author: ONION, Judge.

text:
    Shaper TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 40546.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1967.
    Rehearing Denied Nov. 29, 1967.

      J. M. Fly, Victoria, L. S. Benge, Goliad, for appellant.
    Wiley Cheatham, Dist. Atty., Quero, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment, assessed by the jury, 99 years in the Texas Department of Corrections.

Appellant does not challenge the sufficiency of the evidence, and we do not deem necessary a complete recitation of the facts reflected by this 3,800 page record. The following summary will suffice.

Appellant, a 65 year-old bachelor rancher, was charged with the murder of Lucia Ca-brerra Davila Etter, age 38. The record shows that appellant’s father on his death bed had extracted a promise from appellant that he would never marry and would always care for his older sisters. It appears that over a period of 15 years appellant had engaged in sexual relations with the deceased, who at the time of her death had been married to Fritz Etter, age 70, for approximately a year and a half. On November 16, 1965, at approximately 2:40 p. m. appellant followed Lucia, the deceased, and Fritz in his automobile and after overtaking their pickup truck within the city of Goliad, shot and killed both of them with his rifle. There were eye witnesses. Appellant testified that he had always paid the deceased for her favors, but sometime before the alleged offense, and particularly since her marriage to Etter, the deceased had begun to extort money from him upon the threat to reveal their long time illicit affair to his old maid sisters with whom he lived. He related that on the day in question the deceased had demanded more money, rejecting his offer of $45.00 out of the $50.00 he had as not being enough, and had motioned for him to follow. Appellant testified he concluded that the deceased and her husband were on the way to the ranch to see his sisters; that when they stopped, the deceased jumped out of the pickup and that Fritz was reaching under the seat of the pickup as if for a gun. Appellant then claimed that he remembered nothing that transpired afterwards until he was on his way home, whereupon he returned voluntarily to the Sheriff’s office. Appellant’s defenses were insanity and self-defense.

Appellant initially contends the evidence was insufficient to support the jury’s verdict finding the appellant sane at the pretrial hearing afforded appellant by virtue of Article 46.02, Sec. 1, Vernon’s Ann. C.C.P.

Appellant apparently overlooks the fact that no appeal lies from a judgment rendered in a preliminary trial on the issue of insanity. Pena v. State, 167 Tex.Cr.R. 406, 320 S.W.2d 355; Ex parte Hodges, 166 Tex.Cr.R. 433, 314 S.W.2d 581. See also State v. Olsen, Tex., 360 S.W.2d 398.

Nevertheless, we observe that, in addition to the presumption of sanity, the State’s evidence including medical testimony clearly supports the jury verdict. It is further noted that the same two issues, present insanity and insanity at the time of the commission of the offense, were also presented to and rejected by the jury at the trial on the merits.

In view of some discrepancy in numbers and in order to discuss the grounds of error urged in a more chronological order, we have taken the liberty of re-numbering the remaining grounds of errors.

If we understand appellant’s second ground of error, it is that there existed so great a prejudice in the county that he could not obtain a fair and impartial trial, and the trial court erred in refusing to change venue upon appellant’s motion.

At the hearing upon the written motion for a change of venue, appellant called nine witnesses, eight of whom testified they had heard the case generally discussed and expressed their opinion that appellant could not receive a fair trial in Goliad County. The State called ten witnesses who related that the case had only been slightly discussed and that in their opinion appellant could receive a fair and impartial trial. The record reflects that Goliad County had a population in excess of 5,000 persons according to the 1960 Federal Census, and approximately 2,000 qualified voters at the time of the hearing. The court overruled such motion. Inspection of the voir dire examination indicates that approximately 39 of the 112 jurors questioned held the opinion that appellant was guilty. However, all of the twelve jurors ultimately selected had formulated no opinion as to guilt or innocence, though most had either heard the case discussed or read about the case in the newspapers. It is noted that appellant’s counsel expressly stated that he was happy to accept at least 9 of the 12 jurors chosen.

Appellant attached to the record at hearing on Motion for New Trial a number of copies of the Victoria Advocate and clippings from the Corpus Christi Caller-Times. Most of the articles dealt with news reports of the trial on the merits after the selection of the jury. There is a showing that the Victoria Advocate had a circulation of 500 copies in Goliad County at the time, but the circulation figures in the county of other newspapers were not offered. The news accounts attached appear to be fair, non-inflammatory, and apparently published for the purpose of informing the public of current events. There is no showing that by reason of such publication there was created in the public mind a prejudice so great as to prevent appellant from receiving a fair trial.

Appellant does point to the affidavit of Dr. George Constant, appellant’s expert witness at the separate sanity trial, that his life was threatened by an unknown person if he testified again. Appellant further contends that the fact the jury returned with the verdict of guilty after deliberating only an hour and twenty minutes is evidence of the jury’s preconceived notion of appellant’s guilt. No authority is cited in support of such proposition.

In Moon v. State, 169 Tex.Cr.R. 14, 331 S.W.2d 312, where the death penalty was imposed in a murder case, this Court held that in order to require a reversal for refusal to change venue there must be a showing that prejudice against the accused found its way into the jury box at his trial. See also Lopez v. State, 158 Tex.Cr.R. 16, 252 S.W.2d 701; Kizzee v. State, 166 Tex.Cr.R. 191, 312 S.W.2d 661; Slater v. State, 166 Tex.Cr.R. 606, 317 S.W.2d 203. After a careful examination of the facts and circumstances and procedures employed, it is our considered judgment that there has been no showing of identifiable prejudice, or that the appellant was denied a fair trial or due process of law. The trial judge did not abuse his discretion in refusing to change venue.

In his third ground of error appellant contends “that the trial court erred in ordering the Sheriff’s department to summon talesmen after exhausting the list of the first one hundred jurors and fore-ing the defense to attempt to select a jury from persons handpicked by the Sheriff’s department, when all during this time the Court had on file with the District Clerk’s office a list of jurors selected by the jury commission to be used during this term of Court.”

The record indicates that the jury was selected in part from the jury panel for the week rather than by a special venire as permitted by Article 34.01, V.A.C.C.P. When it appeared to the court that such jury panel was soon to be exhausted, the court properly ordered the Sheriff to summon a group of talesmen in accordance with Article 34.02(b), V.A.C.C.P., Goliad County being a jury commission county. Appellant subsequently objected to these talesmen as being “handpicked” by the Sheriff, composed chiefly of persons of Dutch or German extraction, and not selected from all parts of the county. The objection was overruled. Later, when it again appeared that the panel would be exhausted, the court ordered the Sheriff to summon 15 additional talesmen. At such time the court noted that there was an unused jury list selected by the jury commissioners for the term, and stated if appellant agreed, the second group of talesmen might be summoned from such list. In view of such list appellant then objected to all tales-men summoned, asking that they be dismissed. Upon being overruled, appellant’s counsel then agreed to the use of such jury list by the Sheriff for summoning the second group of talesmen. It appears that subsequently a third group of talesmen was summoned by the Sheriff. We perceive no error.

In capital cases, upon the exhaustion of a special venire or the jury panel for the week (where as many as one hun-dered have been summoned) in counties not using the jury wheel, the additional veniremen or talesmen are to be summoned by the Sheriff upon the order of the court. Articles 34.01, 34.02, V.A.C.C.P. The court was not required to resort to jury lists selected by jury commissioners for the term of court. Further, it is not necessary that talesmen be summoned from every section of the county; Gonzalez v. State, 164 Tex.Cr.R. 64, 297 S.W.2d 144; Adams v. State, 158 Tex.Cr.R. 306, 255 S.W.2d 513.

Appellant contends in his fourth ground of error that the trial court erred in refusing to give him five additional challenges after he exhausted his fifteen peremptory challenges.

If we understand appellant’s contention, it is that he was required to use five of his peremptory challenges when the judge refused his challenges for cause where the prospective jurors had stated they had an opinion as to appellant’s guilt or innocence and that it would require evidence to remove such opinion.

This Court has, in order to give to this appeal every consideration, searched the 1,549 pages of the voir dire examination to determine which fifteen prospective jurors appellant challenged peremptorily and from this group the five of which appellant now complains.

We cannot find any testimony by these prospective jurors which would indicate the trial court erred in refusing any challenge for cause, where made, on the ground that the prospective jurors entertained an opinion which would influence his verdict.

Appellant’s contention is without merit and is overruled.

