text:
    James Cleveland (Jimmy) BURGETT v. The STATE of Texas, Appellee.
    No. 38860.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1968.
    Floyd A. Hunter, Harold F. Curtis, Jr., Greenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

At a prior term of this court we affirmed this conviction for assault with intent to murder with malice. (Burgett v. State, Tex.Cr.App., 397 S.W.2d 79) However, the Supreme Court of the United States granted certiorari and reversed our decision. (Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319)

In obedience to the mandate of the Supreme Court, the mandate of this court heretofore issued is recalled and the judgment is now reversed and the cause remanded.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Viola Taylor WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40937.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1968.
    John W. O’Dowd, John Michael lile, Houston, for appellant.
    R. A. Bassett, Dist. Atty., R. A. Stall-ings, County Atty., Richmond, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is felony theft; the punishment, seven years, probated.

Appellant’s first ground of error is that the proof does not show appellant’s identity as being the person who committed the offense charged. The store manager and the arresting officer identified appellant as the person who took from the store at least 16 cartons of cigarettes which were later recovered from her.

Her second ground of error is her contention that a felony was not proven. The evidence shows that appellant took at least 16 cartons of cigarettes at the market value of $3.29 per carton, which is sufficient to show a felony.

Finding no reversible error, the judgment is affirmed.


author: DICE, Judge.

text:
    Ex parte Virgil KELLISON.
    No. 40998.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1968.
    John T. Forbis, Childress (By Court Appointment), for relator.
    John Gillham, Dist. Atty., Clarendon, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

This is a habeas corpus proceeding attacking petitioner’s conviction for unlawfully possessing a forged instrument, with punishment enhanced to life imprisonment under Art. 63, P.C.

The conviction was in Cause No. 1990 in the District Court of Childress County on January 16, 1939. Petitioner is presently confined in the Texas Department of Corrections under said conviction and life sentence.

From facts certified to this court by the Honorable Charles L. Reynolds, Judge of the 100th Judicial District Court of Chil-dress County, after a hearing held under Art. 11.07, C.C.P., it appears that petitioner was not represented by counsel at the trial and at such time was indigent and did not waive the services of an attorney. It is also made to appear that petitioner was not represented by counsel at the time of his conviction in the State of Oklahoma, in the year 1932, for forgery, second degree, which was one of the convictions used by the state to enhance the punishment.

Under the decision of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and subsequent opinions by that court, petitioner’s conviction is void. See, also, Ex parte Williams, Tex.Cr.App., 420 S.W.2d 931, opinion delivered November 22, 1967, and cases there cited.

The application for writ of habeas corpus is granted, and the petitioner, having served in excess of the maximum of five years — which could have been legally assessed for the primary offense of unlawful possession of a forged instrument, Art. 998, P.C. — is ordered released from further confinement under the conviction in Cause No. 1990. Ex parte Puckett, 165 Tex.Cr.R. 605, 310 S.W.2d 117; Ex parte Pruitt, 139 Tex.Cr.R. 438, 141 S.W.2d 333.

It is so ordered.


text:
    Filiberto CENA et al., Appellant, v. The STATE of Texas, Appellee.
    No. 40673.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.
    Rehearing Denied Jan. 31, 1968.
    Bob Heath, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Joseph W. Doucette and J. E. Naron, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal by a surety from a judgment forfeiting an appearance bond in the sum of $2,500.00.

Appellant’s first ground of error is that the court erred in rendering final judgment because there were no pleadings to support the same. Appellant being an attorney, appeared pro se, and during his testimony stipulated that a judgment nisi was entered on April 7, 1966, the day the bond was forfeited, and he further stipulated that the same might be introduced in evidence. The judgment nisi appears in that portion of the record prepared by the clerk which precedes appellant’s answer and his original petition which alleged that one Natalia Cena agreed to indemnify and hold him harmless in the event the principal to the bond forfeited the same. We are therefore not impressed with his contention made on appeal that no such pleadings existed or that he was not notified of the hearing when final judgment was entered on April 3, 1967.

By letter of June 17, 1967, addressed to the clerk of the trial court appellant requested the clerk to include such Judgment of Forfeiture in the “Transcript” and the same was so incorporated. He may not be heard to complain that the same does not appear in the record twice.

He next contends that the bond is defective in that it does not give the time when the principal was to appear as provided by Sec. 5 of Article 17.08, Vernon’s Ann, C.C.P. The bond provides in part:

“Now if the said Filiberto Cena shall be and personally appear before D. F. Thompson, Jr., Justice, at the Special Term of the Justice Court to be held in and for Harris County, at the Court House, Annex No. 1, 8903 La Porte Expressway, in the City of Houston in Justice Precinct No. 2, Harris County, Texas, INSTANTER, there to remain in attendance from day to day, and term to term, until discharged by due order of the Court, to answer the aforesaid accusations against him, and shall personally appear for any and all subsequent proceedings had relative to the above charges, before the Grand Jury of said County and before any Court of said County in which said subsequent proceedings may be pending and not depart the Court without leave, and then in that case the bond will be null and void, otherwise to remain in full force and effect.”

The bond is in complete accord with the requirements for such bonds set out in Articles 273 and 275a, V.A.C.C.P., 1925, in effect at the time of the making of the bond (now Articles 17.08 and 17.09, V.A.C.C.P., 1965) and is therefore not defective.

Finding no reversible error, the judgment is affirmed.


author: BELCHER, Judge.

text:
    Jerry Don MARTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 40790.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    Rehearing Denied Jan. 17, 1968.

      Hernandez & Cazorla, by Frank P. Hernandez, Dallas, for appellant.
    Henry Wade, Dist. Atty., Jim Ramsey, Alton Alsup, Jr. and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The appellant was convicted of operating an automobile while his operator’s license was suspended; the punishment, 90 days in jail and a $200 fine, probated for a period of six months.

Officer Tillery, Patrol Division of the Dallas Police Department, testified that on the date in question he stopped the appellant after he had observed him commit a traffic violation while driving an automobile upon the public streets of Dallas; that upon asking the appellant for his driver’s license, he said he did not have one and that his license was under suspension.

The state introduced three exhibits in evidence. They were authenticated copies of the driving record of the appellant, including the order of suspension of his operator’s license. Included also as part of these records was a physical description of the appellant! The only objection to these exhibits was directed to Exhibit 1-A on the ground that the copy given appellant was not signed by Roland Warner whereas the one introduced in evidence was.

The appellant did not testify or offer any evidence in his behalf.

The evidence is sufficient to authorize the finding that the appellant operated an automobile upon a public street while his operator’s license was under suspension as alleged.

It is contended that the admission in evidence of appellant’s prior suspensions and actions of the Texas Department of Public Safety in connection with the instant charge, was error.

The authenticated driving record of the appellant which includes some of the matters complained of was introduced in evidence. In the absence of any valid objection to the exhibits containing such matters, no error is shown.

Appellant’s third ground for reversal is that the trial court committed error in refusing to order the State of Texas to answer the interrogatories propounded by the defendant.

Art. 39.02, Vernon’s Ann.C.C.P. provides:

“Depositions of witnesses may also be taken by the defendant. When the defendant desires to take the deposition of a witness, he shall, by himself or counsel, file with the clerk of the court in which the case is pending an affidavit stating the facts necessary to constitute a good reason for taking the same, and an application to take the same. Provided that upon the filing of such application and, after notice to the attorney for the State, the court shall hear the application and determine if good reason exists for taking the deposition. Such determination shall be made based on the facts made known at the hearing and the court, in its judgment, shall grant or deny the application on such facts.”

The defendant may be permitted to take oral or written depositions if he shows “good reason” at a hearing before the court, and the court determines that such reason exists. 44 Texas Law Review, 1004.

The record does not reveal an affidavit stating facts necessary to constitute a good reason for taking the deposition. Thus, the appellant has failed to follow all the required statutory procedures to submit written interrogatories; and there was no error in the trial court’s refusal to order the state to answer the same or by subsequently admitting evidence at the time of trial on matters contained in said interrogatories.

The judgment is affirmed.


author: ONION, Judge.

text:
    Ovle John STEWARD, Appellant, v. The STATE of Texas, Appellee.
    No. 40898.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1968.

      George C. Thompson, Jr., Fort Worth, (Court appointed), for appellant.
    Frank Coffey, Dist. Atty., Grady Hight and Glenn Goodnight, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Robbery by Assault; the punishment, enhanced under the provisions of Article 62, Vernon’s Ann.P.C., life.

On May 3, 1966, the appellant committed the robbery of a drive-in grocery and market in Arlington, Texas. At pistol point he caused the owner and an employee of the store to empty the money from two cash registers into a paper sack. A traffic patrolman, alerted by a passer-by, entered the store during the robbery unobserved by the appellant. As the appellant was leaving the store the officer called to him to stop. The appellant then turned and fired at the officer. The officer returned the fire and struck the appellant with a bullet in his right forearm. The appellant was captured shortly thereafter in a nearby alley.

The indictment charged the capital offense of Robbery by Assault with Firearms in the first count. The very same offense was alleged as Robbery by Assault (a non-capital felony) in the second count, and the third paragraph alleged a prior conviction of robbery for the purpose of enhancement.

Initially, the appellant attacks the indictment. Although no motion to quash was filed prior to trial, appellant contends the trial court erred in failing to sustain his “motion to strike” the third “count” of the indictment alleging the prior conviction for enhancement filed (May 12, 1967) long after notice of appeal. Trial commenced on October 24, 1966, and sentence was pronounced and notice of appeal was given on December 19, 1966. Clearly the motion was untimely filed. Bond v. State, 171 Tex.Cr.R. 119, 345 S.W.2d 520; Merrel v. State, Tex.Cr.App., 374 S.W.2d 240; Valadez v. State, Tex.Cr.App., 408 S.W.2d 109; Wilson v. State, Tex.Cr.App., 398 S.W.2d 291. In view of his claim of fundamental error we shall, however, discuss the same. Appellant urges that the third paragraph makes no reference to said indictment and the said indictment does not make the piece of paper (third paragraph) a part thereof by reference or otherwise. We reject such contention for it appears from a photostatic reproduction of the indictment in the record on appeal that the third paragraph is securely attached by scotch tape to the rest of the indictment forming an integral part thereof and refers to the appellant by name. There is no showing that the indictment was not returned in this manner by the grand jury. See Jenkins v. State, 64 Tex.Cr.R. 86, 141 S.W. 222 (an indictment pasted together).

