted as a standard of conduct. And to so hold is not merely to embrace a contemporary local community standard as appellants contend. It involves a contemporary national standard.

This Ordinance avoids constitutional infirmity though it provides for a prior submission of a film under some circumstances. Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403. The process under the terms of the Ordinance takes place under procedural safeguards which require that (1) the burden of proving that the film is not protected rests on the City; (2) the exhibitor is assured by the Ordinance and authoritative judicial construction that within a specified brief period of time the City will either issue a permit or go to court to obtain a regulated showing of the film; (3) any restraint in advance of final adjudication must be for the shortest period of time compatible with sound judicial resolution; and (4) the procedure must assure a prompt final judicial decision. These are the tests laid down by the Supreme Court of the United States in Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 in a total censorship case.

The Texas Rules of Civil Procedure grant powers to courts to make prompt judicial decisions. In the district courts Rule 245(c) provides that actions may be placed on the trial calendar “in such other manner as the courts deem expedient” and Rule 330(b), applicable to Dallas courts, provides that “the court may set any case for trial at any time so as to allow the parties reasonable time for preparation.”

In the appellate courts Rule 410, after listing certain types of cases which shall have precedence in Courts of Civil Appeals then states in Section (f): “Such other cases as the court, by order or rule, may direct.” Rule 497 provides that “Causes may be tried in such order as the justices of the Supreme Court may deem to the best interest and convenience of the parties or their attorneys.”

The case now before us was filed in the trial court February 14, 1966, tried February 18, 1966, submitted to this court March 28, 1966 and decided April 5, 1966. Appellants surely have no real basis to complain that the judicial procedural time table has been inadequate to meet the requirements set out in the Freedman case.

Appellants complain that the Ordinance leaves too much to the judgment and discretion of the Board. Appellants apparently overlook the fact that this case was not tried in the district court under the “substantial evidence rule”, which requires a court to approve an administrative agency’s decision if there is any substantial evidence to support it. This was a “de novo” trial in which the court was free to make and obviously did make its own independent findings regardless of the findings or judgment of the Board.

Appellants say that the Ordinance is invalid because it provides standards for the judgment which are too broad, vague, uncertain and indefinite to permit of enforcement or to give fair notice of the type of films which may be subject to classification. We see no such infirmity in the Ordinance. In Subsection (f) of Section 46A-1 the Ordinance sets definite standards for classification. Absolute precision is not required. What is required and what we think the Ordinance affords is a sufficiently definite warning of the standards which are to guide the Board and the courts in classifying films. As was said in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, at page 1312, 1 L.Ed.2d 1498, at page 1510,

“Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘ * * * The Constitution does not require impossible standards’; all that is required is that the language ‘convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * United States v. Petrillo, 332 U.S. 1, 7, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877, 1883. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ‘ * * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous * * (Emphasis ours.)

Appellants further say the Ordinance is invalid because it involves a contemporary community standard of a local community only, the City of Dallas, and not the State of Texas or the United States. Again we cannot agree with appellants. To regulate to a limited extent the portrayal to children under the age of sixteen years of sexual promiscuity as acceptable is not to apply merely a local community standard. It is to apply a contemporary national standard.

Appellants contend that to support the validity of the Ordinance or any action taken under its terms the City must prove that a film classified “not suitable for young persons” must pass three tests. We quote from the brief of the distributor, appellant United Artists Corporation:

“1. It must deal with sex in a manner appealing to the prurient interest, judged by the average person, applying contemporary community standards, and considering its dominant theme as a whole. Roth v. United States, 344 [354] U.S. 476 [77 S.Ct. 1304] 1 L.Ed.2d 1498 (1957); and, 2. It must be patently offensive — so offensive on its face as to affront community standards of decency. Manual Enterprises, Inc. v. Day, 370 U.S. 478, [82 S.Ct. 1432] 8 L.Ed.2d 639 (1962); and, 3. It must be utterly without redeeming value; hence, the good may not be weighed against the bad. Jacobellis v. [State of] Ohio, 378 U.S. 184 [84 S.Ct. 1676], 12 L.Ed.2d 793 (1964).”