In his fifth ground of error appellant complains that the trial court erred in admitting, over repeated objections, testimony that he had also killed Fritz Etter.

It is well settled that “(w)here the offense is one continuous transaction, or another offense is a part of the case on trial or blended or closely interwoven therewith, proof of all the facts is proper.” 4 Branch’s Anno. P.C.2d, Sec. 2255, p. 618. See also 23 Tex.Jur.2d, Sec. 196, p. 302; Cook v. State, Tex.Cr.App., 398 S.W.2d 284; Fuller v. State, Tex.Cr.App., 380 S.W.2d 619. The trial judge did not err in admitting this testimony. We observe that throughout the trial the careful trial judge sought to give the above rule as limited an application as possible, even to the extent of entirely excluding one State’s witness. Appellant’s fifth ground of error is overruled.

Appellant further contends in his sixth ground of error that the trial court committed reversible error in permitting, over objection, the Sheriff of Goliad County to testify as to oral inculpatory statements made by appellant at the time of his voluntary surrender at the Sheriff’s office.

The shooting occurred at 2:50 p. m., and shortly thereafter the Sheriff arrived at the scene. After a few minutes of investigation the Sheriff left to find appellant. Meanwhile appellant had voluntarily arrived at the Sheriff’s courthouse office, but found no one present. Having heard over the Sheriff’s two-way radio that the Sheriff was on his way to appellant’s residence, and not being able to operate the same, appellant walked to the Tax Collector’s office and asked a woman deputy there to contact the Sheriff and tell him that he (appellant) was not running. Appellant then returned alone to the Sheriff’s office, sat down and began reading a newspaper. When the Sheriff arrived, between 3 :15 p. m. and 3 :30 p. m., the appellant arose and voluntarily stated, “Well, I told them I was going to do it.” The Sheriff then pointed to the .30-30 rifle (later shown to be the weapon from which the fatal shots were fired) and appellant stated it belonged to him, but warned the Sheriff to be careful as the rifle was loaded. The record reflects that the Sheriff then told appellant he should not make any further statements as there were certain procedures to be followed before he could say anything. Shortly thereafter the appellant was taken before a magistrate.

The Sheriff testified he had not arrested appellant prior to the complained of statements. From all the facts and circumstances in evidence, including the fact appellant was still in possession of his loaded rifle, we conclude that appellant was not under arrest when he made the inculpatory remarks described. The trial court did not err in admitting such statements.

Appellant relies upon Holland v. State, Tex.Cr.App., 415 S.W.2d 186, in support of his contention. Holland is clearly distinguishable on its facts from the case at bar.

We further note that Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, is not applicable to the case at bar because appellant’s trial commenced prior to June 13, 1966, the date of the decision in Miranda. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.

Even if appellant’s trial had commenced after the effective date of the Miranda decision, we note that in Miranda the United States Supreme Court held:

“There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”

In his seventh ground of error appellant contends that reversible error was committed when the State, over objection, was permitted to read into evidence statements from Dr. George Constant’s deposition relating to prejudicial extraneous offenses and transactions committed by the appellant.

It appears that it was the appellant who, without objection, introduced such evidence from the deposition, not the State. The appellant read into evidence Dr. Constant’s testimony from the separate sanity hearing as well as a large portion of his deposition, both on direct and cross-examination. Such testimony included the extraneous transactions now complained of.

It is true that the State subsequently offered the remainder of Dr. Constant’s deposition which also mentioned some of such extraneous matters. This was clearly permissible. See Article 38.24, V.A.C.C.P. Appellant’s seventh ground of error is overruled.

In appellant’s eighth ground of error he urges that the courtroom decorum was such that he was deprived of a fair and impartial trial accorded by the Fourteenth Amendment, United States Constitution. He contends that armed sheriff’s deputies were located throughout the courtroom and seated near the jury box and appellant’s counsel table; that coffee was provided to the jury by the Sheriff’s office; that the courtroom was filled to capacity and a local class of school children attended one court session (apparently at hearing on Motion to Change Venue only); that the press was provided a table inside the bar or rail in view of the jury box; and that on numerous occasions the Sheriff and State’s counsel conferred in open court in presence of the jury.

There can be no question that “atmosphere essential to the preservation of a fair trial — the most fundamental of all freedoms — must be maintained at all costs.” Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543.

We recognize that despite the observance of the formal requisites of a trial that the atmosphere in and around the courtroom might be so hostile as to interfere with the trial process. Estes v. State of Texas, supra; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543.

With this in mind we will examine appellant’s contention.

During the trial appellant made two objections in this connection. First, he objected to a deputy sheriff sitting close to appellant’s counsel table. Such objection was sustained and the deputy was instructed by the court to move. Second, appellant objected to the State’s counsel conferring with the Sheriff in presence of the jury. The objection was overruled. There is no showing that the conference or conferences were within the hearing of the jury. It is further noted that when the Rule was invoked as to the witnesses, the Sheriff was excused therefrom by the court, without objection, to assist the court in the conduct of its business.

It is obvious from the record that the trial judge was aware from the outset that there would be a large crowd in the courtroom at all times. He requested the Sheriff to assign such men as necessary to maintain security and insure an orderly trial. Though there is some conflict in the testimony, it appears also that one of appellant’s counsel cautioned the Sheriff to take precautions as he felt the appellant (at liberty on two $25,000.00 bonds) might come to the courthouse armed during the trial. This followed information received by the Sheriff that appellant had purchased .45 caliber ammunition.

The trial judge repeatedly cautioned the courtroom audience out of the jury’s presence as to their proper conduct to insure no disruption or disturbance. None is reflected in the record.

It is interesting to note that in careful compliance with Article 36.24, V.A.C.C.P., and the decision in Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, “special” deputies who were not witnesses to the cases and had not participated in the investigation, were sworn in to act as jury bailiffs for the trial to attend to the wants of the jury. It was these special bailiffs, not the Sheriff, who made arrangements with the County Judge in order to provide coffee for the jurors.

It is true that in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, that the Supreme Court clearly indicated that news reporters should not be placed inside the bar. Here, we observe, that only two reporters attended the trial, and one was not present at all sessions. There is no showing that they handled exhibits, caused confusion or disrupted the trial, or took any action that would have dictated that the trial judge regulate their conduct in the courtroom.

We fail to see, from a totality of circumstances, how the procedures employed in the case at bar involved prejudice or even such a probability of prejudice that they can be deemed inherently lacking in due process.

Appellant urges in his ninth ground of error that the jury was guilty of misconduct and committed reversible error when, in disregard of the court’s specific charge thereon, they considered the aspect of parole in their deliberations on appellant’s punishment.

The record reflects that the jury, while in deliberation at the penalty stage of the proceedings, sent the following note to the trial judge:

“Judge: What is the difference in a life sentence and a 99 year sentence. Subject to parole.
Elmer C. Jacob”

The trial judge, with approval of appellant’s counsel, answered as follows:

“The Court can only refer you to the instructions in charge.
Joe E. Kelly
Judge, 24th District Court”

It is a matter of common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole, Torres v. State, 169 Tex.Cr.R. 113, 331 S.W.2d 929; Walker v. State, Tex.Cr.App., 201 S.W.2d 823, and it is not every mention of parole which calls for a reversal. Henderson v. State, 169 Tex.Cr.R. 206, 332 S.W.2d 705; De La Rosa v. State, 167 Tex.Cr.R. 28, 317 S.W.2d 544. There is no showing that any further discussion followed receipt of the judge’s answer, or that at any time during deliberations any juror made an incorrect statement of the law concerning parole which would justify reversal. In fact, the contrary appears. No error is presented. Jackson v. State, Tex.Cr.App., 403 S.W.2d 145; Martin v. State, Tex.Cr.App., 400 S.W.2d 919; Walton v. State, Tex.Cr.App., 398 S.W.2d 555; Mullins v. State, Tex.Cr.App., 397 S.W.2d 426; Henderson v. State, supra; Torres v. State, supra.

In his tenth ground of error appellant complains that the jurors following their discharge refused to give appellant’s counsel affidavits concerning their deliberations. The refusal of any or all of the members of the jury, after their discharge, to talk to appellant’s attorneys or investigators violates no statute and does not authorize a reversal. See Graves v. State, Tex.Cr.App., 382 S.W.2d 486; Farrar v. State, 162 Tex.Cr.R. 136, 277 S.W.2d 114, Cert. denied, 350 U.S. 854, 76 S.Ct. 97, 100 L.Ed. 759.