He further claims that the indictment is fundamentally defective as it reflects that only the first count thereof is signed by the grand jury foreman. Even if true, the same would not constitute reversible error. Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777.

In Ex parte King, supra, it was held that the signature of the foreman of the grand jury not being essential to the validity of the indictment the fact that one count thereof was signed and not the others would be immaterial.

It appears that a printed one-page form with appropriate blanks was used to allege the capital offense contained in the first count. At the proper juncture in the printed form the second count and third paragraph, also on printed forms, were scotch taped thereto elongating the first page of the indictment. A second page contains a proper conclusion for the entire indictment, and a bob-tailed third page contains the signature of the grand jury foreman. The third page, prior to the changes in forms above mentioned, was apparently a part of the printed form for alleging the capital offense of robbery by assault with firearms found on the first page of the indictment. It clearly appears that the entire indictment was signed by the grand jury foreman. Further, no objection as to the form was made prior to or during the trial. We perceive no error. See Jenkins v. State, supra; Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362. We do observe, however, that in the time it took to “construct” this indictment from various printed forms with all the necessary copies, a much more acceptable form could have been typed or devised.

In his next ground of error appellant complains that though the State had filed its 15 day written notice to seek the death penalty in connection with the first count of the indictment as provided by Article 1.14, V.A.C.C.P., the prosecutor on the day of the trial announced on appellant’s plea of not guilty that he would withdraw the death penalty notice, waive and abandon the first count of the indictment and that he would proceed on the second count and the third paragraph of the indictment. Such action, appellant contends, deprived him of reasonable notice and caught him by surprise as he had prepared to defend against the capital offense. We find no motion for continuance in the record or any evidence to support appellant’s contention assigned as a ground of error on appeal. We know of no requirement that the State must give written or reasonable notice of its intention to waive and abandon a count in the indictment alleging a capital offense under the circumstances here described. Even where the defendant in a capital case has waived trial by jury and entered a plea of guilty before the court following the waiver in writing by the State of the death penalty, we find no statutory time limitation required between such waiver of the death penalty and the trial. See Article 1.14, supra.

In his fourth ground of error appellant contends that his conviction under the provisions of Article 62, V.A.P.C. cannot be sustained because there was no evidence introduced to show the prior conviction alleged. It is claimed that the stipulation entered into between the State’s attorney, the appellant in person and his counsel to the effect that the appellant was so previously convicted as alleged is insufficient because it made no reference to the identity of the person who would have so testified. We cannot agree that a personal stipulation by a defendant in a criminal case that he is the same person who was previously convicted is invalid for the failure to refer to the particular name of some witness who would so testify. Who would know better than the defendant himself whether he had been so previously convicted? Certainly if the stipulation does depend upon the testimony of some person other than the defendant it would be proper that the stipulation reveal the identity of such person as well as a waiver by the defendant of the appearance, confrontation and cross-examination of such person as a witness.

While the case at bar involved a plea of not guilty before a jury and the stipulation was therefore not governed by Article 1.15, V.A.C.C.P., we observe that nevertheless the appellant entered a written agreement to stipulate, waiving the appearance, confrontation and cross-examination of witnesses (without identity) against him as to proof of the prior conviction.

Appellant’s fourth ground of error is overruled. The stipulation entered was sufficient to relieve the State of the necessity of further proof to sustain the allegation that he had been previously convicted as alleged of an offense of like character. Wiles v. State, Tex.Cr.App., 397 S.W.2d 865.

A number of appellant’s grounds of error and bills of exception relate to appellant’s court appointed counsel. They shall be considered together.

The record reflects that on September 16, 1966, Hon. Tim C. Curry was appointed to represent the indigent appellant and a formal order was entered. On October 24, 1966, date of the trial, Hon. Al F. Curry, III, appeared as appellant’s counsel and the record refers to him as court appointed. The record does not reflect when such counsel was appointed, nor when the other counsel was allowed to withdraw, if he was. The record does show, however, that the two attorneys are brothers and practice law together. On the morning the trial began the appellant filed his own handwritten motion to dismiss his counsel without reference to counsel’s name, but it was obviously directed to counsel then present in court. Appellant presented such motion to the court personally. When the court determined that the main thrust of the motion was an effort of the appellant, who was in custody, to get a hair cut and different clothes, the motion was overruled, and the trial was postponed until 2 p. m. to give the appellant an opportunity to make himself more presentable. No claim was made to the trial court that he had appointed one attorney and another had appeared. The court’s attention was not directed to the lack of any order appointing Hon. Al Curry, III, no effort was made to show date of counsel’s appointment, no motion for continuance was filed and no request for additional time was made. Both appellant and his counsel announced ready for trial.

In his motion for new trial appellant alleged that he and his court appointed counsel did not sign the ten day written waiver required by Article 26.04(b), when the trial is had within ten' days of counsel’s appointment. Said motion did not allege the date of such appointment. The motion was filed on October 26, 1966, was never amended, and was overruled by the court after a hearing on December 19, 1966. The motion for new trial was overruled by operation of law, prior to such hearing, when not acted upon during the 20 days allowed by Article 40.05, V.A.C.C.P. (former Article 755) ; Newhall v. State, Tex.Cr.App., 404 S.W.2d 592; Smith v. State, 166 Tex.Cr.R. 574, 316 S.W.2d 750; Mahan v. State, 163 Tex.Cr.R. 36, 288 S.W.2d 508.

If evidence was heard with reference to said motion as indicated by the order overruling the same, it was not brought forward in the record on appeal. In absence of such evidence the action of the trial court in overruling the motion for new trial, even if not overruled by operation of law, is not before this Court for review.

There can be no question that a showing on direct appeal of a failure to comply with the mandatory provisions of Article 26.04, supra, would call for reversal. Farmer v. State, Tex.Cr.App., 419 S.W.2d 382; Bennett v. State, Tex.Cr.App., 382 S.W.2d 930; Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775. Cf. Ex parte Meadows, Tex.Cr.App., 418 S.W.2d 666 (a different rule prevails in a collateral attack on an otherwise valid conviction in the absence of a showing of injury).

If, on the other hand, counsel’s appointment has been more than ten days prior to trial, Article 26.04, supra, has no application. Lamar v. State, Tex.Cr.App., 415 S.W.2d 926.

In absence of a showing of the date of trial counsel’s appointment, we would not be inclined to reverse under the circumstances here presented.

While recognizing that in most cases trial counsel is best qualified to handle the appeal, we reject appellant’s claim that he has been denied due process by having been furnished two different attorneys, one at the trial and another on appeal. Dyches v. State, Tex.Cr.App., 382 S.W.2d 928.

The trial judge must be given a wide discretion and latitude regarding the appointment of counsel on appeal as circumstances vary from case to case. There may be many valid reasons why appointed trial counsel may be allowed to withdraw and other counsel appointed on appeal.

The record shows that the appellant was sentenced on December 19, 1966, with trial counsel present, and on December 29, 1966, at appellant’s request counsel was appointed on appeal. The record is otherwise silent as to the reason the trial court saw fit to appoint a different counsel on appeal. In Dyches v. State, supra, it was held that a reversal will not follow because the appointment of appellate counsel was made after expiration of the time for filing a motion for new trial and bills of exception where the record failed to reflect any error during the trial.

In the case at bar, as noted above, trial counsel filed a motion for new trial. We cannot agree that the trial court abused its discretion in refusing to entertain a second motion for new trial presented (May 12, 1967) long after sentence and notice of appeal. See Barnett v. State, 163 Tex.Cr.R. 270, 290 S.W.2d 234; Rendon v. State, Tex.Cr.App., 397 S.W.2d 430; Mendoza v. State, Tex.Cr.App., 411 S.W.2d 546. This is true even though appellate counsel did not see a transcription of the court reporter’s notes until April 3, 1967.

The trial court extended the time for filing bills of exception at appellant’s request, and appellant was given full benefit of the procedure conducted in the trial court under the provisions of Article 40.09, V.A.C.C.P.

We appreciate the difficulty of appellate counsel in dealing with a record not of his own making. This is, of course, a difficulty common to all appellate counsel, employed or appointed, where they have not participated in the trial.

The record not reflecting error, appellant’s grounds of error as to his right to counsel are overruled.

The judgment is affirmed.

      . Allegations as to prior convictions do not constitute “counts” in the indictment. Square v. State, 145 Tex.Cr.R. 219, 167 S.W.2d 192; Beck v. State, Tex.Cr.App., 420 S.W.2d 725. Even the United States Supreme Court has erroneously referred to such allegations as “counts.” See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (Nov. 13, 1967).

      . It is further noted that in Ex parte Landers, Tex.Cr.App., 366 S.W.2d 567, this Court said:
      “We note further that although Art. 396 C.C.P. relating to Requisites of an indictment provides, in Section 9, ‘It shall be signed officially by the foreman of the grand jury,’ such signature is not essential to the validity of the indictment. Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777, and other cases cited under Art. 396, Note 21, Vernon’s Ann.C.C.P.” See also 1 Branch’s Anno.P.C., 2d Ed., Sec. 533, p. 511; 30 Tex.Jur.2d, Indictment and Information, Sec. 17, p. 560; 21A Texas Digest, Indictment and Information, 33(3) p. 33. Observe that Article 396 is now Article 21.02, Vernon’s Ann.C.C.P., 1965.


author: PER CURIAM. MORRISON, Judge.

text:
    Clarence Henry ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 40770.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.
    On Motion to Reinstate Appeal Jan. 10, 1968.
    Roy G. Baker, Sherman, Cox & Cox, Sherman (On Appeal Only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

Unlawfully carrying a pistol is the offense; the punishment, a fine of $100.

