author: WALKER, Justice.

text:
    Myrtle MESSER et al., Petitioners, v. Esther JOHNSON, Respondent.
    No. B-321.
    Supreme Court of Texas.
    Jan. 10, 1968.

      Allen & Allen, Perryton, Gibson, Ochs-ner, Harlan, Kinney & Morris, J. Hadley Edgar, Jr., Amarillo, for petitioners.
    Linn & Helms, James P. Linn and Richard N. Countiss, Spearman, Gene E. Steed, Perryton, for respondent.
   WALKER, Justice.

Real estate was conveyed to a married woman. Her husband joined in the deed as one of the grantors, and the instrument declared that the land was conveyed to the grantee as her separate estate and to her sole and separate use. The question to be decided is whether parol evidence may be received to show a resulting trust in favor of the community estate. We reaffirm the rule that it may not.

John E. Johnson and Pearl Johnson were married in 1930. The land in question was conveyed to the latter by H. T. Smith on June 9, 1943. John E. Johnson, who previously owned no interest in the property, is named in the deed as one of the grantors. He and H. T. Smith duly executed and acknowledged the instrument on the same day, and it was promptly filed for record. The deed recites a consideration of $12,480.00 paid in cash and expressly conveys the property to Pearl Johnson as “her sole and separate estate, and to her sole and separate use.” This recital appears in the granting clause, the habendum clause and the warranty clause, but the deed does not state that the consideration was paid by the grantee out of her separate property.

Pearl Johnson died testate in 1961. Under the terms of her will, John E. Johnson was named independent executor without bond, was bequeathed all of her personal property, and was given a life estate in all of her real estate with remainder to Myrtle Messer et al, who are defendants in the present suit. Johnson was also given the power “to sell or mortgage any such portion of my real estate * * * that may be necessary for his comfortable support.”

Johnson inventoried the land in the probate proceedings as community property. About three years later he instituted the present suit to establish a resulting trust in favor of the community and to obtain a construction of Pearl Johnson’s will. After the suit was filed but before it was tried, he conveyed the land without warranty to his present wife, Esther Johnson, who was then substituted as plaintiff.

According to the evidence introduced at the trial, Johnson arranged for the purchase of the land and paid the $12,480.00 consideration out of community funds. He did not intend to give the property to Pearl but had it deeded to her because he was afraid of his son by a former marriage. He placed the title in her name as a matter of convenience to avoid any trouble with the son and to insure that neither the son nor anyone claiming through him could inherit the property in the event of Johnson’s death. It also appears that the land was managed, used and held just as though it were community property.

Defendants objected to all testimony of this nature on the ground that it violated the parol evidence rule. Their objections were overruled and the case was submitted to the jury, which found: (1) that at the time of the conveyance, John E. and Pearl Johnson intended that the land would be their community property; and (2) that the title was conveyed to Pearl in trust for the use and benefit of herself and John. Judgment was rendered on the verdict decreeing that plaintiff owns an undivided one-half interest in the land in fee simple and an estate measured by the life of John in the other undivided one-half interest. The Court of Civil Appeals affirmed. 415 S.W.2d 276.

We assume without deciding that the issues submitted to the jury are raised by the extrinsic evidence introduced. Plaintiff says that the action of the trial court in admitting such evidence and basing its judgment thereon is supported by cases such as McCutchen v. Purinton, 84 Tex. 603, 19 S.W. 710. There, as here, the deed was from a third party to the wife. The instrument recited that the consideration was paid out of her separate estate and purported to convey the land to her as her separate property. Unlike the present case, however, the husband did not join in the deed and there is nothing to suggest that he participated in the transaction. It was held that the recitals in the deed, when uncon-tradicted and unexplained, overcame the presumption that the land was community property. The opinion further states that:

“If such recitals are untrue, and the payment of the consideration was in fact made with community funds, the evidence thereof would be admissible in a proper case to establish a resulting trust in favor of the community estate, as in other cases where the title is conveyed to one party, and the purchase money is paid by another.”

The rule is otherwise where the deed to the wife is from the husband or the latter participates in the transaction to such an extent that he may fairly he regarded as a party to the instrument. In Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825, the property had originally been conveyed to the wife, and the consideration was paid in part with funds belonging to the community estate, in part with the husband’s separate funds and in part out of the wife’s separate estate. Upon the representation that such a step was necessary to obtain a loan, the wife joined her husband in deeding the land to a third party, who then conveyed it to the husband. No loan was obtained, and the wife demanded that the property be reconveyed to her. The husband executed and delivered to her a deed which recited a consideration of $500.00 paid by the grantee “out of her separate funds, and for her separate use and benefit.” The husband later attempted to recover an interest in the land by proving that his deed to the wife was made to keep peace in the family and that he did not intend to convey his interest to the grantee as her separate property. It was held that “without proof of fraud or mistake in the insertion of the recitals in the deed, parol evidence was not admissible to show that the maker of it did not intend to convey the property to his wife as her separate property, and this for the reason that the deed on its face clearly expressed such intent.”

In McKivett v. McKivett, 123 Tex. 298, 70 S.W.2d 694, community realty was conveyed by a husband to his wife as her separate property. After the husband’s death, his heirs sued to recover an interest in the property on the theory that his conveyance was executed pursuant to a prior agreement between the husband and wife that she would hold the title in trust for the community estate. The deed recited a contractual consideration, but the effect of this recital is not discussed in the opinion. In holding that extrinsic evidence was not admissible to show that the parties intended for the grantee to hold the property in trust, the Court said :

“The evidence offered in this case is of such character as to render the deed ineffective. It would prove that the beneficial title did not rest in the wife for her separate use, as the deed declared, but that it remained in the community. Such evidence would contradict the very statements in the deeds which the court held in Kahn v. Kahn to belong to that class of particular and contractual recitals which the parties may not deny. The deeds in express terms declare the particular purpose or use for which the property is conveyed; that is, that it shall belong separately to the wife. Parol evidence should not be admitted to prove that it was conveyed for a different purpose or use.”

It has also been held that an express or resulting trust in favor of the community may not be established by extrinsic evidence where property is conveyed by a third party to the wife as her separate estate and the husband participates in the transaction to such an extent that he should be regarded as a party to the instrument. Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777; Loeb v. Wilhite, Tex.Civ.App., 224 S.W.2d 343 (wr. ref. n. r. e.). The opinions in Lindsay and Loeb emphasize the recitals of contractual consideration in the deed or contract of purchase there involved. As pointed out in Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184, 189, however, the real basis for the application of the parol evidence rule in such cases is the stipulation in the deed that the land was conveyed to the grantee as her separate property, because the same constitutes a declaration that the grantee is to take the property for her own benefit.

It is clear then that extrinsic evidence was improperly admitted in the present case unless the line of decisions represented by Kahn, McKivett, Lindsay and Loeb is to be' overruled. We are urged by an amicus curiae brief to relax the parol evidence rule here because there are situations in which the spouses will find it desirable to create an appearance of separate ownership while intending that the wife shall hold title in trust for the community estate. If the alleged oral agreement is one that might normally be made by the parties under the circumstances, it is argued, evidence thereof should he admitted and the trier of fact allowed to determine whether the recital of separate ownership was intended to be colorable only. In the event it was so intended, the argument continues, the oral agreement is necessarily “collateral” to the deed, because the parties could not have meant for the latter to express their entire agreement concerning ownership. See Fritz, Marital Property— Effects of Recitals and Credit Purchases, 41 Tex.L.Rev. 1, 33; McCormick on Evidence § 216.

The argument is appealing, because there are undoubtedly cases in which the parol evidence rule operates to defeat the true intention of the parties. On the other hand it is entirely proper to deny legal effect to prior or contemporaneous understandings when the parties intend for the written memorial to be the sole expression of their final agreement. The question often arises then as to whether only part of the transaction has been embodied in the writing and another part left in some other form. According to Professor Wigmore this depends wholly upon the intention of the parties, which must be determined from their conduct and language and the surrounding circumstances. In deciding upon such intent, however, “the chief and most satisfactory index for the judge is found in the circumstance whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing.” IX Wigmore on Evidence, 3rd ed. 1940, § 2430.

In this instance the deed declares in several places that the property was conveyed to the grantee as her separate property and to her sole and separate use. The ordinary and accepted meaning of these terms is that the grantee should take and hold the land for her own benefit. It also appears that John E. Johnson went out of his way to sign the deed when there was no reason for his doing so except to evidence an intention to make a gift to his wife. It is our opinion that in these circumstances the husband should not be heard to say that he did not intend to make his wife the beneficial owner of the land as the deed declared. We adhere, therefore, to the general rule that where an inter vivos written transfer of property stipulates that the transferee is to take the property for his own benefit, extrinsic evidence is not admissible, in the absence of equitable grounds for reformation or rescission, to show that he was intended to hold the property in trust. See Restatement, Second, Trusts § 38; IX Wigmore on Evidence, 3rd ed. 1940, § 2437; I Bogert on Trusts, 2d ed. 1965, § 51. There is no allegation or evidence here of fraud, duress or mistake, and we hold that Pearl Johnson was the legal and equitable owner of the land as her separate property at the time of her death.

The will of Pearl Johnson empowered John E. Johnson to sell or mortgage any portion of her real estate that might be necessary for his comfortable support. This did not authorize him to defeat the interests of the remaindermen by making a gift of the land. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1. It is undisputed that his conveyance to Esther Johnson, plaintiff, was made as a gift and did not constitute a sale or mortgage. The deed thus conveyed only the life estate of John E. Johnson in the land.