Appellant lastly complains that the trial court erred in refusing to declare appellant a pauper for the purposes of appeal following a hearing in response to his pauper’s oath. He asks this Court to reverse this ruling and order that all costs of the transcription of the court reporter's notes be paid by the county of Goliad.

Under former Article 759a, Sec. 5, C.C.P., an appellant’s right to a statement of facts, upon proper presentation of a pauper’s affidavit was absolute and no discretion was vested in the trial court to refuse the same. Zamora v. State, 165 Tex.Cr.R. 613, 309 S.W.2d 447. The former law did not permit the trial court to hear evidence on the question.

Under Article 40.09, Sec. 5, V.A.C.C.P., 1965, the appellant has the responsibility of securing and paying for a transcription of the court reporter’s notes and furnishing the same to the clerk in time for inclusion in the record. The 1965 Code gives the trial judge the authority to conduct a hearing to determine indigency when a pauper’s affidavit is filed to obtain such transcription without charge. Such procedure was followed in the case at bar.

We have reviewed the record of the hearing, including testimony of appellant’s various financial transactions, the sale of cattle following the alleged offense, the transfer of his one-third interest in the ranch to his sisters the day following the trial, and the subsequent sale of such ranch to appellant’s attorneys. We cannot agree that the trial court abused its discretion in refusing to order the county to pay for the record.

It is observed that this is not a case where the appellant is before us without a transcription of the court reporter’s notes by virtue of the trial court’s ruling. Appellant’s counsel had the benefit of such transcription in preparing his appeal, both in the trial court and here. One of appellant’s retained counsel at the trial and on appeal deposited $400.00 with the reporter and informed the reporter that he or appellant would be responsible for the balance ($3,-215.00). The record does not reveal whether such balance has been paid.

We are not called upon in this appeal to interpret the contractual obligations here involved. Compare Burt v. Gahan, 351 Mass. 340, 220 N.E.2d 817.

The judgment is affirmed.


source: Caselaw Access Project

author: BELCHER, Judge.

license: Public Domain

text:
    Joseph Robert EREMITA, Appellant, v. The STATE of Texas, Appellee.
    No. 40596.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1967.
    Rehearing Denied Nov. 29, 1967.
    Don M. Wilson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Don Koons, Charles Caperton and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is. for sodomy; the punishment, eight years.

The complainant, P, a fourteen-year-old eighth grade boy, testified that prior to Friday, July 16, 1965, he had never been to appellant’s house, but on that date he went there three times; that he first went to appellant’s house with G and J, and after mowing the lawn, they went to P’s house, ate lunch, and returned to appellant’s house, wearing bathing suits, and washed his car; that appellant was present when they washed his car, but not when they mowed the lawn; that when they left the appellant asked him to return to do some typing but he never heard him ask the other two boys to return; that about 3 p.m., G accompanied him back to appellant’s house; that while sitting in the living room the appellant asked G to take the trash out, which he did, and then he told P to stand up, whereupon he pulled down P’s swimming trunks and put his mouth on his penis for “about a minute or so”; that he never resisted for the reason that appellant was bigger than he was and he was “afraid of him,” and when G returned to the door the appellant quit, pulled P’s trunks up, and he and G went home.

G testified that he was thirteen years of age, weighed 100 pounds, and in the eighth grade on July 16, 1965; that on Friday, July 16, after P had spent the previous night with him, he, J and P went to appellant’s house about 10 a.m., mowed the yard and returned to P’s home; that after lunch they returned to appellant’s house and washed his car; that, P having told appellant he knew how to type, the appellant asked him to return to talk about some typing but never asked him (G) to return, and that he volunteered to go with P to appellant’s house about 3 p.m.; that after a brief visit in the living room, the appellant asked him to empty some garbage, and he went into another room, got the garbage container which contained only two pieces of paper, and on looking through a window, he saw P standing with his swimming trunks down, and the appellant was. kneeling down with his mouth on P’s sexual parts; thát at this time he never saw P resist or heard him say anything; that he watched for a moment, then went on and threw the garbage out and returned into the house; and when he had gone into the house P said he had to go home and they left; that he thought the appellant was a homosexual and, although he thought about it, he never told P about it before taking him to appellant’s house on Friday morning;, that “I had a feeling it would” happen before we went over there; that on Wednesday, July 14, the appellant committed sodomy on him and J and took some pictures of them.

In rebuttal, the state called J as a witness,, and except for the last trip, when he did not go to appellant’s house, and that appellant paid G two dollars on Wednesday, July 14, his testimony substantially corroborates that of G.

Testifying in his own behalf, the appellant, age 46, admitted that the three boys came to his house; that they visited and the-boys mowed the grass and washed the car, but he denied committing any act of sodomy with any of them at any time; that the boys became frightened when he scolded them and told them he was going to tell their parents about them using a vibrator machine on their person and smoking, and he did not want the boys in his house because he was-then under a suspended sentence for sodomy.

It is insisted that the trial court erred oru the ground that he refused to charge the jury that G was an accomplice witness as a matter of law, and further, that the court’ again erred in not submitting such question: to the jury for determination.

The witness G was not shown to-have been in any manner criminally connected with or to have participated in the crime charged. If a state’s witness has no complicity in the offense for which an accused is on trial, his testimony is not that of an accomplice, whatever may have been his complicity with the accused in the commission of other offenses. 2 Branch 30, Sec. 731. Also see: Bowers v. State, 171 Tex.Cr.R. 345, 350 S.W.2d 27.

It is concluded that G was not an accomplice witness and that the evidence did not raise such an issue of fact.

The failure to charge the jury as contended was not error.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Walter Julian PHILLIPS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40683.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.
    No attorney on appeal.
    Henry Wade, Dist. Atty., Al Walvoord, Douglas D. Mulder and Kerry P. FitzGer-ald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is felony theft; the punishment, 10 years.

Sentence was pronounced and notice of appeal was given February 10, 1967.

The record in this cause was approved by the trial court on October 30, 1967. The State’s brief was filed on November 2, 1967, and the record was immediately forwarded to this Court.

The time for filing the defendant’s appellate brief does not begin to run until the approval of the record by the court. Article 40.09(9), Vernon’s Ann.C.C.P. In order that Article 40.09, and especially Section 9 thereof, may be complied with and in order that all further proceedings which may be had in the trial court under such Article pri- or to appeal to this Court are afforded the appellant, the record is returned to the trial court.

The appeal is abated.


author: DICE, Judge.

text:
    Ex parte N. V. TEAGLE.
    No. 40885.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1967.
    Tom P. Senff, Nacogdoches, for petitioner.
    Bryan Holt Davis, Nacogdoches, for respondent.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

This is a habeas corpus proceeding attacking petitioner’s conviction for felony-theft, with punishment enhanced to life imprisonment under Art. 63, Vernon’s Ann.P. C.

The conviction was in Cause No. 7581 m the District Court of Nacogdoches County on October 25, 1943.

It is made to appear from facts certified to this court by the Honorable Jack Pierce, Judge of the District Court of Nacogdoches County, that in one of the prior convictions used to enhance petitioner’s punishment (Cause No. 7381 in the District Court of Nacogdoches County on October 26, 1936) the petitioner was not represented by counsel and at such time he was indigent and did not waive the services of counsel.

Under recent opinions of the Supreme Court of the United States, applying Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the 1936 conviction was void and could not be used to enhance the punishment. See: Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526, and cases there cited. See, also, Ex parte Morgan, Tex.Cr.R., 412 S.W.2d 657, by this court.

The provisions of Art. 62, V.A.P.C., were applicable, and authorized a punishment of ten years.

Petitioner , having served in excess of ten years, is entitled to his writ and to discharge.

The petition for writ of habeas corpus is granted and petitioner is ordered released from further confinement under the life sentence.


author: WOODLEY, Presiding Judge.

text:
    Ambous HENDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40780.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1967.
    Raffaelli, Lee & Hawkins, by Sidney Lee, Texarkana, for appellant.
    Charles E. Hughes, County Atty., Texar-kana, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is transporting whiskey in a dry area; the punishment, a fine of $100.

The grounds of error set forth in appellant’s brief all relate to the question of whether the state’s evidence was illegally obtained as the result of a warrantless search without probable cause.