We bow to the pronouncements of the Supreme Court of the United States. But we do not believe that the holdings above set out are applicable here. In all of the cited cases the court was considering enactments which sought to impose total censorship. Their effect would have been to ban completely the sale, distribution or exhibiting of the matter involved either to adults or children. The Ordinance we have before us for consideration in this case does no such thing. As we have already pointed out it does not call for total censorship in any instance. It simply applies limited regulations of the conditions under which certain classified pictures may be exhibited to children under the age of sixteen years.

If we be in error in the above holding we nevertheless hold that the Ordinance and its application in this case do not violate the constitutional provisions. We have read the evidence reproduced in the statement of facts and viewed the film “Viva Maria”. The latter was exhibited for our benefit in the court room. The evidence amply supports the implied findings of the Board and the district court that the film offends in all of the particulars named under the three headings quoted in the foregoing excerpt from appellant’s brief.

If the three tests are to be applied in this case we think test No. 1 should be modified so that in place of the words “judged by the average person” there should be substituted the words “judged by the average young person” — meaning a person under the age of sixteen years. However, we would make the same holding if test No. 1 were not so modified.

In the case of John Cleland’s “Memoirs of a Woman of Pleasure” v. Attorney General of the Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 decided March 21, 1966, the Supreme Court of the United States reversed a judgment of a Massachusetts court banning the above named book. The court said, “A book can not be proscribed unless it is found to be utterly without redeeming social value.” But the court then went on to say:

“It does not necessarily follow from this reversal that a determination that ‘Memoirs’ is obscene * * * would be improper under all circumstances. On the premise, which we have no occasion to assess, that ‘Memoirs’ has the requisite prurient appeal and is patently offensive, but has only a minimum of social value, the circumstances of production, sale, and publicity are relevant in determining whether or not the publication and distribution of the book is constitutionally protected.” (Emphasis supplied.)

We hold that “Viva Maria” has only a minimum of social value, if any at all, as to children under the age of sixteen years. And since it is permitted to be exhibited subject only to limited regulations, it is not constitutionally protected from the terms of the Ordinance which the City seeks to apply or from the terms of the temporary injunction granted by the trial court.

Appellant United Artists Corporation, distributor, asserts that it has the same constitutional rights as the exhibitor, yet it is not mentioned in the Ordinance and was not notified of the hearings. There is no merit to this contention. United Artists Corporation does not claim that it is an exhibitor of this or any other picture. It is a distributor and there is nothing in the Ordinance to prevent distribution of the film. The Ordinance has to do with the exhibition of the film to children, not its distribution. Besides, United Artists Corporation intervened in the lawsuit and was given full opportunity to be heard. It has not been harmed.

We overrule the first six points on appeal of appellant Interstate Circuit, Inc. and all ten points of appellant United Artists Corporation.

In its seventh point appellant Interstate Circuit says that under Article 527 of the Vernon’s Ann. Texas Penal Code the State pre-empted to regulation of motion pictures, so that a municipality may not enter the field. In its eighth to sixteenth points, inclusive, appellant complains of the action of the court in overruling exceptions to appellee’s pleadings. In its seventeenth point appellant objects to the court’s failure to set forth reasons to justify the granting of the temporary injunction. In its eighteenth and nineteenth points appellant alleges that the temporary injunction was not supported by pleadings and the court misapplied the law. We have considered all these additional points and find no merit in them. They are overruled.

Justice Bateman has written a concurring opinion in which he presents his views somewhat in detail. I have read his concurring opinion and agree with his views as stated by him.

The judgment of the trial court is

Affirmed.

WILLIAMS, J., not sitting.

BATEMAN, Justice

(concurring).

I concur fully with everything written by my Brother Dixon in his opinion and would like to enlarge somewhat on several of the decisions contained therein.

By its seventh point of error on appeal the appellant Interstate Circuit, Inc. says the court erred in refusing to hold that Article 527 of the Texas Penal Code preempted the field of regulating motion pictures, thus making invalid such attempted action by the City. The first two sections of Article 527, Penal Code of Texas, as amended in 1961, prohibit the doing of certain things, including the exhibition of obscene motion pictures, but Section 5 provides, in part, as follows:

“The provisions of this Act shall not apply to any motion pictures produced or manufactured as commercial motion pictures which (1) have the seal under the Production Code of the Motion Picture Association of America, Inc.; or (2) legally move in interstate commerce under Federal Law; or (3) are legally imported from foreign countries into the United States and have been passed by a Customs Office of the United States Government at any port of entry.”