Defendants say that the judgment in this case should declare that by virtue of his sworn disclaimer, John E. Johnson is now judicially estopped from exercising the power to sell or mortgage vested in him by Pearl Johnson’s will. Since a declaratory judgment on that issue was not sought in the trial court, it cannot be obtained here. Defendants did, however, have a cross-action to remove cloud from title, and the judgment should include a determination that the property was the separate estate of Pearl Johnson at the time of her death and, in view of the disclaimer, an adjudication that John E. Johnson now has no right, title or interest therein.

The record contains a number of stipulations concerning several oil and gas leases held by Anadarko Production Company and certain overriding royalty interests owned by Sam L. Hendrix and V. Ross Brown. We are unable to determine whether such leases and royalty interests are still valid and outstanding. The judgment in this case should recognize and preserve the same to the extent that they are valid and subsisting and remove cloud from title with respect to such as may have terminated. The judgments of the courts below are accordingly reversed and the cause is remanded to the district court with instructions to determine the status of the above mentioned oil and gas leases and overriding royalty interests and then render judgment not inconsistent with this opinion. •


source: Caselaw Access Project

author: GRIFFIN, Justice.

license: Public Domain

text:
    Cleo G. GRACEY, Petitioner, v. Arline B. WEST, Individually, etc., Respondent.
    No. B-267.
    Supreme Court of Texas.
    Jan. 10, 1968.
    Rehearing Denied Feb. 7, 1968.

      Reynolds, White, Allen & Cook, Stanley B. Binion and William A.- Paddock, Houston, for petitioner.
    Knight, Prappas, Rowland & Caldwell, W. J. Knight, Houston, for respondent.
   GRIFFIN, Justice.

This is an appeal from a summary judgment rendered in favor of petitioner, Gracey, by the judge of the 55th District Court in a bill of review action brought by respondent, Arline B. West, to set aside a judgment dismissing for want of prosecution a suit brought by her husband, M. A. Bouknight, on promissory notes signed by Gracey and held by Bouknight d/b/a State Securities Company. On appeal the Court of Civil Appeals reversed the trial court’s judgment and remanded the cause for a trial on the merits. 413 S.W.2d 791. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

About February 1, 1960, Bouknight filed his suit against Gracey, and citation was duly issued and served. Gracey filed an answer within the period provided by law. On July 4, 1960, Bouknight died. On August 16, 1960, his will was duly probated and respondent, then Arline B. Bouknight, the sole devisee and legatee under this will, qualified as executrix of his estate.

No suggestion of death of Mr. Bouknight was filed by either party to the original suit, as is provided under Rule 151, Texas Rules of Civil Procedure, and no further proceedings were had in the suit on the promissory notes until a few weeks prior to June 24, 1963.

At that time the Clerk of the 55th Judicial District Court, under the direction of the judge, prepared a “dismissal docket” which included the above mentioned suit. The docket stated, over the signature of the judge, that the cases listed thereon would be dismissed for want of prosecution on the 24th day of June unless written motion stating good reasons why same should remain on the docket was filed before June 17, 1963. The deputy clerk for said court filed an affidavit herein, and as a part of the summary judgment proceedings, stating that in accordance with the court’s practice and procedure a copy of said dismissal docket was posted in the District Clerk’s main office on the bulletin board; in the 55th Judicial District Courtroom; in the jury assembly room of the Harris County Courthouse; and, in addition, a copy of said dismissal docket was given to the Daily Court Review for publication.

In addition to the posting of said dismissal docket in the three described locations in the Harris County District Courthouse, a post card notice was prepared by the Clerk of the 55th Judicial District Court and mailed to all attorneys of record in each case to be dismissed. The post card contained the style and number of each case and stated that it would be dismissed for want of prosecution on June 24, 1963. In her affidavit opposing the granting of the summary judgment respondent says her attorney told her he did not receive the post card notice. The attorney who represented Mr. Bouknight has no affidavit or deposition on file in this proceeding. Respondent does not contend that the dismissal docket was not posted at the various locations described in the Harris County Courthouse. The attorney for Gracey received the post card notice that the cause would be dismissed.

No written motion was filed by the respondent stating good reasons why said case should remain on the docket nor did respondent’s previous attorney of record appear at the time said dismissal docket was called on June 24, 1963, and as a result said cause was dismissed by the judge for want of prosecution. On July 5, 1963, the court signed an order reciting that: “On this the 24th day of June, 1963, the above styled and numbered non-jury cases are hereby dismissed for want of prosecution. Costs herein are taxed against plaintiff, for which let execution issue.”

On May 15, 1965, Mrs. Bouknight (now Mrs. West), as executrix, filed her bill of review, alleging that she had no knowledge of the court dismissal of the original suit on July 5, 1963, until on or about April 22, 1965, and that she filed this suit as soon as possible thereafter. In her bill of review she alleged that by virtue of the death of the original plaintiff and no suggestion of this death being made, the trial court had no jurisdiction to dismiss the suit. On this contention the respondent in her answer to the application for writ of error states that the order of dismissal was not void but voidable, citing Giddings v. Steele, 28 Tex. 732, 733 (1863); and Milam County v. Robertson, 47 Tex. 222 (1877). This is a correct statement of the law. See also French v. Brown, Tex.Sup., not officially reported, Tex.Sup.Ct. Journal, Vol. 11, p. 132, December 16,1967.

The judgment of dismissal was not beyond the power of the trial court to enter, and more than six months having elapsed, can only be attacked by a bill of review. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961); Rule 329b, subd. 5, Texas Rules of Civil Procedure.

This Court in the case of Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950), discussed the rules of law applicable to bills of review and set out three conditions that must be alleged and proven in cases similar to the one at bar by the losing party before she can successfully invoke a bill of review to set aside a final judgment against him. These three requisites are: (1) a meritorious cause of action must be alleged to support the motion to reinstate the case, (2) which he was prevented from making by the fraud, accident, or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. These rules have been recognized as stating a correct rule of law by many cases since the discussion in the Hagedorn case. Hanks v. Rosser, Tex.Sup., 378 S.W.2d 31, 34 (1964). The Rosser case modified the rule to the extent that where an officer of the court gives wrong information which prevents the filing of a motion for new trial by the losing party, the movant in a bill of review is excused from complying with requirement (2) above. Otherwise, the rule of Hagedorn was approved.

To show that she was not negligent respondent alleged in her sworn bill of review that she knew of the fact that her husband had the suit pending at the time of his death and that soon after the probate of her husband’s will and her qualification as executrix she began inquiring of her attorney (he had filed the suit for her husband) about the case and trying to get him to have the case set for trial and dispose of the suit. She alleged that he would tell her he was seeking to have the court dispose of the case and he would see that this was done. In 1963 when the case was dismissed, being approximately three years after her husband’s death and her qualification as executrix, she had received no notice of the court having put this case on the dismissal docket and did not know it had been dismissed for want of prosecution until late April, 1965. She also alleged that her attorney told her he had received no notice that the case was on the dismissal docket and that it would be dismissed unless the plaintiff showed good cause why it should not be dismissed. What she alleges that her attorney told her about lack of notice is hearsay and not competent proof in a summary judgment proceeding. Box v. Bates, 162 Tex. 184 (1961), 346 S.W.2d 317; Rule 166-A, Texas Rules of Civil Procedure. In her affidavit she stated that after the dismissal she continued to consult with her attorney about getting the suit disposed of, and on one occasion he told her the case would be heard soon and asked her to get together certain needed evidence, which she did. She alleged that in April, 1965, she went to the clerk’s office and there inquired as to the status of the suit, and for the first time she learned' of the dismissal of the suit.

The above summarized statement of her pleadings shows that the cause was neglected by her attorney for about three years prior to its dismissal and for an additional two years thereafter. There is no legal excuse or justification set out in her pleadings or in the summary judgment proof. • Respondent seeks to excuse this failure to dispose of the case on the ground that she was not negligent, but her attorney was the negligent one, and in such negligence he was failing to carry out her specific instructions to get a trial of the case.

In the case of Dow Chemical Company v. Benton, 163 Tex. 477, 357 S.W.2d 565, 567-568 (1962), in speaking of attorney-client relationship, we said:

“In our opinion, all of these suggested situations [examples theretofore set out] are analogous to the present case, and all of the questions posed above must be answered in the negative. The reason is that as long as the attorney-client relationship endures, with its corresponding legal effect of principal and agent, the acts of one must necessarily bind the other as a general rule.”

See also Tex. Emp. Ins. Ass’n v. Wermske, 162 Tex. 540, 349 S.W.2d 90 (1961) and cases^therein cited.

Respondent cites the cases of Armstrong v. Nixon, 16 Tex. 611 (1895); Shafer v. Smith (Tex.Civ.App., 1924), 262 S.W. 199, writ refused; and Hermann v. Higgins Oil & Fuel Company (Tex.Civ.App., 1924), 260 S.W. 1094, writ refused, as authority for her assertion that the trial judge had no authority to dismiss the original suit. These cases are not in point. In each of them the defendants had filed a motion to dismiss the cause for want of prosecution, and this motion had been sustained by the trial court, and the appeal attacked such order.

In our case the defendant filed no plea in abatement or motion to dismiss. The trial judge dismissed the case for want of prosecution on his own initiative. This case was one of many on the dismissal docket that were dismissed for the same reason and at the same time.