The complaining witness was Inspector McVay of the Texas Liquor Control Board, by whose testimony it was shown that appellant was stopped on Main Street in Texar-kana, Bowie County, about 11 A.M. at which time he was traveling alone in an automobile with a gallon jug of moonshine whiskey beside him.

It was stipulated that Bowie County was a dry area.

As to probable cause, McVay testified that at about 10 A.M. he received information by telephone from an informer who told him that appellant had gone over in Arkansas to bring back some moonshine whiskey and he would be either coming through Sand Flat, over on State Line, or would be coming down Highway 67 and State Line; that he went over close to State Line— “what they call Sand Flat,” and waited for him and stopped him about 11 A.M.

The Inspector further testified that he had been stationed at Texarkana about 7 years; that he had arrested appellant on previous occasions, and had stopped him twice previously and found nothing; that he had heard the voice of the informer on the telephone, knew and had talked with him personally and knew him to be a credible person and that said informer had given him information concerning bootleggers on prior occasions that had proved to be correct.

Testimony was also elicited from the witness to the effect that no warrant was obtained for appellant’s arrest and that other officers were watching for appellant, one somewhere on Highway 67 and another near appellant’s home.

Asked if there was any reason why he could not have filed a complaint and obtained a warrant prior to the time he went looking for appellant, McVay answered: I figured it would be too late if I did that.”

Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, is cited by appellant. We do not construe the Supreme Court’s decision in that case as authority for holding that McVay did not have probable cause to stop appellant and to seize the gallon of whiskey sitting beside him.

McClain v. State, 165 Tex.Cr.R. 545, 309 S.W.2d 456, cited by the state, supports our conclusion that probable cause was shown.

The judgment is affirmed.


text:
    Bobby Joe MANN, Appellant, v. The STATE of Texas, Appellee.
    No. 40781.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1967.
    Clyde C. Bishop, John J. Watts, Odessa, for appellant.
    Richard M. Price, Dist. Atty., Abilene, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is burglary with a prior conviction alleged for enhancement; the punishment under Article 62, Vernon’s Ann. P.C., twelve years.

Sometime on the night in question, a pane of glass in the stationary portion of a rear window of a filling station was broken, the shattered glass was removed and piled on the ground beneath the window, and entry was gained thereby. Some $30.00 was taken from the filling station. Appellant’s fingerprints were found on the glass which was piled below the broken window, and on that evidence the jury found appellant guilty.

Appellant’s sole ground of error is his challenge as to the sufficiency of the evidence.

The owner of the filling station testified that the window was not broken prior to the night in question. The investigating police officers testified that appellant’s fingerprints were found on the largest piece of glass recovered, and that the piece was pulled from the putty holding it in place and then placed on the ground. He further testified that the prints “were close to the edge of the glass. There was one print on one side of the glass and two fingerprints on the other side of the glass ⅝ * * it

“Q. (By District Attorney) All right. And were you able to determine which hand and which fingers were on the glass?
A. Yes, sir.
Q. All right. In your opinion, which were they?
A. In my opinion, one fingerprint was his (appellant’s) right thumb.
Q. All right.
A. And the other two fingerprints were his right index finger and his right middle finger.
Q. Now, could you make fingerprints like that on the glass while it was in the window before it was broken out?
A. Do what now?
Q. Would it be possible to place your hand around that piece of glass while it was still intact?
A. Oh, yes; yes, sir.
Q. I mean, while it was still in the window ?
A. In the window, yes, sir.
Q. You could do that?
A. Yes, sir, because the other portion of the window had been broken out.
Q. I mean without it being broken out?
A. Oh, no; no, sir.
Q. You couldn’t? Part of the window would have to be broken out, would it not?
A. That’s right for these fingerprints to be in the position they were in, yes, sir.
Q. All right, In other words, you couldn’t walk up there with the window being intact and grasp it in the manner that would leave the fingerprints that you have described ?
A. No, sir.”

In Grice v. State, 142 Tex.Cr.R. 4, 151 S.W.2d 211, we said:

“(W)here the evidence * * * shows the fingerprint found at the scene of the crime was left there by the criminal at the time the crime was committed, thereby excluding the hypothesis that it might have been placed there innocently prior to or subsequent to the commission of the crime, and the evidence further shows that said print is identical with known prints of the accused, that such evidence satisfies the law and excludes every reasonable hypothesis save guilt of the accused.”

See also Gonzales v. State, Tex.Cr.App., 399 S.W.2d 360, Briones v. State, Tex.Cr.App., 363 S.W.2d 466, and Bingle v. State, 144 Tex.Cr.R. 180, 161 S.W.2d 76. The testimony of Officer Eoff, who was qualified as an expert in fingerprint identification, clearly establishes the connection between the presence of the fingerprints on the pieces of glass and the commission of the crime, and further identifies the fingerprints on the glass as those of the appellant. The test established in Grice v. State, supra, was met by the State.

Appellant relies on Caudillo v. State, 167 Tex.Cr.R. 147, 318 S.W.2d 891, and points attention to the fact that he was employed at a fruit stand near the station and had been in the portion of the station where the window was broken on frequent occasions. In Caudillo, the only evidence linking appellant to the crime was his fingerprints found on the screen of a window which had been raised to gain entry and commit the crime. The presence of appellant’s prints was explainable in that appellant had previously helped paint the house in question. We said:

“[I]n order to warrant a conviction on circumstantial evidence, there must be proof, to a degree of certainty greater than a mere probability or strong suspicion, tending to establish that the party charged was the person who committed the offense or was a participant therein. * ⅜ ⅜»

Here it is clear, as it was in Grice v. State, supra, that the prints must necessarily have been placed on the pane by the person who removed the same after the breaking.

The facts in the case at bar are more closely analogous to the facts in Grice, supra, in that the testimony of fingerprint experts established that the presence of the fingerprints of the appellants in both cases was inconsistent with the claim of appellants’ innocence due to the particular location of those prints.

It is apparent by their verdict that the jury resolved the issue of alibi raised by appellant’s testimony and that of his relatives and neighbors. Appellant admitted five prior convictions for filling station burglaries.

Finding the evidence sufficient to sustain the conviction, the judgment is affirmed.


text:
    Flavio ENRIQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 40744.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.

      Mark A. Troy, Jr., Dallas, W. John Allison, Jr., Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., Charles Caper-ton, Arch Pardue and Kerry FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for assault to murder with malice; and the punishment was assessed at ten years.

It is contended that the state’s attorney committed reversible error in introducing before the jury by reference and insinuation, during the cross-examination of the appellant, the fact that he had killed Roy Ochoa previous to his shooting Jesse Jara-millo as charged in this case.

During the cross-examination of the appellant this matter arose as follows:

“Q Does Jessie (assaulted party) look like one of the Ochoa boys?
“A No, sir.
“Q Well, you knew Roy Ochoa when he was alive, didn’t you ?
“Appellant’s Attorney: Your Honor, we obj ect to that.
“The Court: Well, I don’t understand.
“Appellant’s Attorney: I ask the Court at this time for a mistrial based on the State’s interjecting testimony that’s not material and prejudicial.
“State’s Attorney: He asked him if he knew Roy Ochoa when he was alive.
“The Court: Asked if he knew him, overrule the objection to that question.
“Q (By State’s Attorney) Did you know him?
“Appellant’s Attorney: You overrule our motion, too, Your Honor?
“The Court: Yes, denied.
“Appellant’s Attorney: Note our exception.
“Q (By State’s Attorney) Did you know Roy Ochoa when he was alive?
“A When he was alive?
“Q When he was alive.
“A Yes, sir.
“Appellant’s Attorney: We object, unless they can show this is material to this case.
“The Court: Overrule.
“Appellant’s Attorney: Note our exception.
“Q Did you think this might be one of the brothers or something?
“A No, sir.
“Q Did you think he might be after you?
“A No, sir, ain’t got no reason to.
“Appellant’s Attorney: Your Honor, we’ll have to object to Mr. Caperton’s speaking here in a tone for the Jury about matters that are not in evidence.
“The Court: Don’t talk loud where the Jury can hear you.
“Q Did you, are you saying you didn’t have reason to think one of the Ochoa boys might be after you ?
“A Sir.
“Appellant’s Attorney: Object to the whole line of questioning on the grounds it’s immaterial, and prejudicial.
“The Court: Overrule.
“Appellant’s Attorney: Note our exception.
“Q (By State’s Attorney) Did you have a reason to think that one of the Ochoa boys might be after you, Flavio?
“A No, sir.
“Q No reason at all to think one of those boys might be after you ?
“The Court: He said no, sir, he answered the question.
“The Witness: No, sir.
“Q (By State’s Attorney) What háp-pened to Roy Ochoa?”