The evidence clearly shows that the film in question is what is known as a “commercial motion picture” and that it has moved, and will probably continue to move, in interstate commerce. We think we can safely assume that such movements in interstate commerce will be “legal.” Therefore, this motion picture, being one of a class specifically excepted from the effect of Article 527, is subject to regulation by the City.

Moreover, the City of Dallas, being a home rule city deriving its powers from Article 11, Section 5 of the Texas Constitution, has plenary charter powers which include the power to enact the ordinance here in question, its powers being subject only to the limitation that its charter and ordinances shall contain nothing inconsistent with the Texas and Federal Constitutions or the general laws enacted by the State Legislature. City of Fort Worth v. McDonald, Tex.Civ.App., 293 S.W.2d 256, wr. ref. n. r. e.; Janus Films, Inc. v. City of Fort Worth, Tex.Civ.App., 354 S.W.2d 597, wr. ref. n. r. e. per curiam, 163 Tex. 616, 358 S.W.2d 589. Home rule cities have full authority to do anything the Legislature could have authorized them to do prior to adoption of the Home-Rule Amendment, the result being that it is not necessary to look to the acts of the Legislature for grants of power to such cities, but only for limitations on their powers. Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 286; Yellow Cab Transit Co. v. Tuck, Tex.Civ.App., 115 S.W.2d 455, wr. ref.

Appellants take the position that in the light of certain pronouncements by the Supreme Court the picture “Viva Maria” is entitled to protection under the First and Fourteenth Amendments to the United States Constitution and Article 1, Section 8 of the Texas Constitution unless it can be properly said that it is obscene; and that in determining whether it is obscene three tests must be applied, to wit:

“1. It must deal with sex in a manner appealing to the prurient interest, judged by the average person, applying contemporary community standards, and considering its dominant theme as a whole. Roth v. United States, 344 [354] U.S. 476 [77 S.Ct. 1304], 1 L.Ed.2d 1498 (1957); and,
“2. It must be patently offensive — so offensive on its face as to affront community standards of decency. Manual

Enterprises, Inc. v. Day, 370 U.S. 478 [82 S.Ct. 1432], 8 L.Ed.2d 639 (1962); and,

“3. It must be utterly without redeeming value; hence, the good may not be weighed against the bad. Jacobellis v. [State of] Ohio, 378 U.S. 184 [84 S.Ct. 1676], 12 L.Ed.2d 793 (1964).”

It is my firm opinion that the constitutional guaranties of free speech may not properly be invoked to defeat the worthy purposes of the ordinance in question. The classification of a motion picture as “not suitable for young persons” is not by the terms of the ordinance made to depend on whether the motion picture is obscene, and I do not believe the United States Supreme Court intended, in Near v. State of Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357, 1367, or in any other case, to make such a stringent limitation on the powers of a state or city in this field.

The ordinance under examination, in defining the phrase “not suitable for young persons,” does not employ the words “obscene” or “obscenity.” The portrayal of sexual promiscuity in a motion picture may be accomplished with such finesse, or in such a subtle manner, that many would not consider it obscene; yet, by its very adroitness or subtlety promiscuity would be made to appear to a young person to be highly desirable or praiseworthy and acceptable or commonly accepted. Conveying to young persons the idea that to be able to enjoy the pleasures of sexual gratification without being burdened with any accompanying responsibility or commitment, and with no retributive consequences, or even the slightest remorse, is acceptable behavior according to accepted standards of the American community, would in my opinion have a much more pernicious effect on the morals of the community than mere obscenities. To say that a community is powerless to protect itself and its youth from such damage because of the constitutional safeguards of free speech is to my mind unconscionable and unacceptable.