Respondent relies upon Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959), as authority that the trial court had no power to dismiss this suit for want of prosecution because the trial judge had not set the case for trial on its merits as required by Rule 330(b). The Freeman case was an appeal to the district court from a judgment of the probate court probating a will. The district court, on motion of the contestants to the probate of the will, had entered a default judgment setting aside the order of the probate court admitting the will to probate and certifying this judgment to the probate court for observance. This was a disposition of the case on its merits, and this Court held such judgment void as violating Rule 330(b), Texas Rules of Civil Procedure. We further held that, “the law of this state does not authorize a defendant to take a default judgment which adjudicates against the plaintiff the merits of his suit.” We also held such a judgment was wholly void.

The judgment of dismissal of the cause for want of prosecution is not a judgment on the merits of the cause. Neither was it a default judgment against the plaintiff nor a bar to a suit upon the notes. Murphy v. Stigall (Tex.Civ.App., 1961), 352 S.W.2d 918, writ refused.

Respondent cites Rules 150 and 151, Texas Rules of Civil Procedure, for authority that the judge of the 55th Judicial District Court had no power to dismiss this suit until a suggestion of death was made to said court and the legal representative of her deceased husband’s estate brought into the suit by a writ of scire facias or by voluntary appearance. Rule 151, in substance, provides that if the plaintiff dies, his heirs or legal representatives may appear and suggest the death of the plaintiff, and the suit shall proceed in his or their names; if the heirs or legal representative of plaintiff’s estate do not appear and suggest his death at the first term of court after the death of the plaintiff, “the clerk upon the application of defendant, his agent or attorney, shall issue a scire facias” to the heirs or legal representative of the estate “requiring him to appear and prosecute such suit.” If the heir or legal representative, being served with the scire facias, fails to appear and prosecute the suit, “the defendant may have the suit discontinued.” Defendant cannot have the suit discontinued until he has had the scire facias issued and served. The rule contains no prohibition against the court dismissing the suit for want of prosecution on its own motion, and after notice to the parties.

The trial court obtained jurisdiction of the parties by the filing of M. A. Bouk-night’s original petition and service of citation on Gracey. Rule 150 specifically provides the death of a party shall not cause the suit to abate.

Respondent seeks to justify her failure to get a trial of the case for the three-year period from the death of her husband until the case was dismissed by the trial court and failure to file her bill of review for an additional two years on the ground that her attorney had “betrayed” her. As support for the position she relies on the following language in the Hagedorn case:

“ * * * Only extrinsic fraud will entitle a complainant to relief because it is a wrongful act committed ‘by the other party to the suit which has prevented the losing party either from knowing about his rights or defenses, or from having a fair opportunity of presenting them upon the trial. Such, for instance, as where he has been misled by his adversary by fraud or deception, did not know of the suit, or was betrayed by his attorney. In other words, fraud which denied him the opportunity to fully litigate upon the trial all the rights or defenses he was entitled to assert.’ ” (Emphasis ours.)

Respondent claims she was prevented from prosecuting her case because of the fraud or wrongful conduct of the defendant’s attorney in his not asking for issuance of a writ of scire facias for the plaintiff’s representative and thus forcing a trial of the case; that this nonaction by defendant’s attorney, coupled with the failure of her attorney to get the case tried and disposed of when she was urging her attorney to dispose of the case, constituted betrayal by her attorney and fraud and wrongful acts by defendant’s attorney.

None of respondent’s allegations in her bill of review constitute a “betrayal” of respondent by her attorney. They only allege negligence by her attorney. There are no allegations in the bill of review or affidavits of any action taken by defendant’s attorney; only of failure to take some affirmative action to assist plaintiff in securing a setting of the case. The record in this cause showing that respondent’s attorney was guilty only of negligence in failing to prosecute the suit brings respondent within the following language of the Hagedorn case that immediately precedes the language relied upon by respondent, to-wit: “Again, Hagedorn cannot prevail because he has not shown that he was prevented from making his defense to the Alexanders’ suit by their fraud or wrongful act.”

Respondent contends whether or not the conduct of her and her attorney constituted negligence was a fact issue and prevented the granting of a summary judgment in this proceeding.

In the case at bar there is no dispute as to the facts regarding the conduct and actions of respondent, her attorney, or of Defendant Gracey’s attorney and only one inference can be drawn therefrom; therefore, whether or not these acts are negligence is a matter of law. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998.

Rule 151 requires defendant to have a scire facias issued bringing in a deceased plaintiff’s representative and his failure to appear before defendant can have the cause discontinued. As was said in the case of Crosby v. Di Palma (Tex.Civ.App., 1911), 141 S.W. 321, writ refused: “Being defendants, no duty rested upon appellees to give attention to the cause with view of forcing a trial, but they could remain entirely passive. Latta v. Wiley (Tex.Civ.App.), 92 S.W. 433, 436.”

In the Wiley case (writ of error refused, 1906), the court said:

“ * * * The plaintiff in a case is the actor — the one who invokes the aid of the law, and puts its machinery in motion to establish a right or redress a grievance ; and upon him necessarily rests the burden of the duty of prosecuting the suit without unnecessary or unreasonable delay. Generally the defendant does not want it prosecuted, nor is it to his interest that it should be. His attitude, as the word ‘defendant’ implies, is one of defense. He is only required to stand and repel the assaults of his adversary. Until assailed by the plaintiff he may remain perfectly passive, and it may be his policy and interest to continue so.”

In the case at bar the defendant may have decided that “time was his best witness” and that so long as the case was not tried, he would suffer no hurt or injury. Whether or not to ask for a discontinuance of the cause was a matter for the defendant to decide. He chose not to make a motion to dismiss the cause, but to await the plaintiff’s efforts to obtain a judgment. This decision he had a perfectly legal right to make, and his failure to ask for a scire facias was not wrongful or fraudulent, but merely protecting the interests of his client as he saw the case. Defendant’s attorney did nothing to mislead the plaintiff-respondent. This being true, respondent’s bill of review fails to measure up to the requirement ■ that plaintiff was prevented from prosecuting her suit by the fraud, accident or wrongful act of the defendant or his attorney, unmixed with any fault or negligence of her own. Her failure to act was solely the result of the conduct of respondent and her attorney.

For the reasons stated herein we reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.


author: MORRISON, Judge.

text:
    Beauford S. FANCHER, Appellant, v. The STATE of Texas, Appellee.
    No. 40851.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1967.
    Rehearing Denied Feb. 7, 1968.
    Reynolds, White, Allen & Cook, by Grant Cook, Houston, for appellant.
    W. C. Lindsey, Dist. Atty., Cimron Campbell, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is the giving of a worthless check, a felony; the punishment, five years, probated.

Appellant relies upon Judge Hawkins opinion in Grayson v. State, 102 Tex.Cr.R. 288, 277 S.W. 1064. The State in its brief has been unable to distinguish the case at bar from Grayson, and since the issues are identical, we will dispose of this case by paraphrasing Judge Hawkins’ words.

The indictment alleged in substance that appellant acquired certain property by giving a check upon First State Bank of Groves, Texas, for the sum of $1185.00. The check in question was signed as follows: “Diamond Enterprises, Inc., Beauford S. Fancher.” The indictment then proceeds as follows: “ * * * and the said Beauford S. Fancher then and there did not have and knew he did not have sufficient funds with said bank to pay said check and all other checks, drafts and orders outstanding upon which funds at the time said check was given and drawn and with no good reason to believe the check, draft and order would be paid upon presentation to the bank upon which said check was drawn, said check was presented to said bank for payment and payment was refused for want of sufficient funds of the said Beauford S. Fancher.”

It will be observed that the check did not authorize the bank on which it was drawn to pay it out of funds to the credit of appellant, but out of those supposed to be to the credit of “Diamond Enterprises, Inc.” Nowhere in the indictment is the allegation made that Diamond Enterprises, Inc., had no funds in the bank, or that appellant knew this when the check was drawn; but alleges that he (appellant) had no funds in the bank, and that payment was refused because of want of sufficient funds of appellant and not because of lack of funds of Diamond Enterprises, Inc.

The indictment was attacked because of the absence of the allegations suggested. That it is vulnerable to such criticism is supported by James v. State, 96 Tex.Cr.R. 308, 257 S.W. 886, and Clark v. State, 102 Tex.Cr.R. 88, 277 S.W. 132, which appear to be directly in point. See also Porter v. State, 158 Tex.Cr.R. 237, 254 S.W.2d 516.

The judgment must be reversed and the prosecution ordered dismissed, and it is so ordered.


author: BELCHER, Commissioner.

text:
    Carl Junior HACKATHORN, Appellant, v. The STATE of Texas, Appellee.
    No. 36935.
    Court of Criminal Appeals of Texas.
    June 24, 1964.
    Rehearing Denied Oct. 21, 1964.
    Certiorari Denied May 24, 1965.
    See 85 S.Ct. 1570.

      Phil Burleson, Dallas, Robert Power, Irving, for appellant.
    Henry Wade, Dist. Atty., William F. Alexander, Frank Watts, A. D. Jim Bowie, Harryette Bercu, Ross Teeter and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, death.

The testimony of the state shows that the appellant killed Bobbie Smith, a woman, by shooting her three times with a pistol above the left ear, the three bullets passing through and lodging in the right side of the brain, and causing her death instantaneously.