The record on appeal does not include sentence pronounced by the trial court, as required by Articles 40.09-1, 42.02, and 42.04, Vernon’s Ann.C.C.P.

The appeal is dismissed.

OPINION ON MOTION TO REINSTATE THE APPEAL

MORRISON, Judge.

Sentence has now been pronounced, notice of appeal given, and the appeal is reinstated. We will now discuss the case on the merits.

Appellant’s sole contention is that the evidence is insufficient to sustain the conviction because the record shows without question that appellant was at the time of his arrest a legitimate traveler, and therefore not guilty by virtue of the exception contained in Article 484, Vernon’s Ann.P.C.

Trial was had before the court without the intervention of a jury, upon a plea of not guilty.

The agreed statement of facts authorized by Article 40.09, Sec. 14, Vernon’s Ann.C. C.P., reflects that the following facts were proven. Appellant was a Staff Sergeant in the Air Force on duty at Perrin Air Force Base in Grayson County, where he maintained a home for his family, that in June 1966, he was ordered to attend a special school at Sheppard Air Force Base in Wichita Falls, which he attended regularly until the month of October 1966, and that each week-end he would return to his home in Grayson County, some 120 miles away. On September 19, 1966, appellant took his pistol from his home in Grayson County and put it in the glove compartment of his car, where it remained until he reached Sheppard Air Force Base, at which time he removed the pistol from the glove compartment and placed it in his quarters. On September 23, 1966, the day charged in the information, appellant packed his belongings at Sheppard (including his pistol) and started home to Grayson County. Shortly .before reaching home he was involved in an automobile accident (for which it appears he was not charged with any violation of the traffic laws) and after determining that his automobile would have to be towed to a garage for repairs, appellant took his pistol and some important papers enclosed in a paper bag from his automobile and awaited the arrival of the Highway Patrol. Upon his arrival at the scene, the patrolman asked to examine the paper bag and placed appellant under arrest for unlawfully carrying a pistol.

We have concluded that appellant’s contention is sound and that this conviction cannot stand.

Accordingly, the judgment is reversed and the cause is remanded.


text:
    Ex parte Robert Louis STEVENSON.
    No. 40997.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1968.

      John E. Chamberlain, Memphis (By Court Appointment), for relator.
    John Gillham, Dist. Atty., Clarendon, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an original application for writ of habeas corpus by an inmate of the Texas Department of Corrections. Petitioner challenges the legality of his conviction as a habitual criminal on February 2, 1965, in Cause No. 2293 in the 100th Judicial District Court of Hall County, which conviction was affirmed by this Court. 395 S.W.2d 626. His grounds are that he was indigent and was not represented by counsel when he was convicted of burglary w ith-out force in Cause No. 9034 on May 10, 1938, and of grand larceny on November 20, 1950, in Cause No. 9897, both convictions occurring in the District Court of El Paso County, Colorado, and that both convictions were improperly used for enhancement in the 1965 Texas trial in Hall County.

In accordance with the provisions of Article 11.07, Vernon’s Ann.C.C.P., as amended, and the opinion of this Court in Ex parte Young, Tex.Crim.App., 418 S.W.2d 824, petitioner’s pro se application for writ of habeas corpus was filed in the convicting court. The Honorable Charles L. Reynolds, Judge of the 100th Judicial District Court, having determined that petitioner’s application containing sworn allegations of material unresolved issues of fact, granted on a hearing on the disputed fact issues, and appointed counsel to represent this indigent petitioner at said hearing. Notice was properly given to the District Attorney and the Attorney General of Texas.

Following such hearing on November 2, 1967, Judge Reynolds entered his findings of facts and conclusions of law and caused the same together with a narration of the facts to be transmitted to this Court. In his findings of facts and conclusions of law the Judge found that the petitioner was without counsel at the time of both of his prior Colorado convictions used for enhancement and that in such cases he did not knowingly and intelligently waive his right to counsel. He concluded that such convictions were void and could not properly have been used for enhancement in Cause No. 2293 in the 100th District Court wherein the petitioner was charged by indictment with the instant offense of felony theft. The record supports such findings and conclusions and further reflects without dispute that the petitioner was indigent at the time of his Colorado convictions. We are in full accord with Judge Reynolds’ conclusions.

Under the holding of the United States Supreme Court in Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526, the Colorado state convictions were not available to enhance the punishment for the subsequent offense of felony theft. Ex parte Greer, Tex.Cr.App., 408 S.W.2d 711; Ex parte Hammonds, Tex.Cr.App., 407 S.W.2d 779; See Burgett v. Texas, 389 U.S. 109, 83 S.Ct. 258, 19 L.Ed.2d 319. See also Ex parte Williams, Tex.Cr.App., 420 S.W.2d 931 (1967).

In Burgett v. Texas, supra, the Court said:

“To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.”

The application for writ of habeas corpus is therefore granted and it is ordered that petitioner be released from further confinement under the life sentence affirmed by this Court in Stevenson v. State, Tex.Cr.App., 395 S.W.2d 626.

Since the petitioner has not served the maximum term which could have been imposed for the primary offense charged in the indictment, he is remanded to the custody of the Sheriff of Hall County to answer the charge of felony theft contained in the indictment pending against him in Cause No. 2293.

It is so ordered.


author: WOODLEY, Presiding Judge. ONION, Judge.

text:
    Hilario Rodriguez TORRES, Appellant, v. The STATE of Texas, Appellee.
    No. 40888.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1968.
    Mitchell Esper, El Paso (on appeal only), for appellant.
    Barton Boling, Dist. Atty., James H. Kreimeyer, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is burglary; the punishment, 12 years.

The indictment alleged burglary of a house occupied and controlled by Roy A. Vannoy on or about March 26, 1966.

The state’s evidence reflects that Mr. Vannoy was nightwatchman and, as such, in custody and control of the building and all property of the White House Department Store in El Paso while on duty.

He came on duty at 1 A.M. on March 26, 1966, and shortly thereafter checked the store and found it completely secured. He checked the store again, starting on the third floor, at 2:30 A.M. and found that the cash registers had been broken into. He immediately went to the first floor and to the front of the building and called the police. While waiting for the police he saw a person wearing a small black hat and a dark three-quarter length coat in front of the elevators on the main floor.

A short time later appellant was brought to the store by one of the officers and Mr. Vannov testified: “This time he still had on a small hat and a black short coat, a three-quarters coat.”

Upon further investigation it was discovered that cash registers on the mezzanine and the fourth floor had been broken into, a desk on the fifth floor had been rifled; and a window, outside of which was a fire escape leading to the McCoy Hotel, had been broken.

Jesse Ramirez, one of the police officers who responded to the call, saw appellant running and pursued him in the patrol car and then on foot; apprehended him as he got inside the Paso del Norte Hotel, and despite his resistance, took him into custody.

After appellant was returned to the White House Department Store he was searched and in excess of $500.00 in American money; more than one hundred pesos in Mexican money, and “White House Script” printed by the White House Department Store and given to customers as a cash credit for a returned article, were taken from his pockets.

The state’s testimony further reflects that 19 of the drawers of the cash registers each contained $40.00 in cash and $10.00 in Script, totalling $950.00. $1.88.24 in cash and $190.00 in Script was found on the floor and in the broken drawers after the burglary.

The state offered in evidence the written confession of the defendant and the court, after hearing evidence as to its voluntariness and admissibility, entered an order finding:

“That the said confession was made after statutory warning having been given the Defendant by Justice of the Peace Ben Mejia, Precinct No. 8, of El Paso County, Texas, and Detective Armando Nava of the El Paso Police Department, the person to whom the confession was given, and the Court further finds that said confession was freely and voluntarily given by the Defendant and the Defendant was not induced or caused by any person to give such statement by threats, persuasion, compulsion, intimidation, violence, promises, unlawful detention or anything else other than the free and voluntary act of the Defendant;
“That the said confession was signed by the Defendant after being translated from English to Spanish by Sgt. Ignacio Garcia of the El Paso Police Department and that thereafter it was voluntarily signed by the Defendant and the said confession is held admissible as a matter of law and fact by the Court after a hearing in the absence of the jury.
“It is further ORDERED, ADJUDGED and DECREED that the Defendant’s objection to the admission of such confession is hereby overruled.”

Appellant’s second ground of error is that the purported confession obtained from him was inadmissible and its admission in evidence constitutes reversible error.

In support of such contention appellant refers to his testimony to the effect that he was forced to sign the confession by various officers of the El Paso Police Department ; that he was not given the proper and required warnings and that at the time of his giving the confession he was in an intoxicated condition and had not slept for quite some time.

All of this testimony was refuted by the testimony of police officers.

Citing Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided after the confession was made but before the trial at which it was admitted in evidence, appellant contends in part:

“In the present case, there is no testimony whatsoever that the Appellant was advised of his rights to counsel during said interrogations, and therefore, the Appellant’s rights guaranteed by the Fifth Amendment to the United States Constitution were clearly and wilfully violated.
“It cannot be argued that the Appellant’s silence or failure to ask for a lawyer during the interrogation constitutes a waiver of this requirement. * * ”

The record of the hearing before the court on the voluntariness and admissibility of the confession reflects that the following warning was given appellant as shown in the written confession made after it was given.