The testimony reveals that after the assaulted party, age 19, and his cousin left a tavern about 12:15 a. m., they were standing facing the front of the tavern about fifty feet away, when they saw three Latin-American men walking toward them, and as they passed, the assaulted party heard a “click,” then saw a pistol in the hand of one of the men who shot him, and the three men fled from the scene; and that he had never seen these men before and never knew them.

The appellant testified that he never knew the assaulted party, never saw him at the scene of the shooting, and that as he walked from the tavern he heard a shot, began running, and then he heard other shots.

No defensive charge was submitted to the jury, there were no objections thereto, and no requested charges were presented.

On the hearing of the motion for new trial, the state’s attorney who cross-examined the appellant on the main trial, testified in part as follows:

“Q Well, I’ll ask you the question then. Did you know of your own knowledge at the time you asked the questions that the Defendant had been no-billed of the offense of murder of Roy Ochoa?
“A I did.”

There is no testimony on the trial on the merits about or referring to Roy Ochoa or the Ochoa boys except as shown by the questions propounded by the state to the appellant. By these questions the state assumed as a fact that Roy Ochoa was dead, that Ochoa’s brothers had reason to be after the appellant, and such questions reasonably inferred and insinuated that the appellant killed Ochoa. Numerous questions were asked the appellant if he didn’t have reason to think that the Ochoa boys were after him. These questions which the state repeatedly asked over objection conveyed to the jury in the nature of testimony the information that the appellant had wrongfully killed Roy Ochoa and that his brothers had good reason to be after him.

The foregoing testimony was not pertinent to any issue raised on the trial. It was reasonably calculated to prejudice the rights of the appellant before the jury, deprived him of a fair and impartial trial, and requires reversal.

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


author: O’QUINN, Justice. HUGHES, Justice.

text:
    SPRING BRANCH SAVINGS & LOAN ASSOCIATION, Appellant, v. James O. GERST, Savings & Loan Commissioner of Texas et al., Appellees.
    No. 11516.
    Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1967.
    Rehearing Denied Nov. 8, 1967.

      Jacobsen & Long, Joe R. Long, Austin, Brown, Sparks, Erwin, Maroney & Barber, Frank C. Erwin, Jr., Austin, for appellant.
    Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., Sam Kelley and Robert C. Flowers, Asst. Attys. Gen., Austin, for appellees.
   O’QUINN, Justice.

Appellant is Spring Branch Savings and Loan Association of Harris County, and ap-pellees are the Savings and Loan Commissioner of Texas, defendant in district court, and Houston First Savings Association and Benjamin Franklin Savings and Loan Association, intervenors.

' Two questions are presented by this appeal. First, do the findings of the Savings and Loan Commissioner, denying appellant’s application for a branch office in downtown Houston, have support in substantial evidence? Second, is appellant estopped to prosecute this suit because the case is a stale demand and laches precludes assertion of appellant’s right?

Appellant, with its principal office at 8224 Long Point Road in Houston, sought to establish a branch office, to be located at 720 Milam Street in downtown Houston. Appellant’s application was denied by the Savings and Loan Commissioner in an order entered February 25, 1963. On March 22, 1963, appellant filed its original petition in district court seeking judicial review of the order of the Commissioner and for mandamus to compel granting of the branch office.

The trial court heard this cause October 17 and 18, 1966, and in a final judgment October 21, 1966, sustained a plea of stale demand and laches urged by the Commissioner and intervenors. In the alternative, the court held that the order of the Commissioner of February, 1963, refusing application for the branch office, was reasonably supported by substantial evidence adduced at the trial.

Appellant’s original application was filed, the hearing before the Commissioner was held, the order of the Commissioner was entered, and petition for judicial review was filed prior to January 1, 1964, the date Article 852a, Vernon’s Ann. Civ. St., became effective. (Savings and Loan Act, Acts 1963, 58th Leg., ch. 113, sec. 1, p. 269). This appeal is governed by provisions of the prior savings and loan law found in Article 881a-l through 69, Vernon’s Ann. Civ. St., and cases decided under these statutes.

Linder Article 881a-2, Vernon’s Ann.Civ. St., the Commissioner was required to grant a savings and loan charter if, upon finding that the required minimum capital had been paid in cash and that the incorporators were of such fitness and integrity as to justify belief they would conduct an honest and efficient operation, it also appeared to the Commissioner that:

“ * * * the public convenience and advantage will be promoted by allowing such proposed building and loan association to be incorporated and engaged in business, and [that] * * * the population in the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support for the proposed * * * association.”

The same basic statutory standards governing the creation of savings and loan associations control establishment of their branch offices. Southwestern Savings and Loan Association of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917; Falkner v. Gibraltar Savings Association, Tex.Civ.App., Austin, 348 S.W.2d 467 (writ ref., n. r. e.).

In refusing appellant’s application for the branch office, following a hearing held December 18, 1962, the Commissioner in his order of February 25, 1963, found that

“The public convenience and advantage will not be promoted by the establishment of the additional office in the neighborhood proposed to be served and in the surrounding country and the volume of business there is not such as to indicate that a profitable operation is probable within a reasonable period of time.”

Since this appeal was brought pursuant to provisions of Article 881a-3, Vernon’s Ann.Civ.St., and the case law applicable to the savings and loan statutes prior to enactment of Article 852a, the Commissioner’s order is subject to judicial review under the substantial evidence rule as applied by the courts of this State to administrative orders including those of the Savings and Loan Commissioner. Gerst v. Cain, Tex.Civ.App., Austin, 379 S.W.2d 699, affirmed 388 S.W.2d 168 (Tex.1965).

For the reason that if the trial court was correct in sustaining the plea of stale demand and laches, the question of substantial evidence need not be decided, we give attention first to deciding whether the doctrine of laches is applicable to this case.

In support of the trial court’s action sustaining the plea of stale demand and laches, appellees argue change of conditions and a want of diligence on the part of appellant in prosecuting this suit to set aside the Commissioner’s order. Ap-pellees urge that appellant should be relegated to the Commissioner to allow “the Commissioner to consider the application upon the basis of conditions actually existing, instead of upon the basis of purely fictitious conditions.” Appellant denies it unreasonably delayed in asserting and prosecuting its claim in court and contends appellees failed to show that delay resulted in a good faith change of position to their detriment.

After the Commissioner denied appellant’s application for a branch office February 25, 1963, appellant brought suit for judicial review the following month, on March 22. The Commissioner answered April 8, and Benjamin Franklin Savings and Loan Association intervened June 28, 1963. The intervention of Houston First Savings Association was not filed until April 25, 1966.

On April 6, 1963, L. D. Cain and others filed application with the Commissioner seeking a charter for Metropolitan Savings and Loan Association to be located in downtown Houston. On June 21, 1963, American Savings and Loan Association applied to the Commissioner for a branch office to serve downtown Houston. The Commissioner denied both applications, the Metropolitan order being in July and the American order in November, 1963. Both Metropolitan and American filed and successfully prosecuted appeals in court.

With the two cases of Metropolitan and American pending, appellant, acting on advice of counsel representing the association, decided to await the outcome of the other two cases before proceeding with its own appeal. The Metropolitan appeal became final March 10, 1965, after decision by the Supreme Court in Gerst v. Cain, 388 S.W.2d 168 (Tex.1965). The American appeal was final in April, 1965, with disposition by the Supreme Court of application for writ of error from decision of this Court in Gerst v. American Savings and Loan Association, Tex.Civ.App., Austin, 384 S.W.2d 352 (writ ref., n. r. e.).

The attorney in active management of appellant’s appeal withdrew from the case, within a short time after the Metropolitan and American cases became final, to accept a place in Washington on the staff of the President of the United States. Management of the case was left in the hands of an associate who died in November, 1965, following which the present attorneys were employed by appellant to prosecute this cause.

In January, 1966, appellant, through its attorneys, obtained a trial setting for March 21, 1966. On March 11, the Attorney General as counsel for the Commissioner, advised the trial court in writing that the case had been reset by agreement for May 2, 1966. On April 25 Houston First Savings Association intervened and aligned itself in support of the order of the Commissioner. Shortly thereafter, on April 29, Houston First and the Attorney General filed motion for continuance. The motion was granted and the cause was reset for trial June 6, 1966.