We are also asked to dissolve the temporary injunction because the order does not contain a recitation of the judge’s reasons for issuing the same, as required by Rule 683, T.R.C.P. It is true that this order merely recites that all parties were represented by attorneys and in person, that they announced ready for trial and that the court, after hearing the testimony and argument of counsel, and after having fully considered the same, together with the viewing in person of the motion picture “Viva Maria”, is of the opinion and finds that the appellee is entitled to a temporary injunction. The order then proceeds to grant the temporary injunction. It is also true that several Texas cases have held that this requirement of Rule 683 is mandatory and that the omission of the reasons for granting the injunction is fatal and requires reversal. Miller v. State, Tex.Civ.App., 305 S.W.2d 663, no wr. hist.; Northcutt v. Waren, Tex.Civ.App., 326 S.W.2d 10, wr. ref. n. r. e.; City of Houston v. Rose, Tex.Civ.App., 361 S.W.2d 477, no wr. hist.

In Miller v. State, supra, the temporary injunction had been granted without notice to the defendant and without a hearing. There was neither pleading nor evidence that irreparable wrong, damage or injury was imminently threatened. The order did not state the reasons for its issuance. For all of these reasons the order was reversed and remanded.

In Northcutt v. Waren, supra, there were also additional substantial grounds for reversal.

In City of Houston v. Rose, supra, although the failure to state the reasons for the injunction seems to have been the only ground on which the order was reversed, it was pointed out in the opinion that in several cases it had been held that the failure to set forth the reasons for granting a temporary injunction would not require a reversal “where the record affirmatively shows that no harm resulted.”

It seems to be well settled by the following authorities that Rule 683 does not require a reversal when the record “affirmatively shows that no harm resulted.” 31 Tex.Jur.2d, Injunctions, § 157, p. 274; O’Daniel v. Libal, Tex.Civ.App., 196 S.W.2d 211, no wr. hist.; Gonzalez v. Rodriguez, Tex.Civ.App., 250 S.W.2d 253, no wr. hist.; Rothermel v. Goodrich, Tex.Civ.App., 292 S.W.2d 882, 884; Payton v. Hurst, etc. Clinic, Tex.Civ.App., 318 S.W.2d 726, wr. ref. n. r. e. See also Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, and Garcia v. Sun Oil Co., Tex.Civ.App., 300 S.W.2d 724, 735, wr. ref. n. r. e.

As pointed out in O’Daniel v. Libal, supra, “The purpose of the rule above referred to is to inform a party just what he is enjoined from doing and the reasons why he is so enjoined.” It was also pointed out in that opinion that the application for temporary injunction was set down for hearing and that the appellant filed his answer, that both parties introduced several witnesses, some twenty witnesses testifying at the hearing, and that “the main and sole inquiry” was whether or not the act sought to be enj oined had or would result in a nuisance; that the appellant was familiar with the prayer of appellee’s petition, had heard the statement of the court when he pronounced the judgment and that there could be “no doubt but what appellant knew what he was enjoined from doing and the reasons why.”

With slight exception, the same may be said of the case at bar. Without further lengthening this opinion by reciting the evidence and the statements of the trial judge at the time he announced his decision in the presence of counsel for all parties, I would simply state that this record does affirmatively show that no harm resulted from the failure of the judge to recite specifically in his order the reasons why he granted the temporary injunction. Certainly, it will not be argued that such omission probably caused the rendition of an improper judgment or probably prevented appellants from making a proper presentation of the case to this court. Rule 434,

Appellants and appellee are each asserting substantive rights under Federal law. Appellants say the film in question is protected under the United States Constitution, while appellee asserts that the exercise of its substantive right to regulate the exhibition of the film is within the bounds of that same Constitution. Yet, we are asked to reverse this case on a purely technical, procedural rule. This we are in effect prohibited from doing by the Supreme Court of the United States in Arnold v. Panhandle & Santa Fe Ry. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889, wherein the court said that “ * * * the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.”

Rule 683, T.R.C.P., under discussion here, is purely procedural and does not involve any substantive rights of the parties. It cannot be invoked to deny the parties, appellants and appellee, of their rights under the Constitution of the United States. For this additional reason the point is overruled.

I am fully persuaded that the temporary injunction was properly granted and that it is our duty to affirm.