“El Paso Police Department, El Paso, Texas, Date: March 26, 1966; Time Commenced, 9:15 A.M.; Time Completed, 10:00 A.M.
“I, Hilario Rodriguez Torres, after being duly warned by Ben Mejia, Judge, who is the Justice of the Peace, Precinct 8 of El Paso County, Texas, at 4:28 A.M., at Judge Ben Mejia’s office on March 26, 1966, of the accusation against me and the affidavit, if any, filed in support of such accusation, that I have a right to retain counsel, that if I am unable to obtain counsel that I can request the appointment of counsel, that I have a right to an examining trial, that I am not required to make any statement at all and that any statement I do make may be used against me; and Detective Armando Nava, the person to whom this statement is made, also warned me that I do not have to make any statement at all, and that any statement made by me may be used in evidence against me in the trial or trials of the offense or offenses concerning which this statement is made, do hereby make the following voluntary statement. I have also been advised by the person taking this statement of my right to consult an attorney before making this statement, but I do not wish to'do so.” Initials, “H.R.T.”

The confession having been admitted in evidence and read to the jury, the issues raised by the evidence adduced before the jury as to its voluntariness were submitted to the jury.

We overrule the contention that the warning given appellant was insufficient or that procedural safeguards effective to secure appellant’s privilege against self incrimination were not used.

Our holding that the confession was properly admitted in evidence disposes of appellant’s remaining ground of error which relates to the sufficiency of the evidence to identify appellant as the burglar.

The judgment is affirmed.

CONCURRING OPINION

ONION, Judge.

I concur in the results reached by the majority, but feel compelled to express my own views since the majority has not discussed or mentioned the essential “waiver” requirement of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, as to the right to counsel and the privilege against self-incrimination. See discussion of such “waiver” requirement in this writer’s dissent in Charles v. State, (No. 40,608 — not yet reported).

Even though the confession was taken on March 26, 1966, Miranda v. Arizona, supra, is applicable as the trial in the case at bar commenced after June 13, 1966. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.

In trials commencing after June 13, 1966, as the case at bar (Oct. 12, 1966), the prosecution, prior to the introduction of a statement resulting from custodial interrogation, has the burden of not only showing that the Miranda warnings were given, but the burden also of initially coming forward and proving that after such warnings the accused effected a “voluntary, knowing and intelligent” waiver of his rights. The Chief Justice stated in the majority opinion of Miranda: “But unless and until such warnings and waiver are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.” (emphasis supplied)

It appears that the “waiver” referred to may be defined as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.2d 1461.

Even though it can be concluded that the warnings given the appellant were comparable to the Miranda warnings, or were at least as effective in apprising the appellant of his right to silence and in assuring a continuous opportunity to exercise it, we must consider whether “waiver” is reflected by the record before us. Such waiver cannot be presumed from a silent record.

It is observed in the appellant’s confession the following appears: “I, Hilario Rodriguez Torres, * * * do hereby make the following voluntary statement. I have also been advised by the person taking this statement of my right to consult an attorney before making this statement, but I do not wish to do so.” Initials “H.R.T.”

Such statement in the confession is a factor to be considered in determining if the accused affirmatively stated he desired to relinquish and waive his rights, but it is not determinative thereof.

At the top of Miranda’s statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and “with full knowledge of my legal rights, understanding any statement I make may be used against me.” In rejecting the validity of the alleged “waiver” contained in Miranda’s written statement, the Supreme Court held that “[t]he mere fact that he signed a statement which contained a typed-in clause stating that he had ‘full knowledge’ of his ‘legal rights’ does not approach the knowing and intelligent waiver required to relinquish constitutional rights.” Miranda v. State of Arizona, 384 U.S. at p. 492, 86 S.Ct. at p. 1637, 16 L.Ed.2d at p. 734. (emphasis supplied) See also People v. Keesler, 53 Misc.2d 268, 278 N.Y.S.2d 423; Charles v. State (dissenting opinion), supra.

While Miranda was not as explicit as it might have been regarding what constitutes an acceptable waiver, the majority opinion did say: “An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”

At the time of the confession the appellant was a 25-year-old Mexican national, reared near the United States border, who had prior experience with the police. He had been twice previously convicted of burglary in El Paso County and each time committed to the Texas Department of Corrections. It appears he was also convicted in the United States District Court on an immigration violation. Shortly after his arrest the appellant was taken at approximately 4:28 a. m. before Judge Mejia who gave him the warning required by Article 15.17, V.A.C.C.P., then in effect. Such warning was given to the appellant in Spanish since he did not appear to speak the English language. Testifying in his own behalf at the hearing on the voluntariness and admissibility'of his statement, appellant acknowledged that he had received such warning.

After the magistrate’s warning the appellant was taken to the city jail where he remained in a cell until 9:15 a. m. when Detective Nava began his interrogation of the appellant in Spanish. After determining from the appellant that he had been taken before a magistrate and given the warning required by Article 15.17, supra, Officer Nava then gave such warning again as well as the warning required by Article 38.22, V.A.C.C.P., then in effect, and also informed the appellant of his right to consult with an attorney before making any statement. Nava related that thereafter appellant stated he did not want an attorney. In order to clearly indicate that he had been properly warned and advised of his right to counsel and understood such rights and was free to exercise his rights and privileges at that time Nava requested the appellant to initial the portion of his statement relating to such warnings, which he did. It further appears that during the taking of the statement appellant corrected the Officer’s spelling of his street address in Juarez.

After the completion of the statement and before appellant signed the same, Detective Ignacio L. Garcia was called in to interpret the statement to him in the Spanish language. Officer Garcia testified that he explained to appellant the warnings contained in the statement and his right to counsel and appellant stated that he understood the same. As to the body of the confession Garcia related that he carefully went over each word with the appellant to insure that the Spanish he was using did not differ from the Spanish of appellant’s locale (Juarez) and that he understood the same. Thereafter the confession was signed in the presence of Nava, Garcia and two other witnesses.

The interrogation and the taking of the statement was completed within 45 minutes. After the warnings were given appellant expressly stated he did not want an attorney and understood the warnings and this was closely followed by his written statement under the circumstances here described. The record reflects that the warnings were given at the time of the interrogation and appellant was aware that he was free to exercise his rights and privilege against self-incrimination at that point in time. There is no showing of lengthy interrogation or incommunicado incarceration which would mitigate against the finding of a valid waiver.

Appellant’s testimony as to the involuntariness of his confession was contradicted by the testimony of other witnesses and the trial judge’s findings following the conclusion of the hearing on the admissibility and voluntariness of the confession is supported by the evidence.

Nothing therein would support a finding that this appellant was threatened, tricked or cajoled into a waiver.

Being satisfied that the State has discharged its burden of proof and that the evidence demonstrates a clear-cut affirmative waiver as required by Miranda, I concur. Judge MORRISON joins me in this concurrence.

      . It is observed that effective August 28, 1967, Article 38.22, Vernon’s Ann.C.C.P., was amended to provide: “The defendant must knowingly, intelligently, and voluntarily waive these rights prior to and during the making of the statement.” Acts 1967, 60th Leg., Oh. 659, Sec. 23, p. 1740.


author: BATEMAN, Justice.

text:
    James Neil NESBETT, Appellant, v. George H. NESBETT, Jr., Appellee.
    No. 16990.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 1, 1967.
    Rehearing Denied Dec. 29, 1967.
    Lee S. Bane, Dallas, for appellant.
    Wm. F. Billings, Charlie Wise, Dallas, for appellee.
   BATEMAN, Justice.

The sole question here is whether the joint will of George H. Nesbett, Sr. and his wife Jean is so contractual as to be irrevocable by the survivor. Both the probate court and the district court held that it was not. We agree.

George H. Nesbett, Sr., was married twice. The appellant James Neil Nesbett and the appellee George H. Nesbett, Jr., were sons of the first marriage. The second wife of George Sr. was Jean Nesbett, who had a niece named Marcello Thomas Snow, but no children. On July 12, 1956 George, Sr. and Jean signed a joint will, the pertinent parts of which are:

“ * * * we, George H. Nesbett, Sr., and Mrs. Jean Nesbett, husband and wife, * * * for the purpose of making the best disposition of our worldly affairs, do hereby make and publish this our Last Will and Testament, * * *.
“1.
“We direct that all our just and lawful debts, if any, and our funeral and burial expenses be paid by the Executor or Executrix, as the case may be, * * *.
“2.
“It is our will and desire, and we so direct that the survivor of us * * * shall, with all the rights and authority below given, have all the estate of every kind and description that we have accumulated during our marriage, to be used, occupied, enjoyed, sold, conveyed and expended by the survivor, as such survivor may desire, with the power of sale; however, should their be any of said community property remaining at the time of the death of the survivor of us, then in that event ONLY, we hereby give, devise and bequeath the remainder, if any, as follows:
“(a) One-half (½) to Marcello Thomas Snow.
“(b) One-half (½) to George H. Nesbett, Jr., and James Neal Nesbett, share and share alike, if one of them be deceased, the survivor of them shall take all of such remainder.
“3.
“It is our will and desire, and we so direct that the survivor of us, * * * shall have all our separate property and estate of ever kind and character, to be used, occupied and enjoyed by the survivor of us, so long as such survivor of us may live, and upon the death of such survivor, then in that event ONLY, we give, devise and bequeath the remainder of such separate property and estate to George H. Nesbett, Jr. and James Neal Nesbett, they shall share and share alike, if one of the should be deceased, the -survivor shall take all of our said separate property and estate.
“4.
“It is our will and desire and we so direct that the survivor of us be appointed Independent Executor or Executrix of this our Last Will and Testament, and that no bond be required of such Executor or Executrix.
“5.
“Should we * * * be killed at or near the same time or should we die from any cause at or near the same time, then in that event ONLY, we hereby constitute and appoint George H. Nesbett, Jr. as Independent Executor and that no bond shall be required of him as such Executor.”

After her husband’s death in 1959 Mrs. Jean Nesbett filed the said will for probate as his last will and qualified as executrix thereunder. She executed another will, dated May 16, 1963, leaving all of her property to appellee George H. Nesbett, Jr. She died in 1965. Appellee filed the later will for probate. Appellant contested it and offered the joint will of July 12, 1956 for probate as Jean’s last will.