The appellant did not testify, but called his mother and a psychiatrist whose testimony supported his defense of insanity.

In rebuttal, the state called two doctors trained and experienced in the practice of psychiatry and four lay witnesses, all of whom expressed the opinion that the appellant was sane.

The jury resolved the issue of insanity against the appellant, and the evidence is sufficient to support the conviction.

It is insisted that the trial court erred in overruling appellant’s motion for a continuance on the ground of refusal of the state to timely and immediately comply with the order of the court of May 2, 1963, made in response to appellant’s motion, directing the state to indorse on the indictment the names of its witnesses.

On May 3, the district attorney was notified of the order to list the state’s witnesses on the indictment, but this was not done until shortly before the voir dire examination of the venire began on May 6. The introduction of evidence on the merits be-gain on May 11.

The statutory provision (Art. 392, C.C.P.) that the names of the witnesses upon whose testimony the indictment is found shall be indorsed thereon has been held directory and not mandatory. 1 Branch 2d 511, Sec. 534; Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393; Newton v. State, 162 Tex.Cr.R. 519, 287 S.W.2d 179. It is undisputed that the appellant killed the deceased. The only issue was that of appellant’s insanity as hereinbefore shown. He supported this defense by the testimony of his mother and a psychiatrist, and in rebuttal the state called two psychiatrists and four lay witnesses. However, there is no showing that the indictment was found on the testimony of the witnesses testifying on the issue of insanity. Hence, no reversible error is shown. Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364.

Error is urged because of the admission of testimony describing the bloody condition of the deceased’s clothes, which were identified by an officer, while testifying, but the clothes were never shown to the jury.

The testimony consisted only of a narration of the facts by the officer as to his removing the deceased’s clothing from her body, and after observing and identifying such clothing on the witness stand, he described their bloody condition. This evidence is distinguished from the rule which prohibits the introduction and actual display of bloody clothing of the deceased when not material to any issue in the case. The admission of the testimony shows no error. Williams v. State, 154 Tex.Cr.R. 138, 225 S.W.2d 836; Hall v. State, 164 Tex.Cr.R. 573, 301 S.W.2d 161.

Appellant contends that the trial court erred in refusing to grant his request, prior to announcing ready for trial, for a copy of the autopsy report and his written statements. He further contends that the court erred in refusing to grant his motion for a continuance on the ground of surprise when it was shown by the state during the trial that an analysis of a blood specimen taken from the deceased after her death showed no trace of alcohol.

To support his contention, the appellant, an indigent, urges that in the preparation of his defense the court’s actions rendered ineffective the services of his court-appointed counsel; that the court’s refusal of the request that the report and statements be produced deprived the psychiatrist of their use in making an accurate diagnosis of appellant’s mental condition; and, further, that such refusals denied him equal protection of the law.

This contention and the foregoing contentions are considered without comment on whether they are properly before the Court for review, due to the gravity of the punishment assessed.

It has been the consistent holding of this Court that counsel for the state is not required to furnish the accused with statements of witnesses, copies of reports, or his written statements, for the purpose of pre-trial inspection. Hence, the denial of the requests was not error. Freeman v. State, 166 Tex.Cr.R. 626, 317 S.W.2d 726.

It is urged that the trial court erred in permitting Dr. Holbrook to testify for the state because of the circumstances under which his observations of the appellant were made. He contends that Dr. Hol-brook realized at the time he interviewed the appellant that he (appellant) had not yet seen his attorneys and would not cooperate after conferring with them, and that Dr. Holbrook did not inform the appellant that he was interviewing him on behalf of the state. A similar contention was considered and overruled in Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612.

The only issue was that of insanity. Dr. Holbrook’s interview and observations of the appellant were not made in violation of any statute, and no objections were made to the admission of his testimony, or request that it be withdrawn from consideration by the jury. Therefore no error is shown.

The judgment is affirmed.

Opinion approved by the Court.


author: ONION, Judge.

text:
    Bobby Wayne GRAHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 40903.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1968.

      Emmett Colvin, Jr. (on appeal only), Mike Barclay, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Emmett and William S. Mason, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Robbery by Assault with Firearms; the punishment, ninety-nine (99) years confinement in the Texas Department of Corrections.

The police lineup procedure used in the identification of the appellant after the alleged robbery and his apprehension is urged as error on the ground that it violated the due process rights of the appellant under the Fourteenth Amendment, United States Constitution.

The trial commenced on December 5, 1966, and sentence was pronounced March 13, 1967.

The State’s brief cites United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and calls our attention to the fact that such decisions have no application to confrontations, lineups, or showups conducted prior to June 12, 1967, as were the ones in the case at bar. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. This is true but it is simply no answer to the contention advanced by appellant.

Appellant’s claim of due process violation is independent of the exclusionary rules announced in Wade and Gilbert, which were fashioned to deter law enforcement authorities from exhibiting an accused to witnesses prior to trial for identification purposes without notice to and in the absence of counsel absent an intelligent waiver by the accused.

Demonstrating the independence of appellant’s contention, it is observed that appellant’s learned counsel, in presenting this ground of error, does not even cite Gilbert and Wade.

In Stovall v. Denno, supra, the Court said:

"But the certainty and frequency with which we can say in the confrontation cases that no injustice occurred differs greatly enough from the cases involving absence of counsel at trial or on appeal to justify treating the situations as different in kind for the purpose of retroactive application, especially in light of the strong countervailing interests outlined below, and because it remains open to all persons to allege and prove, as Stovall attempts to do in this case, that the confrontation resulted in such unfairness that it infringed his right to due process of law. See Palmer v. Peyton, 359 F.2d 199 (CA 4th Cir.1966)” (Emphasis Supplied)
"We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (CA 4th Cir.1966)”

In speaking of the test to be applied in such cases, the Supreme Court in Stovall v. Denno, supra, said: “ * * * a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it * * * See also Crume v. Beto (CA 5th Cir.), 383 F.2d 36.

It is by this rule that we must pass upon appellant’s ground of error.

State’s witnesses, Judith Lynn Sharp, Larry Smith, and Carroll Slavens, all of whom were present during the robbery, made no in court identification of the appellant. Of these, only Judith Lynn Sharp, who was shot during the robbery, related that she had viewed a lineup and had not identified anyone. There was no showing that appellant appeared in such lineup.

State witnesses Bobby Stovall, Larry Howard, and Gilbert J. Orsak, all of whom had adequate opportunity to observe the appellant during the robbery, who apparently unlike the other two participants in the robbery, was hatless and not masked, made in court identification of the appellant. On cross-examination it was revealed that each of these witnesses had viewed several lineups prior to trial (December 5, 1966) and that at one of such lineups each had selected appellant from a lineup of four or five men as one of the participants in the robbery at the Tom Thumb Supermarket No. 28 on May 9, 1966, in Dallas County, Texas. There is no showing that appellant was present in any lineup in which any witness did not identify anyone who participated in the robbery. Further, there is no showing that the law enforcement authorities took any action to suggest to any witness that the appellant in their minds was the guilty party. In fact, Bobby Stovall expressly denied that the police had given him any names or had told him who would appear in the lineups. The record does not reflect that any witness was shown a photograph of appellant or that he was exhibited singly to any witness.

It is true that the witnesses Howard and Orsak were unsure of exactly at which one of the three or four lineups they viewed that they had identified appellant. Further, none of the three witnesses could recall appellant’s position among the four or five men exhibited to them in the lineup or lineups at which he was identified by each of the witnesses, nor whether at the time he wore a hat. These witnesses further evidenced some difficulty in recalling the races or nationalities of the other men who were present in the lineups. This is somewhat similar to the situation in Stovall v. Denno, supra, where none of the witnesses could recall the words used when the accused had been asked to speak at his confrontation with the victim of the crime.

Appellant lays great stress upon the fact that the jury, during their deliberations on guilt or innocence, sent a note to the court asking for information as to procedure used in a police lineup, which the trial court properly refused to answer.

Viewing all the circumstances together, however, and keeping in mind that all three witnesses had adequate opportunity to view appellant at close range during the robbery, we find nothing in the particular record before us to indicate the in court identification of the appellant by these three witnesses was the result of any suggestive influences of the police. We therefore conclude that this appellant has not been deprived of due process. See State v. Hill (Mo.) 419 S.W.2d 46; State v. Batchelor (Mo.) 418 S.W.2d 929; State ex rel. Ford v. Tahash (Minn.1967) 154 N.W. 2d 689. Cf. People v. Ballott (1967) 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103.

Appellant urges additional error on the ground that the trial court erred when he failed to grant a motion for mistrial when the extraneous offense of automobile theft was injected into evidence by the State.

This ground of error is predicated upon Officer Elwonger’s testimony as follows:

“Q. Did you have an occasion, Officer, to do any investigation on a robbery at Tom Thumb Supermarket at 424 Bruton Terrace?
“A. Yes, an investigation pertaining to it.
“Q. All right, and what aspect of this investigation was turned over to you?
“A. The stolen car report.
“Appellant’s Counsel: If the Court please, I’m going to have to object to that.
“The Court: Sustain it.
“Appellant’s Counsel: It would be a conclusion.
“The Court: Sustain it.
“Appellant’s Counsel: We further object on the grounds that it is prejudicial and inflammatory to the extent that we move for a mistrial.
“The Court: Overrule the motion for a mistrial.
“Appellant’s Counsel: Exception.
“Q. Did you have an occasion to go to Murry Auto Sales on South Buckner?
“A. Yes, I did.
“Q. Did you have an occasion to talk with anyone located there at the auto sales ?
“A. Yes, I did.
“Q. Without going into the conversation, Officer, was the automobile later returned to that auto sales company on South Buckner?
“Appellant’s Counsel: I’ll object to that.
“The Court: Sustain it.
“Q. Did you see the automobile later?
“A. No, I had no occasion to see it.
“Q. Did you talk with one or more persons there at the auto company?
“A. One man.
“Q. After you talked with that man, did you continue your investigation of the robbery that had been assigned to you or the aspect of it that had been assigned to you?
“A. Yes sir, the aspect of it.”