On June 1 the Attorney General filed a first amended original answer and pleaded for the first time stale demand and laches. When the cause came to trial June 6, both intervenors, Houston First and Benjamin Franklin Savings, interposed a second motion for continuance. The motion was granted by the trial court, and subsequently the cause was set down for trial October 17, 1966, when the case was beard.

After the close of evidence, Houston First and Benjamin Franklin Savings filed jointly, on October 21, amended pleas in intervention adopting the Commissioner’s plea of stale demand and laches. The trial court entered its judgment the same day, October 21, 1966.

From April, 1963, when the Attorney General answered appellant’s suit, until final disposition of the Metropolitan and American cases, two years elapsed during which appellant did not actively pursue its cause. Appellant delayed this period on advice of its attorney who recommended waiting to see what the courts would decide in the Metropolitan and the American cases.

Following this two-year period, and until the case was heard in district court about eighteen months later, the delays occurring appear to have been beyond the control of appellant. After the attorney in charge of the case withdrew in 1965 and upon the death of the attorney who succeeded him in the case, appellant employed the present attorneys who promptly set about to bring the case to trial. Any delay in prosec-cution of appellant’s case for the next ten months was occasioned by appellees through postponement and continuances. The cause was finally heard in October, after being set for trial four times at the instance of appellant, beginning in January.

Appellees point out that when the Commissioner heard appellant’s application for a location in downtown Houston in February, 1963, there were seven savings and loan offices operating in downtown Houston, and that when the case was tried in 1966, there were nine such facilities in downtown Houston. The increase, of course, was occasioned by the addition of Metropolitan and American, whose applications, as already pointed out, were considered and denied by the Commissioner in 1963 shortly after appellant was refused a branch office.

“But the trial court,” appellees argue, “was required to test the validity of the Commissioner’s order upon the basis of the facts that existed when the order was entered and for that reason could give no consideration to the change in condition caused by the two additional offices.”
“On the other hand,” appellees assert, “when the Commissioner acted he could not and did not consider the change in conditions caused by the opening of two additional offices because at that time such offices were not in existence. In other words, neither the Commissioner nor the trial court has ever considered whether or not appellant is entitled to the branch office sought by it considering the fact that there are nine savings and loan facilities in the central business district of Houston.”

In addition to the change from seven to nine installations, appellees argue that conditions in the savings and loan industry underwent a radical change between February, 1963, when the Commissioner acted, and October, 1966, when this case was tried in district court. Testimony was introduced to show that 1963 was a period of rapid growth and a time when money was readily available, but that in 1966 the period of growth had come to a halt and “money was tight.”

It was because of these changed conditions, appellees argue, that the trial court “abated appellant’s suit, thereby relegating appellant to the Commissioner.”

We do not agree that these changed conditions pointed out by appellees are properly chargeable to appellant so as to constitute proof of the affirmative plea of stale demand and laches.

Any changes in conditions subsequent to the order entered by the Commissioner in February, 1963, would be irrelevant to the issue of whether the order was reasonably supported by substantial evidence. On the question of whether the doctrine of laches is applicable, the changed conditions shown by appellees relate to economic growth and changes in the city of Houston, and are unrelated to what appellant did or failed to do that could have caused appellees to change their position to their detriment.

Evidence of changed conditions in downtown Houston, between the period in which the Commissioner denied appellant’s application in 1963 and the time of trial in 1966, actually shows remarkable growth in the banking and in the savings and loan industries, favorably affecting the two inter-venors.

In this period deposits in downtown banks increased by $288,000,000. Between the time of the Commissioner’s order and the beginning of 1966 savings in Harris County savings and loan associations increased $327,000,000, from $431,000,000 to $758,000,000. Savings in Harris County banks went up $250,000,000 in a two year period ending in June, 1964.

The workday population in downtown Houston increased by 30,000 persons between early 1963 and October, 1966, when the case was tried, being a gain from 170,-000 to 200,000 workers. Off-street parking spaces rose 4,000, from 30,000 to 34,000, in this period. Downtown office space at the beginning of 1963 was 17,700,000 square feet, and at the time of trial these accommodations had grown by 2,200,000 square feet to a total of 19,900,000. More office space was constructed in downtown Houston from 1955 to 1966 than had been constructed in the entire history of Houston prior to 1955.

Changed conditions in the savings and loan industry, appellees assert, support the action of the trial court in sustaining the plea of laches.

William George Richards, chief executive officer of Benjamin Franklin Savings, testified regarding changed conditions in the industry since 1963. It was his testimony that although there had been increased competition for savings from the banking industry, this competition in 1966 had “largely been erased” through governmental regulation. Benjamin Franklin Savings on a capital investment of $1,150,-000 made a net profit in 1965 of $523,000, being a return in excess of 45 percent on the investment for that year. Accounts of this association increased from 13,931 late in 1962 to 16,914 by July, 1966, a growth of 2,983 accounts. Savings deposits of the association in the same period increased $19,463,000, a growth from $26,647,000 to $46,140,000. In the same period capital, undivided profits, surplus and loss reserves rose $1,420,294, from $957,573 to $2,377,867.

Houston First Savings, the other inter-venor, from early 1963 to the middle of 1966 increased its savings accounts 6,991, a growth from 17,960 to 24,951 accounts. The savings deposits of this association in the same period achieved a gain of $48,-908,000, an increase from $81,594,000 to $130,502,000. Growth in the association’s capital, undivided profits and surplus and loss reserves in this period was $6,171,000, a climb from $4,853,000 to $11,024,000.

Appellees rely upon Burlington Truck Lines v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207, in arguing that changed conditions support remand of this cause to the Commissioner for further consideration. In that case the Supreme Court found that the Interstate Commerce Commission in its order did not state any rational connection between the facts it found and the choice of remedies made in disposing of the application and the order was not supported by substantial evidence. The Court noted that Congress about four months after the Commission’s order had passed a statute outlawing the type of agreement involved in the case, making the order of the Commission moot in that case. The Court remanded the case to the Commission for proceedings consistent with the opinion.

In the case before this Court there has been no legislation rendering the order of the Commissioner moot. There are no intervening facts, created or brought about by the parties, the courts, or the legislature, requiring or justifying that this case be remanded to the Commissioner for further consideration in the light of changed conditions. The Burlington Truck Lines case is not in point.

The basic rules controlling application of the doctrine of laches by the courts of this State have been settled by the Supreme Court in three cases, the most recent of which was decided in 1964. Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167 (Tex.Com.App., opinion adopted by Sup.Ct., 1944); Gulf, Colorado and Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1959); City of Fort Worth v. Johnson, 388 S.W.2d 400 (Tex.1964).

In City of Fort Worth v. Johnson, supra, the Supreme Court held that laches is an affirmative defense, with the burden on the pleader to prove the essential elements. (388 S.W.2d 400, 403, col. 2). The Court described laches as being akin to the defense of estoppel, and, citing Culver v. Pickens, supra, stated two essential elements of laches:

“Two of the essential elements of laches are (1) unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay.” (388 S.W.2d 400, 403, col. 2).

The burden to prove both these elements was on appellees, they having asserted the doctrine as an affirmative defense. If they failed to prove either element, this defense fails.

It is apparent under the rule announced by the Supreme Court that there must be an unreasonable delay by one party that has worked injury to another party. In this case there is want of proof adequate to show inconvenience, prejudice, or injury to either the Commissioner or the inter-venors, and the mere lapse of time will not raise a presumption of such detriment.

We can find nothing in the record tending to show that the Commissioner or the intervenors have changed their positions to theft- detriment by reason of any delay occasioned in this cause. We believe there is no basis upon which any of the appellees could have concluded at any point that appellant had abandoned its effort to procure a branch office in downtown Houston.

On the other hand, appellant was able to show that it was not solely at fault for the delays that did occur. In support of the argument that appellant did not prosecute this appeal with diligence, appellees rely upon several cases in which the courts applied the doctrine of laches or stale demand. In each of these cases, the delay was shown to be the sole fault of the party bringing the suit and in each case the delay itself was the cause of the other party’s detriment.