The only testimony introduced was that of the attorney who had prepared, and was one of the subscribing witnesses to, both wills. It was stipulated that his testimony established that both wills were properly executed and witnessed. He also testified that when George, Sr. and Jean met in his office to execute the joint will, there was no discussion about whether or not the instrument would constitute a contract, but that “they wanted a joint will prepared and wanted it such that when one died the other one could do exactly what they wanted with it.” He said that he drew the will according to their wishes, after much discussion. When asked whether they requested that it be the one instrument, he replied: “Yes, they wanted it, wanted a joint will, wanted it where they could leave it to whoever they wanted to after one had died.”

At the conclusion of a nonjury trial on appeal from the probate court, the district judge admitted the will of May 16, 1963 to probate and denied probate of the joint will. In a single point of error on appeal the appellant says this was error because the joint will was mutual and contractual.

It is conceded that Mrs. Jean Nesbett was fully qualified, as to age and testamentary capacity, to make the will of May 16, 1963. Her only disqualification, appellant says, lies in the circumstance that she had contracted with her husband that she would not do so. No such express agreement is found in the joint will, or elsewhere in the record. Therefore, if she be found to have bargained away this important element of the ownership of property, i. e., the right to dispose of it by will, her contract to do so must be implied in the language of the 1956 will.

There has been much litigation involving contractual wills and the subject has been discussed in several law review articles. An analysis of such authorities points up the inescapable conclusion that, due to the singularity of each family situation, to say nothing of the divergent views of the appellate courts of the country, there is great disparity among the decisions, not only in the results, but in the theories upon which such results are reached. See Young, “The Doctrinal Relationships of Concerted Wills and Contract,” (1951) 29 T.L.R. 439; Bailey, “Contracts to Make Wills — Proof of Intent to Contract,” (1962) 40 T.L.R. 941; Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621, 625 (1957); Annotation, “Joint, Mutual and Reciprocal Wills,” 169 A.L.R. 9. These law review articles discuss the leading cases in Texas and other jurisdictions in considerable detail. We think it would serve no good purpose for us in this opinion to attempt to analyze the numerous Texas cases on the subject and show the applicability vel non thereof to the facts of this case, but will endeavor to decide this case on principles of law which seem to be fairly well established.

In the first place, the burden was on the appellant to prove that the joint will was “contractual” as well as testamentary in character. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1 (1946).

There being no extrinsic proof of an agreement to make a mutual, irrevocable will, appellant relies on the language of the will itself to prove that it was signed pursuant to such a contract, directing our attention to the use of the words we, us and our in the will, the equal division of the community property between the two families after the death of the survivor, and the joint execution of the will.

As held in Nye v. Bradford, supra, the mere making of a joint will does not of itself prove that it was made pursuant to a contract, but the will may, by its terms or in its recitals, conclusively prove or tend to prove that it is based on or executed in furtherance of a contract. See also Wagnon v. Wagnon, 16 S.W.2d 366, 369 (Tex.Civ.App., Austin 1929, writ ref’d); Sherman v. Goodson’s Heirs, 219 S.W. 839 (Tex.Civ.App., Texarkana 1920, writ ref’d). The phraseology of this ./ill certainly does not establish conclusively that it is based on or executed in furtherance of a contract to make a joint will which would be irrevocable by the survivor. The use of the words we, us and our cannot be given that effect any more than the mere fact that both Mr. and Mrs. Nesbett signed a joint will. City of Corpus Christi v. Coleman, 262 S.W.2d 790, 794 (Tex.Civ.App., San Antonio 1953, no writ).

We think there is much force to appel-lee’s argument, that the language used in this joint will suggests the implication that the makers were in agreement that the survivor would have the right of revocation and to change the plan of disposition of their property. Although they provided that the survivor should be the independent executor of the first to die, and that appellee be appointed as executor if the makers should be killed or die at or near the same time, no provision was made for the appointment of an executor for the survivor dying a natural death not at or near the time of the death of the other. It is argued logically, we think, that this suggests agreement that the survivor in those circumstances should have the right and would be expected to make a separate will after the death of his or her spouse.

But it is not necessary to rest this conclusion solely on an interpretation of the will itself. We have the benefit of the testimony of the attorney who drafted it according to the instructions and wishes of Mr. and Mrs. Nesbett and who says that they “wanted a joint will, wanted it where they could leave it to whoever they wanted to after one had died.” This, in our opinion, is sufficient to support the judgment of the trial court.

We conclude, therefore, that appellant failed to carry the burden of showing that Mrs. Jean Nesbett had so contracted with her husband respecting the making of the joint will as to destroy her' statutory right to make the later, separate will, and that no facts were shown which would in equity estop her from doing so. Therefore, appellant’s point of error is overruled and the judgment appealed from is

Affirmed.

       V.A.T.S., Probate Code, § 57.


author: COLEMAN, Justice.

text:
    John C. McADAMS, Appellant, v. V. C. BROWN, Appellee.
    No. 15123.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Dec. 7, 1967.
    Rehearing Denied Jan. 4, 1968.
    John Shirley, Roland Matthews, Texas City, for appellant.
    V. C. Brown, pro se.
   COLEMAN, Justice.

This is a suit for attorney’s fees brought in the County Court No. 1 of Galveston County, Texas. It was defended on the basis of the statute of limitation of two years. The trial court entered a judgment for the plaintiff after a trial to a jury.

The plaintiff pled that on or about the 22nd day of February, 1963, the defendant “employed” the plaintiff “to represent the said defendant, as owner and lessor of the ‘V’ Cafe * * * in Texas City, Texas, and the plaintiff attorney was to render and perform legal services and give advice to said employer defendant, at the request of and on behalf of said employer defendant. Further, for which employment contract the defendant obligated himself and did agree to pay to said plaintiff a reasonable sum of money * * * commensurate with the service rendered, the time involved, and the expense and cost to the attorney, in performing at the request of defendant * * * ”

In response to a special exception filed by the defendant, plaintiff filed a supplemental petition, to which was attached an exhibit detailing various services rendered to the defendant together with the dates on which such services were rendered. This exhibit reflects that between the dates March 10, 1963 and November 20, 1963 plaintiff had conferences with the defendant generally relating to the cafe, investigated certain people, prepared a preliminary and final draft of a lease, advised defendant concerning a sales contract, made several trips to Houston and Galveston at defendant’s request, and performed various similar services for the defendant. It further reflects that on December 10, 1963 he conferred with defendant relative to delinquent rent and the bankruptcy proceeding in which his tenant was involved, and that on March 11, 12 and 16, 1964 he went to the cafe with W. D. Slaton with reference to lease/purchase of “V” Cafe. This general statement followed: “The above does not represent completely the number of phone calls and office visits McAdams made to VCB, nor does it represent the number of times that McAdams promised VCB that he would pay him.”

Plaintiff’s original petition was filed November 22, 1965. The jury found that the plaintiff, V. C. Brown, was employed under a general agreement to represent defendant, John C. McAdams, in various matters without any agreement as to time and mode of payment. It found that “the fair and reasonable and necessary value of the legal services rendered” by plaintiff to defendant before November 22, 1963, was $709.00, and that the fair, reasonable, and necessary value of services rendered after that date was $-0-.

This case is complicated by the fact that there is no statement of facts. In such a case we must indulge all reasonable presumptions in favor of the judgment rendered. Boyd v. Robinson, 304 S.W.2d 430 (Tex.Civ.App., Waco 1957).

The judgment entered by the trial court recites: “ * * * it appearing to the Court that in compliance with said verdict of the jury, and under said verdict, Plaintiff is entitled to judgment; * * * ”

The jury found that there was a general agreement to represent the defendant in various matters without any agreement as to time and mode of payment. The presumption is that the evidence supported this finding of the jury, and, indeed, it is supported by the plaintiff’s pleadings on which the trial was had. Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946). The trial court did not disregard this finding of the jury, but expressly based his judgment thereon. Under these circumstances, and in view of the pleadings of the parties, it would be unreasonable to presume that the judgment of the trial court is supported by some independent ground of recovery established by the undisputed evidence. See McPherson v. Black, 346 S.W.2d 615 (Tex.Civ.App., Waco 1961, writ ref., n. r. e.).

The general rule of law applicable to this case is stated in 54 C.J.S. Limitations of Actions § 135 b, p. 55, as follows:

“Where an attorney is retained to perform legal services for a client in some particular matter, his right to compensation accrues and the statute begins to run when the services are rendered, but not until then, although the contract of retainer is not terminated; and the same is true where different, independent items of services are rendered on different occasions, the statute beginning to run as to each item of service from the time it is performed.”

This rule is supported in Texas by numerous cases, including: Jones, Adm’r v. Lewis, 11 Tex. 359 (1854); Montgomery v. Brown, 31 S.W. 1084 (Tex.Civ.App., 1895); Stark v. Hart, 22 Tex.Civ.App. 543, 55 S.W. 378 (1900); Austin v. Conner & McRae, 288 S.W. 552 (Tex.Civ.App., El Paso 1926, writ ref.); Caldwell v. Jones, 63 S.W.2d 761 (Tex.Civ.App., Amarillo 1933, writ ref.).

The amount found by the jury to be the reasonable value of plaintiff’s services was also found to be for services which were rendered more than two years prior to the institution of this suit. The plaintiff failed to secure a finding that he rendered services of value to the defendant that were not barred by the two year statute of limitation.

The verdict of the jury does not support the judgment entered by the Trial Court. The judgment is reversed and judgment is here rendered that the plaintiff take nothing.

Reversed and rendered.

PEDEN, J., not participating.


author: COLLINGS, Justice.

text:
    Hilton SHAHAN, Appellant, v. W. C. EAKIN, Appellee.
    No. 4186.
    Court of Civil Appeals of Texas. Eastland.
    July 28, 1967.