Prior to the foregoing the State’s testimony reflects that after the robbers left the supermarket, the scene of the robbery, they drove away in a black 1964 Impala Chevrolet bearing license plate numbers KKH 771, and that shortly thereafter a car of the same description bearing the same license numbers was found abandoned by a police officer a quarter of a mile from the supermarket. It was determined that the automobile was registered to an automobile sales company.

We conclude from the testimony offered and the court’s ruling thereon that no error. is presented.

Appellant contends that the record proof of his two prior convictions at the penalty stage of the proceedings to show his prior criminal record (Article 37.07, Vernon’s Ann.C.C.P.) was hearsay and violated his rights under the Fourteenth Amendment to the Constitution of the United States.

In addition to the fingerprint cards which were admitted without objection, certified copies of the records of the Texas Department of Corrections were admitted into evidence for the purpose of establishing as an historical fact the two prior convictions. This method of proof is authorized by statute and was made in accordance with that approved by this Court. Article 3731a, V.A.C.S.; Broussard v. State, Tex.Cr.App., 363 S.W.2d 143; Jackson v. State, Tex.Cr.App., 402 S.W.2d 742.

Only recently Robertson v. State, Tex.Cr.App., 418 S.W.2d 678 was decided adversely to the ground of error advanced by appellant. We adhere to that ruling.

Further, appellant seeks reversal on the ground the trial court erred in refusing to grant his motion for mistrial when the assistant district attorney, over objection, applied the parole law in his argument to the jury at the penalty stage of the proceedings.

Prior to the argument complained of appellant’s counsel in his argument discussed punishment, deterrent, and rehabilitation. Recognizing that this was not a minimum penalty case and recalling the prior criminal record he recommended to the jury that the 25 year old appellant be confined until he was thirty-three years old, and that eight years would be a proper sentence.

Thereafter the prosecutor argued as follows:

“State’s Counsel: This man has shown by his conduct that he wants to go big time. He moves from burglary up to armed robbery after he has been released from the penitentiary. The course of this robbery and his conduct show you that he is not a fit subject for rehabilitation.
“Mr. Barclay talks about rehabilitation. He tells you that he wants this man to be down there until he is thirty-three years old. That doesn’t mean that he should have a seven-or eight-year sentence. You should give him enough time to where he will have to spend eight years in the penitentiary, which doesn’t—
“Appellant’s Counsel: I’m going to object to that; that’s highly improper.
“State’s Counsel: He brought it up, Your Honor.
“The Court: Wait a minute.
“State’s Counsel: He brought it up, Your Honor.
“Appellant’s Counsel: Then I’ll object to it as being prejudicial.
“The Court: I’ll sustain it.
“State’s Counsel: We have a right to answer him, Your Honor.
“The Court: I have put in my charge there that the jury is not to consider how long it will take for him to serve his sentence under any circumstances. That is a matter for the Board of Pardons and Paroles and the Governor of the State of Texas.
“Appellant’s Counsel: If the Court please, I’ll make an objection to the statement as being prejudicial to the extent that we’re entitled to a mistrial and I so move.
“The Court: Overruled.
“Appellant’s Counsel: Exception.
“State’s Counsel: The Judge has given you your instructions, ladies and gentlemen. The Board of Pardons and Paroles will determine when and if and perhaps never this man will be a fit subject for rehabilitation. Mr. Barclay talks about punishment. You can go on up to as many years as you want to give him as long as you give him enough time down there where you think he’s going to have to stay and at least have a chance to be rehabilitated.”

To this last statement of State’s Counsel there was no objection.

It is a matter of common knowledge that inmates are released on parole from the Texas Department of Corrections, but the jury, in a felony case, in determining the punishment to be assessed, is not authorized to resort to or apply the parole law. Argument urging them to do so is highly improper.

We cannot agree, however, that the argument here complained of “applied” the parole law as urged, and we feel the facts distinguish this case from Hernandez v. State, Tex.Cr.App., 366 S.W.2d 575.

Appellant’s counsel first broached the subject of rehabilitation to the jury. His general objections to the State’s subsequent argument was only that it was improper and prejudicial. Such objections did not mention the parole law. After the objections were sustained appellant did not ask for an instruction to the jury but we note that the trial judge recalled, in the presence of the jury, his written admonishment to the jury on the subject of parole.

Under the circumstances presented, we conclude the refusal of the mistrial did not constitute error.

The judgment is affirmed.


text:
    Allen Frances STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 40911.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1968.
    Paul P. Regnier, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Joseph W. Doucette and Charles E. Bonney, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from a conviction for aggravated assault under the provisions of Article 1147(9), Vernon’s Ann.P.C. At the trial at which appellant, a layman, attempted to represent himself, it appears there was no court reporter used, apparently because of the lack of a request therefor.

From an agreed statement of facts utilized by the parties and authorized by Article 40.09, Sec. 14, V.A.C.C.P., it appears that the State’s only witness, appellant’s wife of ten years, testified that he, for no apparent reason struck her once on the back of her head with part of a rake handle when she was in the yard of their home on November 9, 1966. She was not seriously injured and did not seek medical aid.

While certainly not grounds for a new trial, it is observed that on the hearing therefor appellant’s wife requested the trial court to grant a new trial stating her husband needed hospitalization, not confinement in the county jail.

At the trial the court received and entered as the verdict of the jury the following:

“We, the Jury, find the defendant guilty as charged and assess his punishment at $500 dollars fine.
Ed J. Heinrich, Jr. Foreman.
“We, the Jury, find the defendant guilty as charged and assess his punishment at 1 Yr. days in jail.
Ed J. Heinrich, Jr. Foreman.
“We, the Jury, find the defendant guilty as charged and assess his punishment at a fine of $500 dollars and 1 Yr. days in jail.
Ed. J. Heinrich, Jr. Foreman.”

While the jury utilized three of the four possible verdict forms furnished them, it does not appear that the trial judge retired the jury in an effort to determine their true verdict.

Judgment was entered setting forth all three verdicts received but providing for the recovery of a fine of $500.00 and committing appellant to jail for 1 year and until said fine and the costs were paid. It is from this judgment that this appeal is prosecuted.

Appellant’s attack upon the verdict is bottomed upon the contention that there are three verdicts, each of which assesses a different punishment applicable to the offense charged, and that upon the entry of the judgment the court had no way of knowing which punishment the jury intended to assess. We agree.

The jury was charged in accordance with the provisions of Article 1148, V.A.P.C. That article provides as follows:

“The punishment for an aggravated assault or battery shall be a fine not less than Twenty-five Dollars ($25) nor more than One Thousand Dollars ($1,000), or imprisonment in jail not less than one (1) month nor moire than two (2) years, or both such fine and imprisonment.” (Emphasis Supplied)

The State cites and relies upon Dotson v. State, 171 Tex.Cr.R. 62, 344 S.W.2d 879. Dotson is distinguishable from the case at bar for one of the “verdicts” received in Dotson provided for a 60 day jail term without a fine which was not a punishment provided by law for a violation of Sec. 34 of Article 6687b, V.A.C.S. (operating a motor vehicle upon a public highway while operator’s license suspended). In the case at bar all three of the verdicts received assess a punishment applicable to the offense charged. In arriving at our conclusion we are not unmindful of the rule that if the intention of the jury can be arrived at by a fair interpretation of their written findings, then such interpretation should be given effect.

In view of our disposition of this case, it is deemed unnecessary to discuss the other grounds of error assigned or the apparent uncertainty as to the length of confinement in jail contained in two of the verdicts.

For the error of the court in receiving three verdicts assessing different punishments, the judgment is reversed and the cause remanded.


text:
    Milton R. COX, Appellant, v. The STATE of Texas, Appellee.
    No. 40938.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1968.

      Gerald G. Moore, Brownwood, for appellant.
    Gordon Griffin, Jr., Dist. Atty., Brown-wood, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is attempted burglary with five prior convictions alleged for enhancement; the punishment, life.

Appellant’s sole ground of error is that reversible error was committed when in violatiqn of Article 36.01(1), Vernon’s Ann.C.C.P., the entire indictment, alleging the instant offenses of burglary and attempted burglary with five prior convictions alleged for enhancement, was read to the jury by the District Attorney at the commencement of the hearing on the issue of guilt or innocence.

No federal constitutional question is presented, Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, though it should be remembered that Spencer was tried prior to the effective date of the 1965 Code of Criminal Procedure and the revision of old Article 642 (now 36.01), V.A.C.C.P.

The only question presented is whether in absence of an objection, a violation of Article 36.01(1), supra, constitutes reversible error. There can be no doubt that the provisions of Article 36.01(1) supra, were designed to serve a salutary purpose and should be strictly complied with by all prosecutors. If the action here complained of had been permitted over objection, reversible error should follow. We cannot agree, however, that in absence of an objection, exception, or .a request for an instruction or a mistrial, an accused may successfully raise such question for the first time on the motion for new trial as attempted here. Cf. Kelley v. State, 99 Tex.Cr.R. 403, 269 S.W. 796.