In Flanagan v. Smith, 21 Tex. 493, suit on a promissory note was brought in 1851, and plaintiff waited “nearly five years” before demanding judgment. The principle announced in this case has been summarized as follows:

“ * * * where a plaintiff in a case pending on the docket of a court fails to take action therein for four years, in which time the cause of action would be barred by limitation, the defendant should be held to be released from further attention to or defense of the case.” Brooks Supply Co. v. Hardee, Tex.Civ.App., Beaumont, 32 S.W.2d 384, 386, col. 2 (writ ref.).

In Reese v. Carey Bros., Tex.Civ.App., Amarillo, 286 S.W. 307 (writ dsmd.), claim to an interest in an oil development was withheld awaiting outcome of the enterprise in which others were spending money and incurring obligations for the benefit of the project. After matters took a decided turn in favor of claimant, the interest was asserted. The court held that the claim should have been asserted at the earliest possible time, especially since it was a mining property of fluctuating character in which the claimant had deliberately avoided risks of the enterprise.

An injunction suit was filed in Stoewer v. Porcelain Enamel, 199 Md. 146, 85 A.2d 911 (1952) in 1939, but plaintiff “allowed the matter to rest until 1950,” at which time the whole business of the plant plaintiff complained of had changed. The plant was under different management and its business was not the same, nor was the plant engaged in the practices alleged to be a nuisance.

A contractor, claiming to be the actual low bidder on a construction job, brought suit in New Jersey (Somers Const. Co. v. Board of Education, D.C., 198 F.Supp. 732), filed for a preliminary injunction which was denied, and before final hearing and opinion on the merits were reached, the contractor voluntarily withdrew his complaint. He waited until another contractor had completed the construction before seeking money damages from the school board. The court held that it would “not allow a contractor who is aware of an improper award to voluntarily and intentionally delay in seeking determination as to the validity of such an award and only after construction is completed seek money damages.” (198 F.Supp. 732, 737).

In none of these cases can we find authority controlling the facts of this case. Appellees have not shown that appellant delayed unreasonably in asserting its rights, nor have they made proof of any change of position by the Commissioner or the intervenors to the detriment of any of them because of the delay.

We sustain appellant’s assignment that the trial court erred in sustaining appellees’ affirmative plea of stale demand and laches.

Whether the Commissioner’s order, denying appellant’s application for a branch office in downtown Houston, has support in substantial evidence must he decided by this Court under the principles of review prescribed by the Supreme Court of Texas in Gerst v. Cain, 388 S.W.2d 168 (Tex.1965); Gibraltar Savings and Loan Association v. Falkner, 371 S.W.2d 548 (Tex.1963) ; and Phillips v. Brazosport Savings and Loan Association, 366 S.W.2d 929 (Tex.1963).

This Court will presume that the order of the Commissioner was valid. The discretion of this Court may not be substituted for that of the Commissioner. This Court must sustain the Commissioner if his order is reasonably supported by substantial evidence. The evidence that this Court may consider under the presumption of validity includes proof made at the trial of facts in existence at the time the Commissioner entered his order, whether or not the Commissioner is shown to have been aware of those facts. Phillips v. Brazosport Savings and Loan Association, supra, 366 S.W.2d 929, 936, cols. 1 and 2, 937, col. 1.

As previously stated, the Commissioner in 1963, following his order in February denying appellant’s application for a branch office in downtown Houston, also denied American Savings a branch office in downtown Houston in July and refused a charter to Cain and others to establish Metropolitan Savings in downtown Houston in November. The action of the Commissioner later was overturned by the courts with respect to American Savings and Metropolitan Savings. These cases were decided upon facts existing in downtown Houston in July and November, 1963, and the case before this Court must be decided upon facts existing in downtown Houston in February of that year.

The Supreme Court in Gerst v. Cain, supra, observed that “Each substantial evidence case must be decided on its own facts, and the facts in two such cases will rarely be the same.” 388 S.W.2d 168, 171, col. 2.

Certain facts, however, with reference to the economic growth of Houston are common to all three cases growing out of the Commissioner’s orders in 1963. In the American Savings case, supra, this Court observed that “ * * * the evidence indicates phenomenal growth of all associations concerned, whether applicant or protestant, which are located in a city such as Houston whose growth in the past has been equally phenomenal and whose projected growth portends the same.” (Emphasis added) 384 S.W.2d 352, 357, col. 2. In the Metropolitan Savings case (Gerst v. Cain, 379 S.W.2d 699, Tex.Civ.App., Austin, affirmed in 388 S.W.2d 168), this Court declined to recite or discuss “the mass of evidence produced * * * bearing on the population, growth or economic status of Houston, except to say that it appears to he phenomenal." (Emphasis added) 379 S. W. 699, 701-702.

Ralph Ellifrit, formerly director of city planning for the city of Houston, qualified at the trial of this case as an independent planning consultant, and testified concerning the growth and development of Houston, its population trends, its land use, patterns and trends, and economic base. It was his testimony that in 13 years prior to 1963 Houston’s population increased by 533,876, and that during the last three years of this period the growth was 107,701 persons, or more than twenty percent of the total growth for the 13-year period.

From prepared exhibits, Ellifrit testified about the freeway system in Houston and the effect of the system upon the growth of downtown Houston. It was shown that the central loop of Houston’s freeway system in early 1963 afforded traffic access to and from the central business district on all sides. The freeway system so greatly improved traffic access that in 1963 the central business district had a great growth potential. It was Ellifrit’s testimony that downtown Houston in early 1963 had, and in the future will have, the best access by automobile of any city in the United States within the same population bracket with Houston. Ellifrit testified that for this reason the Houston central business district will for many years remain dynamic, in contrast to other cities where the downtown streets are narrow and not connected to a satisfactory system of freeways leading to other areas of the city. All of the streets in the Houston central business district are parts of a one-way street system, with most of the streets feeding into or out of one of the major expressways.

The site proposed for appellant’s branch office is at the corner of Rusk and Milam Streets, two blocks west of Main Street, in the central business district of Houston. Rusk Street affords access to Memorial Freeway on the east, and Milam Street ties into the freeway system to the north and extends south and feeds into the Southwest Freeway. All of the adjacent streets, Travis one block east, Louisiana one block west and Smith two blocks west, tie into the Houston freeway system. Ellifrit testified that left-turn movements may be made easily, since all streets are one-way, with the result that the proposed location for appellant’s branch office is near the center of downtown traffic flow emanating from the freeways into downtown Houston.

With reference to growth in office building space in downtown Houston, Ellifrit testified that between 1955 and early 1960 a total of 1,560,000 square feet of office floor space was added to that part of downtown Houston surrounding the proposed location, and by early 1963 an additional 3,200,000 square feet had been constructed. Included in the newest increase was the Tennessee Building with 33 stories containing 950,000 square feet of floor space and the Federal Building with 450,000 square feet. The Federal Building with 1400 employees, is located one and a half blocks from the proposed site, and the Tennessee Building is two blocks south of the location.

From a study of parking spaces available in February, 1963, in the area surrounding the proposed branch office, Elli-frit found that in eight blocks along Rusk Street nearest the proposed site, 1,279 parking spaces were available. As a result of the parking spaces in the area and movement of people from parking sites to the central shopping district on Main and Travis Streets, Ellifrit concluded that appellant’s proposed site was located in the central business area with a large foot-traffic passing the location. He also found that foot traffic flowed past the site from the Federal Building.

Future growth of the central business district in Houston, as viewed by Ellifrit and the city planning department in 1963, is best described by the following testimony :

“Q (by counsel) * * * as of February, 1963, according to the studies which you had made of the City of Houston and the downtown area, had you formed a judgment as to whether or not the downtown area had peaked out in growth as a whole or whether it would continue to develop or did you have any judgment about that at all, as of that time?
A (Ellifrit) * * * No, we thought and felt that it had every reason to keep on growing because, in the first place, the trends of growth have been continuous almost, except for the normal peaks and valleys that you find in economic conditions, and also as the floor area tends to be flooded a little and then office space becomes scarce; and we felt that the trends and growth of the entire metropolitan area, which would normally be reflected in the Central Business District, that it would continue to grow, and we felt because of the access to the Central Business District and its wide street system and the fact that for some years to come traffic access, ingress and egress, will actually improve, would cause the central area and the Core Area to continue to grow and expand. And this has been borne out since that time.”

Further testimony as to growth and economic development of Houston was received at the trial from Dr. Francis S. Yeager, who qualified as an independent economic expert. It was shown that Dr. Yeager, professor of economics and finance at the University of Houston, had engaged in independent consulting work in connection with chartering of banks and savings and loan associations for a number of years, and had conducted ten economic feasibility studies in the past five years.