      Robert E. Ford, Abilene, for appellant.
    Gloria T. Svanas, Odessa, for appellee.
   COLLINGS, Justice.

W. C. Eakin, doing business as Dock’s Reverse Units and Rental Tools, brought this suit in Ector County against Hiltop Shahan, doing business as Cunningham and Shahan, upon a promissory note. The case was removed to Taylor County on a plea of privilege. Plaintiff’s unsworn petition describes the note without attaching a copy. The defendant answered by a general denial and subsequently after the case was transferred to Taylor County, filed his first amended original answer pleading a general denial, covenant not to sue, and no consideration for the execution of the note.

On December 20, 1966, plaintiff Eakin filed an unsworn motion for summary judgment without attaching a copy of the note. Such motion was set for hearing on February 14, 1967. On January 25, 1967, plaintiff filed his affidavit in support of his motion for summary judgment asserting that a copy of the note was attached thereto and made a part thereof; that plaintiff Eakin was the payee of such note dated October 3, 1963, at Abilene, Texas in the principal sum of $581.80, payable one year after date with interest at the rate of 6% per annum from maturity until paid; that defendant Shahan did pay $34.40 as interest on the note which payment was acknowledged but that no other payments had been made on said note; that there was then due and owing on said note the principal sum of $581.80, plus interest at the rate of 6% from October 17, 1964, plus an additional 10% for attorney’s fees. Neither the note nor a copy thereof was attached to plaintiff’s affidavit at the time of the filing of the motion. On February 10, 1967, the defendant Shahan filed his answer to plaintiff’s motion for summary judgment pointing out that plaintiff’s affidavit in support of the motion for summary judgment did not contain or have attached thereto a copy of the promissory note sued upon.

On February 14, 1967, at the hearing on the motion for summary judgment the court, over defendant’s objection, permitted the plaintiff to attach a photostatic copy of the note to his affidavit in support of his motion for summary judgment. The court thereupon entered summary judgment for the plaintiff Eakin against the defendant Shahan subject to the defense of failure of consideration asserted in defendant’s pleadings. The court set the case for trial upon such defensive issue on March 21, 1967. When the case was called for trial on March 21, .1967, no evidence of any kind was offered by plaintiff or defendant, and judgment was entered in favor of the plaintiff and against the defendant for the amount of the note, interest and attorney’s fees as prayed in plaintiff’s petition and as evidenced by the note, a copy of which was attached to plaintiff’s affidavit in support of his motion for summary judgment.

Appellant Shahan presents points contending that the court erred in rendering judgment against him. Such points are well taken.

Eakin alleged in his petition that he was the owner and holder of the note sued upon. Appellant asserts that by reason of his general denial the pleadings presented a fact issue on the question of whether Eakin was the owner and holder of the note. We agree with this contention. Alexander v. Houston Oil Field Material Company, 386 S.W.2d 540 (Tex.Civ.App., 1965, n. r. e.), and cases cited therein. Eakin, therefore, had the burden of proving that he was presently the owner and holder of the note. Proof of such fact was essential to his right to recover. No such proof is shown in the record. A photostatic copy of the note was attached to Eakin’s affidavit in support of his motion for summary judgment but that was no proof that he was presently the owner and holder thereof. Pat H. Stanford, Inc. v. Franklin, 312 S.W.2d 703 (Tex.Civ.App.1958, no writ history); Bryan v. Central Bank and Trust Company, 405 S.W.2d 228 (Tex.Civ.App. 1966, n. r. e.); Hall v. Fowler, 389 S.W.2d 730 (Tex.Civ.App.1965, no writ history). The court, therefore, erred in rendering judgment for Eakin.

The judgment is reversed and the cause is remanded.


author: GRISSOM, Chief Justice.

text:
    J. H. STRAIN & SONS, INC., Appellant, v. James D. COX, Appellee.
    No. 4188.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 22, 1967.
    Harris, Anderson, Henley, Shields & Rhodes, C. A. Searcy Miller, Dallas, for appellant.
    C. J. Eden, Breckenridge, for appellee.
   GRISSOM, Chief Justice.

• On November 11, 1965, at about 8:30 a. m., James D. Cox was driving his pickup and pulling a trailer east on a part of highway 180 in Stephens County which was under construction by J. H. Strain & Sons, Inc., when he collided with Strain’s sweeper. He filed this suit in Stephens County to recover the damages caused thereby. The Strain Company filed a plea of privilege to be sued in Taylor County, where it has its residence. Its post office address was alleged to be Tye, Taylor County, Texas. In a trial to the court, Strain’s plea of privilege was overruled and it has appealed.

Appellant presents eleven points of error. Its main contention appears to be that the record shows the inability of Cox to see Strain’s sweeper was caused by dust raised by vehicles of the traveling public, for which it was not reasonable. Of course, this conclusion does not follow if Strain had a duty to warn Cox of the location of its sweeper on Cox’s side of the road and its presence there was so obscured. Appellant also contends there was no evidence, or insufficient evidence, that Strain or its employee was responsible for operation of the sweeper; that there was no evidence, or insufficient evidence, that it failed to maintain a flagman or warning sign at the time and place of the accident and no evidence, or insufficient evidence, that either Carrington, appellant’s flagman, who, appellee testified, directed him to drive on the south side of the road under construction, or Cook, appellant’s sweeper operator, were acting within the course of their employment by appellant. There was sufficient evidence to support the conclusion that Strain passed appellant’s barricade and flagman, Carrington, and was directed by him to travel on the south side of the road which was under construction by appellant; that Cox did drive east on the south side for about three fourths of a mile and, when the road ahead was so clouded with dust, raised by either passing cars or Strain’s road sweeper, or both, that he could not see the sweeper, which was stopped near the center of the south side of the road, that he ran into the sweeper and suffered the damages for which he sued. There was ample evidence that the road was being constructed by appellant; that said flagman and sweeper were appellant’s employees acting within the scope of their employment; that the street sweeper which had been sweeping as it traveled west meeting Cox, had been turned off immediately before the accident; that said sweeper and automobiles had stirred up so much dust that the sweeper operator had turned off the sweeper just before Cox collided with it, because he could not see for the dust and that no one had warned Cox of such location of appellant’s sweeper. There was ample evidence from which the court could, and presumably did, find that appellant was guilty of negligence which was a proximate cause of the damages suffered by Cox when he ran into the sweeper.

In his controverting affidavit Cox sought to maintain the suit in Stephens County under exception 9a, Article 1995. It provides that a suit based upon negligence may be brought in the county where the negligence occurred and that the venue facts necessary for a plaintiff to establish by a preponderance of the evidence to sustain venue in such county under that exception are that:

1. An act or ommission of negligence occurred in the county where the suit was filed.

2. That such act or omission was that of the defendant, or its representative acting within the scope of his employment, and

3. That such negligence was a proximate cause of plaintiff’s injury.

We hold that the evidence is sufficient to support the court’s presumed finding of all said venue facts. See Allen M. Campbell General Contractors, Inc. v. McDonald, Tex.Civ.App., 347 S.W.2d 781; Galloway v. Nichols, Tex.Civ.App., 269 S.W.2d 850; John F. Buckner & Sons v. Allen, Tex.Civ.App., 272 S.W.2d 929, (writ dis.) and Houston & North Texas Motor Freight Lines, Inc. v. Watson, Tex.Civ.App., 293 S.W.2d 207.

All of appellant’s points have been considered and are overruled. The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    LUMBERMENS MUTUAL INSURANCE COMPANY, Appellant, v. Willis A. GRAYSON, Appellee.
    No. 4665.
    Court of Civil Appeals of Texas. Waco.
    Dec. 14, 1967.
    Rehearing Denied Jan. 11, 1968.
    Oster & Kaufman, Dallas, for appellant.
    Jack Stuart Cole, Norman A. Zable, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant from a summary judgment for plaintiff in a suit on an insurance policy.

Plaintiff Grayson sued defendant Insurance Company on a standard liability policy issued by defendant under the Assigned Risk Plan of the State of Texas, to Robert Lewis Vickers. Vickers and plaintiff had a collision, and plaintiff secured a judgment against Vickers for $7500. and $18.20 court costs. Plaintiff then instituted the instant case against defendant Insurance Company on such judgment.

Both plaintiff and defendant moved for summary judgment. The trial court granted plaintiff’s motion and entered judgment for plaintiff for $7518.20.

Defendant appeals, contending:

1) The trial court erred in not granting defendant’s motion for summary judgment because Vickers, the insured, breached the provision of the policy to forward the suit papers to the Insurance carrier.
2) The trial court erred in entering summary judgment for plaintiff because Vickers had never been involved in a prior accident, and the filing of an SR 22, did not make the policy absolute under the Texas Safety Responsibility Act.

Defendant’s 1st contention is that it was entitled to show breach of policy contract by Vickers, who did not notify the insurance carrier of the suit.

Vickers was convicted of driving while intoxicated, and his driver’s license was suspended. Thereafter, to obtain a new license Vickers had to make proof of financial responsibility under Section 17, Article IV, Article 6701h, Vernon’s Ann. Tex.St. To do so he made application for automobile liability insurance under the Texas Motor Vehicle Assigned Risk Plan. Such application was assigned to defendant Insurance Company, and on October 23, 1963 it filed Form SR 22 with the Texas Department of Public Safety, certifying it had issued Vickers a motor vehicle liability policy as defined in Section 19 of the Safety Responsibility Act.

Thereafter, Vickers had collision with plaintiff. Plaintiff sued Vickers; Vickers failed to notify and forward the suit papers to defendant Insurance Company as required by the policy, and defendant contends such failure to forward the suit papers relieves it of liability under the policy (under the rule announced in Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95).