It is observed that appellant testified at the trial and the prior convictions were not used for impeachment. In the hearing on punishment only two of the prior convictions were actually used for enhancement, and the others were introduced as part of appellant’s “prior criminal record”. Article 37.07, V.A.C.C.P.

The jury should not have been informed of the prior convictions alleged by reading of the entire indictment prior to their deliberations on guilt or innocence, but in view of the record here presented, no reversible error appears.

Finding no reversible error, the judgment is affirmed.


text:
    Francis Paul SEEFURTH, Appellant, v. The STATE of Texas, Appellee.
    No. 40724.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.
    Rehearing Denied Jan. 31, 1968.

      George L. Walker, Houston, Marvin O. Teague, Houston, (on appeal only), for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty-i Austin, for the State.
   OPINION

ONION, Judge.

The offense is Unlawful Delivery of a Dangerous Drug, To wit: Amphetamine; the punishment, assessed by the jury, 730 days in jail and $3,000.00 fine.

At the outset appellant challenges the sufficiency of the evidence to support the conviction.

J. D. Oakes, a member of the Narcotic Division of the Houston Police Department, testified that on February 9, 1966, at approximately 4 p. m. he was in a bar with another person known to him only as Charles (later shown to be Charles Peters) ; that at such time he had occasion to talk over the telephone with a person he later learned to be the appellant; that in said conversation appellant inquired of Oakes whether he was interested in purchasing 50,000 amphetamine pills for $3,-500.00; that a meeting was agreed upon for 6 p. m. that same date at 5419 South Braeswood, a shopping center in Harris County, Texas; that following such conversation Officer Oakes called the police department and informed Officer Ham-brick of the conversation.

Oakes related that while dressed in plain clothes and while driving an unmarked black Pontiac police vehicle he went to the shopping center, arriving there at approximately 6:10 p. m.; that someone else was with him (later shown to be Charles Peters).

Officer Oakes testified that though he did not know appellant by sight the appellant came to the Pontiac and directed him to park alongside of his (the appellant’s) car, which he did; that the appellant got in the back seat of the Pontiac and inquired if Oakes had the money to which he gave an affirmative answer; that he did have $750.00 arranged in a “gambler’s roll”; that appellant went to his nearby car and brought back two cellophane packages which he handed to Oakes telling him that each package contained 5,000 pills and that the remainder of the pills were in his car; that after the pills were handed to him by the appellant he (Oakes) stepped from the car, dropped the two packages on the ground; that at this time they were surrounded by the other officers and arrested; that he was present when appellant’s car was searched; that he could identify State’s Exhibits Nos. 1 and 2 as the two packages handed him by the appellant; that at the time of such delivery he did not have an original prescription from a practicing physician for the pills, nor was there affixed to the container in which the pills were delivered a name and address of the establishment from which such drugs were delivered, nor was there a date on the packages, nor was there a number of a prescription filed; that he was present when the pills seized at the time of arrest were turned over to the chemist, Floyd McDonald.

M. W. Hambrick, a member of the Federal Bureau of Narcotics, testified that on February 9, 1966, he was employed by the Houston Police Department, Narcotics Division; that on said date between 4 and 6 p. m. he received a telephone call from Officer Oakes; that as a result thereof he and another officer went to the 5400 block of South Braeswood to a shopping center, arriving a few minutes before Officer Oakes; that when Oakes arrived the appellant appeared and got in the back seat of the Pontiac where he remained for a few minutes; that appellant then got out of the Pontiac and went to the rear of a white Buick station wagon from which he removed two cellophane packages and returned to the Pontiac; that he and the other officers then converged on the Pontiac where they found the packages had been broken and they picked up the pills; that after appellant’s arrest the officers searched appellant’s nearby station wagon and found 8 cellophane bags containing the same type of capsules as in the packages which had been broken; that all of such capsules were turned over to the City Chemist McDonald; that he did not learn until later that appellant was the owner of the drug store at the shopping center; that he nor anyone else made an examination of the prescription records at the drug store. Hambrick identified State’s Exhibits Nos. 1 and 2 as the capsules found in the broken packages, and State’s Exhibit No. 3 as the capsules found in appellant’s station wagon.

Floyd McDonald, a chemist and toxicologist with the City of Houston, identified State’s Exhibits Nos. 1, 2 and 3 as the items he received from Officer Oakes on February 10, 1966, and testified that from a chemical analysis of such items he concluded that such exhibits contained approximately 48,000 individual capsules of amphetamine.

Testifying in his own behalf, appellant, a registered pharmacist, related that on February 9, 1966, he was operating three drug stores in the Houston area; that since December, 1965, he had on hand a large quantity of amphetamine pills; that in January, 1966, he met Charles Peters in a tavern, who approached him about purchasing a large quantity of amphetamine for a ship’s store; that he informed Peters the cost would be $3,500.00; that a week later he saw Peters and explained he would have to have a purchase order before making the sale and that Peters assured him he would have such an order; that he would not have sold without such an order.

Appellant denied any conversation with Oakes, but acknowledged a conversation with Peters in which they arranged a meeting; that when Peters appeared at the shopping center Oakes was with him; that when they asked if he had the pills he went to his car and got two plastic sacks containing approximately 10,000 capsules; that when he displayed the capsules to Oakes and Peters, Oakes told him to put them back and got out of the car just as the officers appeared on the scene; that Peters then grabbed the sacks from him and threw them out the window; that he had not lost possession until Peters grabbed the sacks.

Robert Anders, a defense witness, testified that he was in a lounge when appellant inquired of him if he knew anyone who would be interested in buying a surplus of drugs he had; that someone sitting next to him said he was a buying agent and that he had a purchase order to buy drugs.

The State called in rebuttal Perry Se-gall, a special investigator, who related that in January, 1966, the appellant told him that he (the appellant) had 50,000 amphetamine pills for sale and if the witness found a buyer he would get $1,000.00; that the appellant gave to him some samples of these capsules which he gave to the Chief of Police of Bellaire, Texas; that on February 9, 1966, the appellant called him and informed him that a buyer for the pills had been secured and requested that the witness be his body guard, promising one fee if the sale was consummated and another if it was not.

Segall testified that he went to Braes-wood Shopping Center, and his testimony as to what transpired corroborated Officer Hambrick.

We conclude that the evidence is sufficient to support the jury’s verdict.

In other grounds of error appellant contends that the trial court erred in admitting into evidence the fruits of an illegal search, To wit: State’s Exhibits Nos. 1, 2 and 3. It is observed from the foregoing summary that State’s Exhibits Nos. 1 and 2 were picked up from the public parking lot of a shopping center and were not obtained as the result of any search. The officers had probable cause to arrest the appellant at the shopping center when they did. Their subsequent search at the time of the arrest of appellant’s nearby station wagon from which he had been seen removing State’s Exhibits Nos. 1 and 2 was clearly incident to a lawful arrest. State’s Exhibit No. 3 was properly admitted into evidence. Appellant’s claims in this regard are without merit.

In connection with appellant’s next ground of error, we quote from appellant’s brief filed in the trial court:

“The argument of State’s counsel in this cause was so prejudicial, objectionable, and inflammatory as to cause the jury to have rendered an illegal verdict.”

No statement, argument or authorities were presented in support of such ground of error. In a supplemental brief filed in this Court we are merely referred to the argument.

We do not consider the above as a ground of error because it does not tell the trial court what the appellant is complaining about. See Article 40.09, Sec. 9, Vernon’s Ann.C.C.P. Only recently we stated in Ash v. State, Tex.Cr.App., 420 S.W.2d 703, 705 (November 1, 1967): “Candor and specificity is necessary in order to state a ground of error.”

We cannot agree that the trial court abused its discretion in refusing appellant’s request for an “adjournment” in order for appellant to obtain certain records. J. W. Pruitt, a defense witness, testified he was in the wholesale drug business and had sold drugs including amphetamine to the appellant; that the records and invoices in his office, which he did' not have with him, would reflect such sales. The court denied appellant’s request for a 40 minute or so recess in order to allow the witness time to travel 10 or 12 miles to his office. The record before us does not reflect appellant’s diligence in securing such business records, invoices, etc., nor are they brought forward in this appellate record. We further observe that appellant’s testimony that he had legitimately acquired the 50,000 capsules of amphetamine was undisputed.

Appellant presents nine grounds of error relating to the court’s charge and claims that the court committed error in overruling his objections to the charge and his special requested charges. These grounds of error are presented solely by formal bills of exception. See Article 40.09, Sec. 6(a), V.A.C.C.P. Nowhere else in the record is there any evidence or even any indication that the objections and special requested charges were presented in writing to the court prior to the reading of the charge to the jury in accordance with Articles 36.14 and 36.15, V.A.C.C.P.

In an instrument entitled “Certificate Supplementing Approval of the Record” the trial judge stated that the formal bills of exception were never presented to him, that each is factually untrue because no written objections or requested charges were presented to him in relation to the court’s charge.

In his supplemental appellate brief appellant points out “[t]he truth of the matter is that the Trial Court told the Trial Counsel for the Appellant at the time, that he could make his objections to the Court’s Charge at a later time. This was done by way of the formal Bills of Exception.”