       The provisions of the ordinance which are material to this controversy may he summarized as follows:

        Sec. IfiA-l. Definition of Terms:

      (d) A young person is defined as being any person who has not attained his sixteenth birthday.
      (f) The standards to be applied in determining whether films shall be classified as “not suitable for young persons are:
      “(1) Describing or portraying brutality, criminal violence or depravity in such a manner as to be, in the judgment of the Board, likely to incite or encourage crime or delinquency on the part of young persons ; or
      “(2) Describing or portraying nudity beyond the customary limits of candor in the community, or sexual promiscuity or extramarital or abnormal sexual relations in such a manner as to be, in the judgment of the Board, likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interest.
      “A film shall be considered ‘likely to incite or encourage’ crime delinquency or sexual promiscuity on the part of young persons, if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted. A film shall be considered as appealing to ‘prurient interest’ of young persons, if in the judgment of the Board, its calculated or dominant effect on young persons is substantially to arouse sexual desire. In determining whether a film is ‘not suitable for young persons’, the Board shall consider the film as a whole, rather than isolated portions, and shall determine whether its harmful effects outweigh artistic or educational values such film may have for young persons.”

        See. 4.6A-S. Establishment of Board:

      This section provides for the creation of the Dallas Motion Picture Classification Board.

        Bee. 46A-8. Glassification Procedure:

      (a) Before exhibiting a film the exhibitor shall file a proposed classification of the film together with a resume of the plot and other information. If the Board approves the exhibitor’s proposed classification it shall file its approval. If the Board fails either to file an approved classification or to hold a hearing within five days, the exhibitor’s proposed classification shall be considered approved.
      (b) If the Board is not satisfied with the exhibitor’s proposed classification, it may request an exhibition of the film before the Board at the earliest time practicable with due regard to the availability of the film. At the screening before the Board the exhibitor may appear, make such statements and present such evidence as he may desire. The Board shall file its classification within two days after such screening.
      (c) Any initial or subsequent exhibitor may file an application for a change in classification. If the prior classification should be changed to “not suitable for young persons” the exhibitor shall have seven days in which to alter his advertising and audience policy.
      (d) The Board shall notify all exhibitors of its classification order.
      (e) The classification shall be binding on any subsequent exhibitor unless a change in classification is made.

        Bee. 4.6A-4. Offenses:

      (a) It shall he unlawful for an exhibitor (1)to exhibit a film which has not been classified; (2) and (3) to exhibit any film classified “not suitable for young persons” under sixteen years of age unless advertising and display media state that the picture is so classified; (4) and (5) knowingly to sell or give to a young person a ticket to a film classified “unsuitable for young persons”, or knowingly to permit a young person to view such film.
      (d) It shall be a valid defense to any prosecution or other proceeding under the Ordinance that the young person was accompanied by his parent, legal guaidian, husband or wife.

        Bee. 46A-5. Ldcense:

      Every exhibitor holding a general motion picture license shall be entitled to issuance of a license to exhibit films classified “not suitable for young persons.”

        Bee. 46A-S. Revocation or Suspension of License:

      Upon complaint being filed that any exhibitor has repeatedly violated the provisions of the Ordinance or has persistently failed to use reasonable diligence to determine whether those seeking admittance to the exhibition of a classified film, the City Council may after notice and hearing suspend for one year the exhibitor’s license for the showing of classified pictures.

        Bee. 46A-1. Judicial Review:

      (a) Within two days after filing of the classification by the Board, any exhibitor may file a notice of nonacceptance. If the Board desires to contest the exhibitor’s nonacceptance, it shall:
      (1) Make application in court within three days for a temporary and permanent injunction.
      (2) Have application for temporary injunction set for hearing within five days. If the exhibitor waives notice pursuant to rules of procedure and requests a hearing on the merits on the day set for the hearing on the temporary injunction, the Board shall be required to waive its application for temporary injunction and shall join in such request.
      (3) In the event the exhibitor appeals the City shall reply to appellant’s brief within five days.
      (4) Same in substance as Paragraph (3) if application for writ is made to Supreme Court of Texas by exhibitor.
      (5) If trial court denies the Board’s application for injunction and Board appeals, Board shall be required to waive all periods of time allowed it by Texas Rules of Civil Procedure, file motion for new trial only if required and then within two days; shall not amend its motion and shall obtain a hearing within five days. Board shall perfect appeal to Court of Civil Appeals including filing of Transcript, Statement of Pacts and brief within ten days and shall then file a motion requesting the Court of Civil Appeals to advance the submission of the appeal.
      (6) If the Court of Civil Appeals reverses the trial court’s injunction order, or if the court refuses to reverse the order, provisions are made similar to those outlined in Paragraph (5) above for the hearing of and decision by the Supreme Court of Texas.