Article 6701h V.A.T.S., Sec. 17, Texas Safety Responsibility Law, provides that whenever a license is revoked, such license shall not be renewed until the person “shall immediately give and thereafter maintain proof of financial responsibility * * Section 19 specifies that “Proof of financial responsibility may be furnished by filing with the Department the written certificate of any insurance company * * * certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility.”

And Subsection 3(f) of Section 21 continues :

“1. The liability of the insurance company with respect to the insurance required by this Act shall become absolute whenever injury or damage covered by said motor vehicle liability policy occurs; said policy may not be cancelled or annulled as to such liability by any agreement between the insurance company and the insured after the occurrence of the injury or damage; no statement made by the insured or on his behalf and no violation of said policy shall defeat or void said policy;”

We reject defendant’s contention. Liability policies required by the Safety Responsibility Act are absolute and are not subject to defenses that the insured breached provisions of the policy. See: 7 Am. Jur.2d 299; National Surety Corp. v. Diggs, Tex.Civ.App. (nre) 272 S.W.2d 604; McCarthy v. Ins. Co. of Tex., Tex.Civ.App. (nwh) 271 S.W.2d 836; Barrella v. Stewart, 228 Md. 378, 179 A.2d 886.

Defendant’s 2nd contention is that Vickers had not had a prior accident; but secured the defendant’s policy under the Safety Responsibility Act because he had been convicted of driving while intoxicated, and that under such circumstances the filing of the SR 22 by the Insurance Company did not make liability under the policy absolute.

We reject the contention.

Article 6701h, Section 17, places persons convicted of driving while intoxicated under the Act just as surely as persons who have had a “first accident” are placed under the Act by Section 4.

When a person comes under the Act by virtue of either Section 4 (the having of a first accident) or by virtue of (Section 17), suspension of license for driving while intoxicated, and an Insurance Company issues a policy under the Assigned Risk Plan of the State of Texas, and files with the Highway Department an SR 22, liability under the policy becomes absolute. See: Pan American Ins. Co. v. Claunch, Tex.Civ.App. (nwh) 398 S.W.2d 792.

All defendant’s points and contentions are overruled.

Affirmed.


author: LANGDON, Justice.

text:
    Robert C. ELLIOTT, Appellant, v. Paula ELLIOTT, Appellee.
    No. 16871.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 15, 1967.
    Rehearing Denied Jan. 12, 1968.
    Anderson & Connell, and Henry J. Anderson, Wichita Falls, for appellant.
    Spence, Martin & Richie, and Howard L. Martin, Wichita Falls, for appellee.
   OPINION

LANGDON, Justice.

This is a divorce case. Judgment was entered upon a jury verdict granting appel-lee a divorce, the sum of $2,000.00 attorney’s fees and other relief not pertinent to this appeal.

In its judgment the trial court appointed a trustee acting under its authority to take possession of all the community furniture and household goods awarded to the appellee and to deliver same to her. The trustee was ordered to take possession of a community camping trailer which was in appellant’s possession and all equipment in connection therewith and to sell the same upon the open market at private sale, within a reasonable time for the highest possible price and to pay over to appellee’s attorney the net proceeds derived from such sale in partial payment to be credited by the court upon the judgment rendered against the appellant for attorney’s fees. The appellant was directed by the court to surrender the community furniture, household goods and camping trailer to the trustee wherever such property may be located.

The appellant makes no complaint on appeal as to the granting of the divorce, division of the community property, child custody, visitation, child support or the portion of the judgment awarding attorney’s fees nor is there any complaint as to the amount thereof.

The appellee made her plea for the recovery of her attorney’s fees in the body of her petition and in the prayer thereof. The amount awarded did not exceed the amount prayed for. The judgment awarded the attorney’s fees directly to the attorney for appellee. They were not fixed or ordered as part of the costs of suit nor were they ordered to be collected as a part of such costs.

The appellant’s appeal is from that portion of the judgment which appointed the trustee and ordered the “camping trailer” sold and the proceeds applied on the attorney’s fees. Appellant contends it was error to appoint a trustee in the absence of pleadings seeking such appointment and that no necessity was shown nor in fact existed in support of such appointment.

We affirm.

The record before this court does not contain a statement of facts. The judgment reflects that much of the community property of the parties was in the possession of or under the control of the appellant at the time of trial and was in various locations. Appellant was directed by such judgment to surrender such property to the trustee wherever it might be located for disposition according to the provisions of the judgment.

The trial court in a divorce case is necessarily vested with broad powers and discretion in making a division of the community property and in adjusting the equities between the parties. In effecting such a division the trial court in its discretion may enlist the aid of a trustee, receiver or a commissioner to effectuate the terms and provisions of its judgment. This the court may do in the absence of an application therefor to make certain that the provisions of the judgment are fully complied with.

Since there is no statement of facts the appellant is not in a position to contend that the court abused its discretion in its disposition of the community property, in awarding attorney’s fees or in fixing the amount thereof.

Essentially the appellant is contending that the court did not have the right as a matter of law to appoint a trustee to aid it in fulfilling the requirements of the various provisions of the judgment. We are in disagreement with this contention.

“The allowance of attorneys’ fees to the wife in a divorce suit is largely within the discretion of the court, to be exercised in accordance with the conditions and needs of the parties, and the other surrounding circumstances of each case, in making an equitable division of the estate between the parties. The discretion of the trial court is wide, and a clear abuse of discretion must appear before the trial court’s judgment will be disturbed on appeal.” 20 Tex.Jur.2d, p. 626, § 303, and authorities cited.

“Under proper circumstances both the community and the husband’s separate property are liable for the wife’s attorneys’ fees, and the fees may be paid out of the community estate, though it appears that they should be charged to the husband’s interest in the community estate, and not against the community as a whole. A husband may be required to pay the wife’s attorneys’ fees from his interest therein, though this may result in giving him a smaller share of the community.” 20 Tex.Jur.2d, p. 634, § 309, and authorities cited.

Article 4638 of the Vernon’s Ann. Revised Civil Statutes of the State of Texas provides: “The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. * * *»

“A trustee may be appointed to effect the partition. And, in order to carry out a decree for partition, the court may order the husband to turn over community property in his possession to the trustee. The order may be enforced against the husband by contempt proceedings.” 20 Tex.Jur.2d, p. 562, § 226, and authorities cited.

“The appointment of a receiver rests largely in the discretion of the trial court, and its discretion, under RS art 4636, in this respect, is very broad. In fact, where the court has full knowledge concerning the parties and their property, it may appoint a receiver, even without any application therefor, and without notice or hearing.” 20 Tex.Jur.2d, p. 567, § 234, and authorities cited.

Since the judgment reflects that the court did not fix a lien upon any property we see no necessity in discussing the point relating thereto. All points of error are overruled and the judgment of the trial court is in all things affirmed.

Affirmed.


text:
    Col. C. R. TIPS et al., Appellants, v. Mary Jane YANCEY et al., Appellees.
    No. 16993.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 1, 1967.
    Rehearing Denied Dec. 29, 1967.
    William C. Odeneal, Jr., of Odeneal & Odeneal, Dallas, for appellants.
    James J. Hartnett, of Turner, Atwood, Meer & Francis, Dallas, for appellees.
   BATEMAN, Justice.

This is a will contest in which the principal question to be determined is whether the joint will of David Robert Smith and his wife, Johnnie Mayes Morris Smith, was contractual and mutual and therefore irrevocable by the survivor. The trial court, on appeal from the probate court, held that it was and refused to admit the later, separate will of the survivor to probate.

David Robert Smith and his wife, Johnnie Mayes Morris Smith, executed a joint will dated May 25, 1963, with the formalities and solemnities necessary to make it a valid will. Omitting the signatures and certificate of the witnesses, the said will reads:

“THE STATE OF TEXAS \ KNOW ALL MEN BY COUNTY OF DALLAS J THESE PRESENTS:
“1. That we, DAVID ROBERT SMITH and JOHNNIE MAYES MORRIS SMITH, HUSBAND and WIFE, whose legal residence is Dallas, Dallas County, Texas, both being of sound and disposing mind and memory, do make, publish, and declare this to be our LAST WILL and TESTAMENT, each and both of us hereby revoking all wills by each and both of us heretofore made.
“2. We each will and leave to the other all property, real and personal, of every kind and description, that we may die seized and possessed, without restriction or limitation and in fee simple; provided, however, that we should die in a common accident or both die as the result of injuries received in a common accident then and in that event, it is our mutual desire and will that the sum of ($1,000.00) ONE THOUSAND DOLLARS shall go to George A. Smith of 4091 Grand (Creed) Ave, Los Angeles, California, brother of David R. Smith; also, that the sum of ONE DOLLAR and no more to Mrs. Gladys Chandler, wife of Russell Chandler of San Diego, Cal; also, the sum of ONE DOLLAR and no more to Frank Hubert Morris of Chicago, Illinois, brother of Johnnie Mayes Morris Smith.
“3. Should we both meet death as described in Paragraph Two of this Will, it is our will and mutual desire, that MRS. MARY JANE YANCY, (MRS TOM YANCY) now residing at 2817 S. Poplar St., Casper, Wyoming, or at 3112 Birmingham, Tulsa Oklahoma, shall, in this event, become EXECUTRIX and TRUSTEE of our ESTATE, from whom no bond shall be required. It is our mutual will and desire, that after the bequests are paid as per Paragraph Two of this Will, ALL of the Rest and Residue of our Estate shall go to the EXECUTRIX and TRUSTEE of Our Estate, MARY JANE YANCY, AND TO HER DAUGHTER, CARLA YANCY, in such portion or manner as the Trustee may deem proper or wise at the time.
“4. We each constitute and appoint the other as Survivor to be independent Executor or Executrix, as the case may be, of this our LAST WILL and TESTAMENT, and we each direct that no bond be required of the Survivor of us in such capacity. We also, each and both, direct that no action be had in any court relative to the administration of our respective estates, other than the probating of this, the WILL of the one of us that shall die first.
“5. At the eventual death of the Survivor, as above stated, ALL PROPERTY, real and personal, shall go to MARY JANE YANCY, our TRUSTEE and EXECUTRIX, as per paragraph three of this Will.”