If the trial judge took the action claimed, he was without authority to permit such procedure. Cf. Gonzalez v. State, 164 Tex.Cr.R. 64, 297 S.W.2d 144; Ortiz v. State, 121 Tex.Cr.R. 438, 53 S.W.2d 58. By failing to comply with the requirements of Articles 36.14 and 36.15, supra, at the trial itself appellant waived his right to have his objections and special requested charges considered. Scott v. State, 106 Tex.Cr.R. 376, 292 S.W. 891; Lopez v. State, 112 Tex.Cr.R. 517, 17 S.W.2d 807; Hanvy v. State, 144 Tex.Cr.R. 351, 162 S.W.2d 721; Arrisola v. State, 171 Tex.Cr.R. 369, 350 S.W.2d 551.

These articles are ones the Legislature had a right to enact, and are statutes which the Courts can neither ignore or emasculate. See Vinson v. State, 77 Tex.Cr.R. 546, 179 S.W. 574.

These articles are mandatory and there must be strict compliance with their provisions. See Templeton v. State, 152 Tex.Cr.R. 121, 210 S.W.2d 168; Cedillo v. State, 165 Tex.Cr.R. 371, 307 S.W.2d 267; Hays v. State, 129 Tex.Cr.R. 156, 84 S.W.2d 1008.

The strickness of the interpretation to be given to such statutes is demonstrated by our recent decision in Smith v. State, 415 S.W.2d 206, where we held that the requirements of Articles 36.14 and 36.15, supra, would control over the provisions of Article 40.09, Sec. 4, V.A.C.C.P., giving effect to a transcription of the court reporter’s notes which are certified and included in the record on appeal.

The real purpose of the enactment of these articles was to enable the trial judge to know in what respect the defendant regards the charge as defective and to afford him an opportunity to correct it before reading the charge to the jury. See Spadachene v. State, 137 Tex.Cr.R. 26, 127 S.W.2d 466; Brown v. State, 140 Tex.Cr.R. 133, 143 S.W.2d 775; Garrison v. State, 143 Tex.Cr.R. 403, 158 S.W.2d 815; Green v. State, 144 Tex.Cr.R. 186, 161 S.W.2d 114.

These articles serve a salutary purpose in preventing the trial judge from being “sand-bagged” and in preventing unnecessary reversals.

An objection to an instruction or special requested charge made for the first time after the trial, after verdict, on the motion for new trial or on appeal comes too late under the very terms of the statutes. Mannen v. State, 109 Tex.Cr.R. 74, 3 S.W.2d 443; Walker v. State, 78 Tex.Cr.R. 237, 181 S.W. 191; Dean v. State, 118 Tex.Cr.R. 251, 42 S.W.2d 1025; Choate v. State, 131 Tex.Cr.R. 147, 97 S.W.2d 189; Johnson v. State, 141 Tex.Cr.R. 175, 147 S.W.2d 811; Campbell v. State, 92 Tex.Cr.R. 28, 241 S.W. 149; Milum v. State, 149 Tex.Cr.R. 409, 195 S.W.2d 134; Miller v. State, 82 Tex.Cr.R. 586, 200 S.W. 398; Crawford v. State, 149 Tex.Cr.R. 219, 193 S.W.2d 208; Anderson v. State, 95 Tex.Cr.R. 346, 254 S.W. 986; Fisher v. State, 146 Tex.Cr.R. 16, 170 S.W.2d 773; Dukes v. State, 138 Tex.Cr.R. 503, 136 S.W.2d 848.

Likewise, an objection to the court’s charge or a special requested charge presented for the first time in a bill of exception cannot be considered. See Kincaid v. State, 111 Tex.Cr.R. 1, 10 S.W.2d 725; Martin v. State, 131 Tex.Cr.R. 59, 95 S.W.2d 964.

It is true that where the record fails to disclose some action, testimony, objection, event, etc., a formal bill of exception may be utilized to supply the deficit. See Article 40.09, Sec. 6(a) (b), supra. Such procedure was not designed, however, to add to the record an event that did not in fact occur.

From what we have said, it is clear that the bills of exception are not before us for review.

The State further contends that the formal bills of exception cannot be considered by this Court because, though filed with the clerk, they were not “presented” to the trial judge as required by Article 40.09, Sec. 6(a) supra. The State also cites and relies upon Articles 36.20, 40.10, V.A.C.C. P. and Rule 372(f), Texas Rules of Civil Procedure.

The appellant concedes the record does not reflect that the bills were formally presented to the trial judge, but calls attention to the timely filing of such bills with the clerk. He contends that since the bills were not all filed at the same time the clerk was caused to give written notice to the court of such filings on three separate occasions; that the trial court did not act upon the bills within 100 days after the giving of notice of appeal and that such bills must be considered as approved; that the trial court approved the record reflecting the above action without objection from the State or without holding a hearing for the approval of the record on his own motion. See Article 40.09, Sec. 7, V.A.C.C.P.

Appellant further complains that the supplemental certificate to the approval of the record entered 213 days after notice of appeal, comes too late and cannot be considered as a qualification to his bills of exception.

Since the bills are not before us for review for the reasons stated above, we need not decide whether under the facts of this particular case the “presentment” requirements of Article 40.09, Sec. 6(a), supra, have been met.

Where a formal bill of exception relating to the court’s charge is presented, it will always be carefully scrutinized to determine compliance with Articles 36.14 and 36.15, supra. Otherwise, the very purpose of these articles will be subverted.

Even if we were able to conclude that appellant’s bills of exception were before this Court for review, we would be unable to conclude that they show a compliance with the above described statutes, or if they do, that they reflect error.

Bills of exception Nos. 2 to 8, inclusive, recite that the appellant presented his objection to the charge in writing and set out the objection, but fail to show that such objection in writing was presented to the trial court or filed with the clerk or that the trial judge made any ruling on such objection. See Sullivan v. State, Tex.Cr.App., 401 S.W.2d 246; Marr v. State, Tex.Cr.App., 383 S.W.2d 928; Stone v. State, 171 Tex.Cr.R. 201, 346 S.W.2d 323; De La Garza v. State, Tex.Cr.App., 379 S.W.2d 904.

Bill of exception No. 9 relates to a requested charge “presented to the court” before the court’s charge was read and recites that the court refused to grant it to which action appellant objected and excepted. This bill is deficient in that it does not show that the requested charge was in writing.

Bill of exception No. 1 is the only bill which reflects that written objection to the court’s charge was presented to the trial judge and acted on by him prior to the reading of the charge to the jury.

This bill complains that there was no bifurcated trial in this misdemeanor case. See Article 37.07, V.A.C.C.P. (1965). Only recently m Bridges v. State, 422 S.W.2d 449, this Court noted the difficulties and necessity of construing the 1965 version of Article 37.07, supra. See Rojas v. State, Tex.Cr.App., 404 S.W.2d 30; Williams v. State, Tex.Cr.App., 415 S.W.2d 917; Jones v. State, Tex.Cr.App., 416 S.W.2d 412; Attorney General’s Opinion C-587 (January 25, 1966). These difficulties have apparently been removed by the 1967 amendment of Article 37.07, supra (Acts 1967, 60th Leg., Ch. 659, pp. 1732, 1739, 1740).

We would not be inclined to hold that a unitary trial in a misdemeanor case was error under the 1965 version of Article 37.07, supra, in the absence of a showing of injury. See Bridges v. State, supra.

Finding no reversible error, the judgment is affirmed.


text:
    Nicolosa Contreras PENA, Appellant, v. The STATE of Texas, Appellee.
    No. 40802.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    Rehearing Denied Jan. 24, 1968.

      Charles W. Tessmer (on appeal), Henry J. Novak, Jr. (on appeal), Dallas, for appellant.
    Henry Wade, Dist. Atty., Arch Pardue, Charles Caperton and William S. Mason, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is felony theft; the punishment assessed by the jury, eight (8) years confinement in the Texas Department of Corrections.

Appellant challenges the sufficiency of the evidence to sustain her conviction as a principal to the offense of felony theft and to prove that all of the items alleged in the indictment were taken on or about August 4, 1966.

On August 4, 1966, a City of Dallas police officer and a part-time security officer for Titche-Geottinger Department Store (Wynnewood Shopping Center — Oakcliff) observed appellant, known to him to be a shoplifter, and Mary Helen Pena in said store. After keeping them under surveillance for several minutes, he observed them walk from the lingerie department to the junior sportswear department where he witnessed appellant remove a dress from the display rack, hold the dress down low, roll it up into a ball and stick it into a large Titche’s shopping bag (the type given to a customer at the time of a purchase) which Mary Helen was holding open and then saw Mary Helen close the bag. Immediately thereafter the officer observed the two women proceed to the exit whereupon he stopped them, showed them his identification and told them that they were under arrest. He asked to examine appellant’s handbag and attempted to take possession of it. While the appellant and the officer struggled over her handbag, Mary Helen Pena fled across the street into another business establishment where she was apprehended shortly thereafter. After the apprehension of both of the women, they were taken by the officer to the security room in the store where it was discovered that neither one had any type of identification and where subsequently the appellant gave the officer a false name. Upon searching the shopping bag which had been found in the store in the path of Mary Helen Pena’s flight, the officer found the dress that he had observed appellant remove from the display rack. Also in the bag were twenty-two pairs of ladies’ panties, two brassieres, two birthday cards, one pair of sunglasses and a large straw hat. The only receipt found in the bag was for a $.50 purchase of the large straw hat. Neither appellant nor the other woman could produce a receipt for any of the other items in the bag. Neither appellant nor the other woman were seen taking any other items except the dress and no proof was offered as to just when the other items were taken. The store supervisor did, however, testify that all the items alleged in the indictment, as well as the birthday cards, were in her care, custody and control and that they were taken from her possession without her consent. She further testified that immediately following the apprehension of the two women that she went to the counter where the ladies’ panties were kept or displayed and found that the bin in which the size 7 panties were displayed was empty.