        Sec. lfiA-10. Exception to State Law:

      Nothing in Ordinance shall be construed to regulate public exhibitions pre-empt-ed by Article 527 of Texas Penal Code.

        Sec. JfGA-11. Severability Clause:

      Should any section of the Ordinance be held invalid such holding shall not render invalid any other section, the various sections, etc. being deemed severable for this purpose.


author: CHADICK, Chief Justice.

text:
    Wilma Cook FARLEY et al., Appellants, v. Willie B. Graves COOK, Successor Temporary Administrator of the Estate of W. T. Cook, Deceased, Appellee.
    No. 7724.
    Court of Civil Appeals of Texas. Texarkana.
    April 12, 1966.

      Bruce Youngblood, Harless, Bailey & Youngblood, Dallas, for appellants.
    Grier H. Raggio, Raggio & Raggio, Dallas, for appellee.
   CHADICK, Chief Justice.

This is a probate matter. An appeal from the Probate Court of Dallas County to a District Court of that County was dismissed in the District Court on motion for summary judgment. The judgment of the district court is in part affirmed and in part reversed and remanded.

W. P. Cook died January 17, 1965. L. V. Fisher, a grandson, was appointed temporary administrator of the estate of this decedent on January 18, 1965. The next day, January 19, 1965, the widow of the deceased, Willie B. Graves Cook, filed a written motion to remove Fisher as temporary administrator and in the same instrument applied for appointment as temporary ad-ministratrix in succession to him. At a hearing January 26, 1965, Fisher was discharged and the widow was appointed. Thereafter by order dated February 26, 1965, the widow was appointed permanent administratrix of the estate of W. T. Cook, deceased, granted letters of administration, etc.

The aforesaid order appointing Willie B. Graves Cook permanent adminis-tratrix as it is reproduced in the transcript of this case clearly makes an unqualified appointment and appears to have been intended to be conclusive of that matter and the issues necessarily decided in association therewith. No one interested in the W. T. Cook estate gave notice of appeal within ten days, nor filed an appeal bond within fifteen days after rendition of such order to perfect an appeal therefrom in conformity with the direct appeal requirements of Rules 332 and 333, Vernon’s Ann.Tex.Rules of Civil Procedure. Neither was review of the order sought by way of bill of review or certiorari. The order of February 26, 1965, is an appealable order of the probate court. “Decedents’ Estates, 18 Tex.Jur.2d 134, § 128. The order became final and conclusive in this direct appeal when the time period for appeal expired; subject of course to the power of the probate court over its orders during the court term the order was made.

A few days following the order appointing Mrs. Cook permanent administratrix, she, on March 2, 1965, filed a temporary administratrix’s sworn final account in which she asked to be appointed permanent administratrix, an appointment that had already been accorded her by the order of February 26, 1965. The inconsistent relief prayed for is emphasized in this reproduction of the prayer to her final account, to-wit:

“WHEREFORE, PREMISES CONSIDERED, this Successor Temporary Administratrix, Willie B. Graves Cook, requests that she be discharged as Successor Temporary Administratrix and be appointed permanent Administratrix and that she and her sureties be discharged from all liability as Successor Temporary Administratrix and said bond be continued in a reduced amount as may be deemed appropriate by this court that said bond be applicable to her and her sureties as permanent Administratrix and for such other orders as the court may find expedient to simplify the administration of this estate.”

A written objection to the temporary ad-ministratrix’s final account was filed by Weldon Fisher, who is described in his pleading as “an heir at law of W. T. Cook and a person interested in this estate * * ”. Between the date Weldon Fisher filed his objection to the account and the final order made thereon on May 4, 1965, numerous pleadings were filed, but a description of all of them is not important to an understanding of the issues determined in this appeal.