Thereafter the wife died and the husband filed the said joint will for probate and qualified as independent executor thereunder. He then made a new and separate will dated October 16, 1965, in which he simply provided that all of his just debts be paid and then that all of his property go to his nephew, Paul Smith, and appointing the appellant C. R. Tips as independent executor without bond. On the same date he made a codicil to that will leaving certain personal property to the appellee Mary Jane Yancey, describing her as a relative of his deceased wife. David Robert Smith died on November 3, 1965. Colonel Tips filed the will of October 16, 1965 for probate, and Mrs. Yan-cey filed the joint will of May 25, 1963 for probate. Each contested the will offered by the other, and when the cases reached the district court on appeal they were consolidated, and both Tips and Mrs. Yancey filed motions for summary judgment pursuant to Rule 166-A, Vernon’s Texas Rules of Civil Procedure. The district judge denied Tips’ motion and granted that of Mrs. Yancey, specifically finding in the judgment “that the Will executed on the 23rd day of May, 1963, by Johnnie Mayes Morris Smith and David R. Smith is a joint and mutual will and binding upon the Estate of David R. Smith, Deceased, and his representatives and upon all other persons mentioned in or benefited by the said joint and mutual will.” The order admits the joint will to probate, denies probate of the later will, and appoints Mrs. Yancey as executrix.

Colonel Tips and Paul Smith appeal, and under their first point of error contend that the court erred in holding the joint will to be contractual and admitting the same to probate as the last will of David R. Smith.

A litigant moving for summary judgment pursuant to Rule 166-A, T.R.C.P., assumes the burden of proving the absence of any genuine issue as to any material fact, and all doubts as to the existence of a genuine issue as to a material fact must be resolved against him. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). More-over, the evidence must be viewed in the light most favorable to the party opposing the motion. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.1965).

No proof was offered by either party in support of either of the motions for summary judgment. There are no depositions or requests for admissions in the record before us, and no affidavits are attached to either motion for summary judgment. Both motions refer to the pleadings and all of the papers filed in the probate court, but these offer no proof on the question now under consideration except the two wills in question. Therefore, in determining whether the joint will is so contractual and mutual as to be binding upon the estate of the survivor and, therefore, irrevocable, we must look solely to the terms and provisions of that will.

Appellants point out that the only portion of the joint will which attempts to make a disposition of the property of the “survivor” is contained in Paragraph 5, reading “At the eventual death of the Survivor, as above stated, ALL PROPERTY, real and personal, shall go to MARY JANE YANCY, our TRUSTEE and EXECUTRIX, as per paragraph three of this Will.” They argue that the words “as above stated,” must necessarily refer to the provisions in Paragraph 2 relating to death in or as the result of a common accident, and that, therefore, there is no provision in the will for disposition of the property of the testators except (1) as to the first of them to die and (2) in the event they both die in or as a result of a common accident. They also point to the language in Paragraph 2 of the joint will, wherein each of the testators leaves to the survivor all property, of every kind and description, “without restriction or limitation and in fee simple,” and that the only qualification to such outright gift is the proviso with respect to the death of both testators in a common accident.

Appellants contend, therefore, that the joint will shows on its face that it was not based upon a contract to make a joint and mutual will, but that it was obviously contemplated that the survivor, not dying in or as the result of a common accident, would have the right and be expected to make a separate will after the death of his or her spouse, as the case might be.

Appellees argue, on the other hand, that their use of the words we, our, and our mutual will and desire, shows that the testators were attempting to make “a comprehensive plan for disposing of the whole estate of either or both,” as in Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588, 593 (1954); Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 168, 169 A.L.R. 1 (1946); Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876, 878 (1948); Wilke v. Thomas, 295 S.W.2d 283 (Tex.Civ.App., Eastland 1956, writ ref’d n. r. e.); Odell v. Odell, 306 S.W.2d 914, 917 (Tex.Civ.App., Fort Worth 1957, writ ref’d n. r. e.); and Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621, 627 (1957).

Appellees reply to appellants’ argument, that the provisions of Paragraph 5 of the will are bound to relate to the common accident contingency set forth in Paragraphs 2 and 3, by pointing out that Paragraphs 2 and 3 completely cover the common accident contingency and the gifts made in contemplation thereof, and that there would be no point in a further provision, under a separate paragraph number, that would be only repetitious. They also argue that the provisions of Paragraph 5 could hardly relate to the common accident contingency because if both died in a common accident one would not “survive” the other and would not “eventually” die after the other.

Appellees reply to appellants’ argument concerning the use of the phrase “as above stated” by pointing out that it could hardly qualify the preceding phrase, “At the eventual death of the Survivor,” becaüse there is nothing elsewhere in the will relating to the death of a “survivor” or any provision as to disposition of property after the “survivor” has died; and that it is more logical to say that the phrase “as above stated” qualifies the provision following it, and that the phrases “as. above stated” and “as per paragraph three” should be held to mean “in accordance with and under the same trust provisions as those above set out in paragraph three.”

After careful consideration of these contentions, and resolving all doubts against the movant for summary judgment, and viewing the evidence in the light most favorable to the other party, we have concluded that the will as a whole is ambiguous and that the terms thereof, standing alone and unaided by any other evidence, do not establish as a matter of law that the joint will was made pursuant to a contract that it would constitute a final disposition of the estates of both spouses and binding upon the estate of the survivor. Appellants’ first point of error is sustained.

By their second point of error the appellants say the court erred in appointing Mrs. Yancey as executrix of the estate of David Robert Smith because her appointment under the will was conditional upon certain facts which did not occur, i. e., the will appointed her as executrix only in the event both Mr. and Mrs. Smith died in, or from injuries sustained in, a common accident, and that they did not so die.

It would be improper for us to pass upon this point. If appellants prevail at the trial of the case, presumably the court will admit to probate the separate will of Mr. Smith, in which Colonel Tips, not Mrs. Yancey, is named as executor. If, on the other hand, appellees prevail, it will then be the duty of the trial court to determine whether the language used in Paragraph 5 of the joint will may properly be interpreted to include the appointment of Mrs. Yancey as executrix of Mr. Smith’s estate.

Because of the error of the trial court in rendering summary judgment, we reverse the judgment and remand the case for trial.

Reversed and remanded.


author: TIREY, Justice.

text:
    NATIONAL UNION FIRE INSURANCE COMPANY, Appellant, v. AUSTIN BUILDING COMPANY, Appellee.
    No. 4678.
    Court of Civil Appeals of Texas. Waco.
    Dec. 21, 1967.
    Rehearing Denied Jan. 11, 1968.
    Thompson, Coe, Cousins & Irons, Larry L. Gollaher, Dallas, for appellant.
    Johnson, Guthrie, White & Stanfield, Dallas, for appellee.
   OPINION

TIREY, Justice.

Austin Building Company brought the action against the National Union Fire Insurance Company upon a Kansas builders’ risk insurance policy. This is a second appeal. On the first trial the court entered a take-nothing judgment against the Austin Building Company and on appeal to the Dallas Court the cause was reversed and remanded. See 403 S.W.2d 499, n. r. e. A mandate was issued which stated that the judgment of the court below was reversed and the cause remanded for further proceedings in accordance with the opinion of the Court of Civil Appeals.

Six days after the mandate was returned to the Trial Court Austin filed motion for an interlocutory summary judgment on liability. This motion was grounded on the pleadings and statement of facts developed at the previous trial, which had been certified to as correct by the official court reporter and approved by both parties as correct, and is on file in this cause, and the original documentary evidence incorporated in and made a part of the statement of facts, and alleged that these instruments showed that except as to the amount of damages there was no genuine issue as to any material fact; the motion further alleged that the findings of the Trial Court and the Court of Civil Appeals showed all defenses raised by the insurance company were questions of law and that all such legal questions had been decided adversely to the defendant, save and except the amount of damages. The insurance company filed its second amended answer after the foregoing motion was filed and alleged that there were new facts to be developed and plead specifically that the laws of the State of Kansas were applicable to the situation here and on that ground asked for judgment in its favor. It also filed a response to Austin’s motion for interlocutory summary judgment. This response was not sworn to. In this response it entered a general denial to the motion for its summary judgment and stated that the laws of the State of Kansas were applicable to this cause and not the laws of the State of Texas. Thereafter the parties stipulated the amount of damages in the event it should be determined that there was liability as against the insurance company. The amount stipulated was $8,075.00 with interest at 6% per annum from December 3, 1963 to date of judgment if rendered in favor of plaintiff. Thereafter the court proceeded to trial and entered judgment according to the stipulation in favor of Austin Building Company.

Appellant has grounded its appeal on two points. One is that the court “erred in rendering the interlocutory summary judgment on liability, and in confirming same in the final judgment, because the copy of the statement of facts developed at the first trial was not competent summary judgment evidence.”

We sustain Point 1 on the authority of Richards v. Allen, 402 S.W.2d 158, Sup.Ct., and Rule 166-A, par. (e) of Texas Rules of Civil Procedure. Points 4 to 6 of the opinion clearly state what testimony is admissible on a motion for summary judgment and we need not re-state it. It is clear, comprehensive and controlling. Since the Dallas Court held that the cause should be reversed and remanded and the Supreme Court denied both applicants’ motion's for rehearing (n. r. e.), and since there was a general remand of the cause to the trial court, we are of the view that the trial court did not have the authority to grant an interlocutory motion for summary judgment under the undisputed factual situation here. Further reference to the opinion of the Court of Civil Appeals on page 503 of 403 S.W.2d clearly states that it was of the view that there were genuine issues of fact in this cause. We feel that further comment here is unnecessary and Reverse and Remand the judgment of the trial court.

We sustain Point 2.

Reversed and remanded.