Testifying in her own behalf, appellant related that on the date in question she went to Titche’s to seek a friend of hers and that upon finding that the friend did not work at that particular Titche’s store she began looking at some robes in the store when she met Mary Helen Pena, who was just a “hello” friend. Appellant related that she and Mary Helen began shopping around the store and that when they got to the junior sportswear department Mary Helen Pena told her that she would like a certain dress for her little girl and asked the appellant to take the dress off the hanger and put it in the bag. Appellant stated that she took the dress off the hanger but then claimed that Mary 'Helen Pena grabbed it from her and put it in the bag. She further related that she started to leave the store after Mary Helen did this because she had a funny feeling as a result of the occurrence. She further related that she and Mary Helen were arrested by the store’s security officer. She testified further that the first she knew of the contents of the bag was when such contents were removed from the bag in the security room following her arrest. On cross-examination appellant testified that she was the same Nicolosa Pena who was charged, tried and convicted of the offense of shoplifting on the 17th day of March, 1965, that she was subsequently convicted of shoplifting on July 8, 1965, and that she was the same Nicolosa Pena who was convicted of the offense of theft of corporeal personal property over the value of $50.00 on May 27, 1966, for which offense she was granted probation.

Appellant was indicted for theft of the dress, twenty-two pairs of panties, two brassieres and one pair of glasses of the total value of over $50.00. The indictment alleged that the theft occurred on or about August 4, 1966.

In her first ground of error appellant complains that the evidence is insufficient to prove the allegation that all items in the indictment were taken on or about August 4, 1966.

The indictment alleged the aggregate value of the items taken was over $50.00 without alleging the specific price of each. As the indictment was drawn, the State was bound to prove that all of the property described in the indictment was in fact stolen, the items not being of uniform value. Anderson v. State, 166 Tex.Cr.R. 337, 314 S.W.2d 603; Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864. It was further incumbent upon the State to prove that all the items alleged in the indictment were taken either on or about the same time or on separate occasions with one design, impulse or purpose, Deem v. State, 167 Tex.Cr.R. 110, 318 S.W.2d 649; Flynn v. State, 47 Tex.Cr.R. 26, 83 S.W. 206, for an absence of such proof, there would be but several misdemeanor offenses. Neither the dress, the sunglasses, the panties nor the brassieres were singularly over the value of $50.00. The testimony showed market value of the dress was $9.99; the total value of the twenty-two pairs of panties was $49.75; the brassieres, $11.90 and the sunglasses, $1.99.

The State relied upon circumstantial evidence to prove that the theft of the items other than the dress occurred on or about the same time.

In 5 Branch’s Ann.P.C., 2nd Ed., Sec. 2618, pp. 67, 68, it is stated:

“Where the evidence shows a continuous series of acts or one general purpose or transaction, or a loss of property at or about the same time in excess of the value of $50.00, which might be attributed to the defendant, a conviction for felony theft of all of such property is authorized. Wilson v. State, 70 [Tex.] Crim. [R. 627] 631, 158 S.W. [512] 516; Garrett v. State, 87 [Tex.] Crim. [R.] 12, 218 S.W. 1064; Cunningham v. State, 90 [Tex.] Crim. [R.] 500, 236 S.W. 89; Moore v. State, 96 [Tex.] Crim. [R.] 121, 255 S.W. 988 (theft of gasoline transmitted through pipes).”

The taking of the dress off the rack by appellant on August 4, 1966, is undisputed. The finding of that dress shortly thereafter in a shopping bag in which it was seen to have been placed with other items shown to have been taken from the store without the owner’s consent and the discovery of the empty bin of ladies’ panties immediately after the apprehension of the appellant and her companion, when taken together with all the other facts and circumstances, are sufficient to support the jury’s verdict. Viewing the evidence in the light most favorable to the State the jury was authorized to conclude that all the items were taken on or about the same time in a series of events thereby constituting one offense.

In her next ground of error appellant contends that the evidence is insufficient to sustain her conviction as a principal to the offense of felony theft; that, if anything, the evidence only shows the appellant to be guilty of the misdemeanor theft of the dress; that it was not reasonable for the jury to infer from the fact that the parties were co-principals in the taking of the dress that they acted together in taking the other articles.

In Everett v. State, 153 Tex.Cr.R. 79, 216 S.W.2d 281, we said:

“An agreement of parties to act together in a common design can seldom be proven by words, but reliance can often be had on the actions of the parties showing an understanding and common design to do a certain act.”

See also Johnnene v. State, Tex.Cr.App., 417 S.W.2d 64.

In 16 Tex.Jur.2d, Criminal Law, Sec. 58, p. 171, it is said:

“Participation in an enterprise may be inferred from circumstances and need not be shown by direct evidence. Any person who advises or agrees to the commission of an offense and who is present when it is committed, is a principal, whether he aids in its commission or not. The mere fact of presence is not sufficient, however, but is a circumstance tending to prove that a person is a principal, and, taken with other facts, may be sufficient to show that he was a participant.”

In Westfall v. State, Tex.Cr.App., 375 S.W.2d 911, it was pointed out that the agreement of the parties to act together in an unlawful act or design may be established by. circumstantial evidence.

In Mills v. State, Tex.Cr.App., 417 S.W.2d 69, it was said:

“We further call attention to the holding in Harper v. State, Tex.Cr.App., 95 S.W. 125, and Singleton v. State, 158 Tex.Cr.R. 71, 253 S.W.2d 441, wherein we said:
“ ‘If the circumstances exclude every reasonable hypothesis except guilt, this is sufficient.’ ”

The court charged the jury upon the law of circumstantial evidence and of principals.

To recapitulate, the evidence here reflects that the appellant, a known shoplifter, was observed going from one department to another in Titche’s in company with a companion. She was seen to take a dress from the display rack and place it into a bag held by her companion. When arrested she struggled with the officer over her handbag enabling her companion to flee. At the time of her arrest she was without identification and subsequently gave the officer a false name and made no explanation as to her presence at the store. A search of the shopping bag in question revealed not only the freshly purloined dress but the other items alleged in the indictment and the two birthday cards, all shown to have been taken from Titche’s without consent or permission.

When this evidence is taken together with all the facts and circumstances in the case we deem it sufficient to show that the appellant was guilty as a principal to the felony theft. See Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046, Definition No. (1).

The judgment is affirmed.


author: WILSON, Justice.

text:
    J. G. MAGNESS and James Weldon Lewis, Appellants, v. Billy Wayne KIRBY, Appellee.
    No. 4664.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1967.
    Touchstone, Bernays & Johnston, Glenn Polk, Dallas, for appellants.
    Rogers & Rogers, Sherman, for appellee.
   OPINION

WILSON, Justice.

Appellants’ plea of priivlege was overruled. Appellee relies solely on subdivision 4 of Art. 1995, Vernon’s Ann.Civ.St. The questions presented narrow to one: Whether there is evidence or sufficient evidence that any negligence of appellants’ was a proximate cause of a fatal automobile accident. There are no findings of fact.

Among other conduct of the co-defendant alleged in the controverting plea was that she suddenly stopped her automobile near the approach to a bridge without warning, in violation of Art. VIII, Sec. 68(c), Art. 6701d, V.A.C.S.; that she negligently blocked the traffic lane in which she and plaintiff’s car were traveling; that she failed to keep a proper lookout; and failed to keep her car under proper control.

There is evidence that appellants’ truck was approaching the co-defendant’s car partially on the wrong side of -the road. The co-defendant testified she pulled over “to the right side of my lane of traffic” and stopped 24 feet from the bridge; that she saw a car in her rear-view mirror “three quarters to a block” behind her. Her car was struck by the following car, which then careened left, striking the truck, which in turn veered left, striking a fourth approaching vehicle. The last collision was fatal.

There is no evidence of probative force that the co-defendant stopped suddenly or suddenly decreased her speed, in violation of Sec. 68(c) of Art. 6701d. The only evidence is that she brought her car to “a slow, normal stop”, and that she “slowed down and stopped.” Testimony that she stopped “pretty fast” is a conclusion and is so indefinite as to be without probative force. 92 A.L.R.2d 1391. There is no evidence she failed to give an appropriate signal of intention to stop.

We decide the trial court was authorized to conclude she negligently blocked her traffic lane, and that this negligence was a proximate cause. Appellants’ truck was on the bridge, and there is evidence the truck was partially on the wrong side of the road. The truck lights were flashing. Although the evidence is not clear, it may be said it indicates there was an eight-foot unoccupied shoulder to her right. The court was authorized under the evidence to find that she had a duty to drive off of the main traveled portion of the highway before stopping.

We find no evidence the co-defendant failed to keep a proper lookout. She testified she looked in her rear-view mirror before she started to slow down, and the following car was there “three quarters to a block” behind. There are no circumstances which raise the issue. The issue of lack of control is obviously not raised. Her car was stopped.

Affirmed.