An order dated May 4, 1965 (the final of a series) approving the temporary adminis-tratrix’s final account preliminarily recites that sworn testimony was heard in open court on three separate occasions and then (1) approves the temporary administra-trix’s final account as supplemented; (2) awards attorney fees to the temporary ad-ministratrix’s attorney; (3) allows the temporary administratrix fees for service in that capacity; (4) adjudges all costs of the proceedings against L. B. Fisher and Weldon Fisher jointly; (5) discharges the temporary administratrix, as such, from the administration of the estate; (6) releases and discharges the sureties on the temporary administratrix’s bond; (7) appointed Willie B. Graves Cook permanent adminis-tratrix of the estate of W. T. Cook deceased, as of the date of the order; and (8) set the amount of bond required of her in this capacity, etc. Willie B. Graves Cook having excepted to the action of the court with respect to certain portions of the order, and L. B. Fisher, Willie Cook Farley and Weldon Fisher having made like exceptions to other parts, the court set appeal bonds at $250.00 as to each of the parties’ appealing from the order to the district court.

Willie B. Graves Cook abandoned her appeal to the district court, but L. B. Fisher, Weldon Fisher and Wilma Cook Farley gave timely notice of appeal and seasonably filed their appeal bonds. The mechanics of perfecting an appeal to the district court is not questioned. Willie B. Graves Cook as defendant in the district court and as administratrix of the estate of W. T. Cook filed a sworn instrument labeled' “Motion for Summary Judgment and/or Dismissal”. L. B. Fisher, Weldon Fisher and Wilma Cook Farley filed a written but unsworn reply thereto. After a summary judgment hearing in the district court an order was entered dismissing the appeals of the two Fishers and Wilma Cook Farley and assessing costs against them.

One of the complaints in this court of appellants, L. B. and Weldon Fisher and Wilma Cook Farley is that the district court had jurisdiction of the appeal. Earlier in the opinion the absence of an effort to appeal from the original order dated February 26, 1965, appointing Mrs. Cook permanent administratrix was discussed and the conclusion expressed that for the purpose of the present review the order constituted a final adjudication of that question. In the further recitation of the facts it has been set out that the Judge of the Probate Court on May 4, 1965, entered a second order appointing Mrs. Cook permanent administratrix of the W. T. Cook estate; a position she then occupied by virtue of the unvacated first order. The appointment of a permanent administratrix in the order of May 4, 1965, is a nullity. Mullins v. Thomas, 136 Tex. 215, 150 S.W.2d 83 (Comm.App. 1941, op. adpt.); Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705 (Comm.App.1944, op. adpt.); 1 Freeman on Judgments 180 § 102 (5th Ed.); Rule 301, V.A.T.R. The district court was without jurisdiction to review the appointment of Willie B. Graves Cook as permanent administratrix, and its order dismissing that portion of the appeal from the probate court must be affirmed

Review of a probate court order approving the account of a temporary administrator may be had by appeal to the district court. Richardson v. Kennedy, 74 Tex. 507, 12 S.W. 219; Cook v. Wilmeth (Tex.Civ.App.1942), 166 S.W.2d 359, no writ. In this instance the order of the probate court approved the temporary ad-ministratrix’s final account, released sureties, allowed fees to the administratrix and her attorneys, assessed costs, etc. These matters are proper objects of a review by trial de novo on appeal to the district court. In the probate court the burden of proof to show the justice of the final account is on the temporary administratrix. “Decedents’ Estate”, 19 T.J.2d, § 1051. Considered as pleadings the final account and the objections to it raised issues as to material facts that are not settled by the record. In the district court the issues are tried de novo in accordance with procedure applicable in other civil suits. Rule 334; “Decedents’ Estates”, 19 Tex.2d 121 § 1070. The burden of proof to sustain the account was on Willie B. Graves Cook. The motion for summary judgment was sworn to, but the motion contained no evidentiary matter bearing upon the fact issues raised. No depositions, affidavits or admissions were filed. In short, genuine issues of material fact that Willie B. Graves Cook had the burden of proving were left unresolved. The district court should not have dismissed the appeal from the probate court’s approval of the final account.

The judgment of the trial court dismissing the appeal from the order appointing Willie B. Graves Cook is affirmed. The remainder of the judgment is reversed.

       The status of each of these parties as persons interested in the estate was not an issue in either of the courts below.