Dr. Yeager testified that in 1946, after the close of World War II, the city limits of Houston incorporated about 70 square miles, which by 1960 had grown to 350 square miles. Dr. Yeager defined the Houston downtown area as the region between Gray Avenue on the south and Buffalo Bayou on the north, bounded on the east by Crawford Street and on the west by the large freeway interchange. “In other words,” Dr. Yeager testified, “that is, in my view, where the action is in downtown Houston.”

Dr. Yeager considered the downtown area in 1950 to consist of about 100 square blocks, increasing to 160 or 170 blocks in 1958. The area described by Dr. Yeager as downtown Houston “where the action is” comprises 225 square blocks.

Dr. Yeager placed the workday population of downtown Houston in 1950 at 80,000 to 85,000 persons, which increased to 116,000 by 1958. In 1962 the workday population reached approximately 170,000, an increase of more than 50,000 downtown workers in five years.

Off-street parking spaces in 1950 totaled 11,000 in downtown Houston, increasing to more than double that number in 1958, with 22,300 spaces. In 1962 the number of spaces exceeded 30,000. Between 20,000 and 30,000 cars were parked during all or part of the day in downtown Houston in 1950, and eight years later, in 1958, this number had climbed to 40,000 to 45,000. Dr. Yeager estimated the parked cars in 1962 to be about 70,000. By prepared exhibits, appellant showed all downtown parking in the vicinity of its proposed branch office and demonstrated that about 30 percent of downtown parking would be conveniently situated with respect to appellant’s location to serve prospective customers.

Dr. Yeager testified extensively as to other economic indicia relative to the growth in the Houston economy and its effect on the savings and loan industry.

This portion of Dr. Yeager’s testimony is condensed in the following twelve excerpts from appellant’s brief:

1
“As of December 31, 1950, the total personal financial savings in Harris County amounted to $1.25 billion; by 1955, they totaled $2.1 billion; and by the end of 1960, they had grown to $3.2 billion. At the end of 1962, total personal financial savings amounted to $3.9 billion, a dramatic increase of $1.8 billion since 1955.”
2
“Plaintiff’s Exhibit 6 shows the increase in deposits in the downtown Houston banks. In 1955, there was approximately $1.7 billion in deposits, but in December, 1963, those deposits had grown to $2.6 billion, an increase of almost $1 billion.”
3
“Plaintiff’s Exhibit 7 shows the growth in demand deposits and the growth in savings deposits of all Harris County banks. * * * Demand deposits of individuals, partnerships, and corporations grew from $1.1 billion in 1954 to $1.45 billion in 1963. Savings deposits grew from $150 million in 1954 to $775 million in 1963. This dynamic increase in savings in banks of $600 million in nine years * *
4
“Those impressive increases in demand deposits and savings deposits were irrefutable proof of Houston’s rapidly growing population, together with rising family incomes and increasing employment in the city. In December, 1958, there were approximately 483,000 people employed in Harris County. By December, 1962, this had increased to approximately 560,000 people.”
5
“ ‘Disposable income’ is the income remaining to persons after payment of income taxes. Dr. Yeager estimated disposable income in Harris County at $2.3 billion per year in 1958. By 1962, this had risen to $3 billion per year.”
6
“Downtown office space showed explosive growth in the years in question. * * * In December, 1955, there were only 9 million square feet of office space in downtown Houston. At the end of 1960, there were approximately 10 ½ million square feet. However, only two years later, as of December, 1962, 7.7 million more square feet had been added to the office space in downtown Houston.”
7
“Plaintiff’s Exhibit 13 shows the new office space built in downtown Houston from 1950 to 1959, from 1960 to 1962, and from 1963 to 1966. The bars on the chart show again that from 1960 to 1962, there were more than 7 million square feet of new office space constructed in downtown Houston, which was more office space than was constructed in downtown Houston from 1930 to 1959.”
8
“The fact that the new office space constructed in downtown Houston from 1960 through 1962 was greater than all of the office space constructed in downtown Houston during the previous thirty years is dramatic and convincing evidence of the explosive growth in downtown Houston immediately prior to the order of refusal issued by the Savings and Loan Commissioner in this case.”
9
“The dramatic surge in growth in the Houston economy is reflected in the growth of Harris County savings and loan associations.
“Plaintiff’s Exhibit 8 * * * shows the growth in total savings in Harris County savings and loan associations from 1935 through 1965. In 1952, there were $44 million in savings deposits in savings and loan associations in Harris County; in 1955, there were $97 million; in 1958, there were $170 million; in 1960, $263 million. As of December 31, 1962, there were $431 million. Although savings deposits in Harris County savings and loan associations increased spectacularly by $334 million from December, 1955, to December, 1962, there were still only seven savings and loan facilities in downtown Houston in December of 1962, just as there had been seven savings and loan facilities in downtown Houston as of December, 1955.”
10
“All of the foregoing evidence indicated to Dr. Yeager that the economy in Houston and Harris County had grown at a much faster rate than had downtown savings and loan facilities. In his opinion, the growth in savings and loan deposits, while spectacular, has in no wise satisfied the public need for additional savings and loan offices when one considers the total personal savings available in the expanding economy of Harris County and the dynamic growth in savings in commercial banks.”
11
“In Dr. Yeager’s view the principal tool that savings and loan companies have with which to achieve growth is the location of their offices in places that make them convenient to the people they are trying to serve. In view of economic conditions as they existed in Houston and Harris County in February, 1963, Dr. Yeager testified that the public convenience and advantage would have been promoted by allowing appellant’s proposed branch office to be placed at the corner of Rusk and Milam. There were no associations located on Milam Street at that time, and there was none at the time of the trial. There were no associations located on Louisiana Street at that time, and none at the time of the trial.”
12
“Based upon the foregoing economic data, it was Dr. Yeager’s opinion that the population in the neighborhood of the place where this office was to be located and in the surrounding country afforded a reasonable promise of adequate support for the proposed facility at the proposed location in February, 1963. He stated that the statutory phrase ‘the neighborhood and surrounding country’ includes all of appellant’s depositors who have business coming into town on the freeway system. The site was picked in relation to the parking lots and in relation to the feeder streets that feed into and out of the downtown area to make it convenient and easy for appellant’s present customers to do business at the downtown office. He stated that the phrase ‘neighborhood and surrounding country’ also included the thousands of downtown office workers who use the neighborhood during the day while there are no savings offices on Milam Street or Louisiana Street or Smith Street, and none on Rusk Street. The downtown population in 1962 was large and growing. It was large whether it was measured in terms' of area or whether it was measured vertically in terms of people in office buildings on Milam, Louisiana, and Travis Streets. Thus, the proposed savings office would be serving the convenience of the people ‘in the neighborhood and the surrounding country.’ ”

In February 1963, when the Commissioner’s order was entered denying appellant’s application, five savings and loan associations and two branch offices, a total of seven savings facilities, were operating in downtown Houston. The nearest office to appellant’s proposed site was Benjamin Franklin Savings, one of the intervenors, with an office on Travis Street, about one to one and a half blocks from the proposed location. The other intervenor, Houston First Savings, had its office on Fannin Street, about five blocks from appellant’s proposed site.

Through James Lammers, executive vice president of appellant association, appellant introduced evidence of growth and vigor of the savings and loan associations in downtown Houston. It was shown that figures were not available with regard to the two branch offices in downtown Houston, but testimony as to the five main savings and loan offices was adduced through exhibits and an officer of one association.

The Lammers’ testimony, shown by exhibits, may be summarized in part as follows :

“Association Savings Deposits Reserves
Dec. 1957 Dec. 1962 Dec. 1957 Dec. 1962
Benjamin Franklin $ 6,000,483 $26,641,277 $ 300,876 $ 957,672
Houston First (12-58) 41,244,000 80,829,727 2,821,056 5,018,563
San Jacinto 1,609,759 16,538,176 220,075 770,069
Home Savings 3,799,578 13,769,162 326,246 636,391

With respect to all the above listed associations, ‘reserves’ represent permanent reserve stock of the association, surplus, loss reserves, and undivided profits. The generic term ‘reserves’ is used to denote the capital structure of the association.”

The summary based on the Lammers’ testimony included four of the five principal savings offices in downtown Houston. The fifth association, Surety Savings Association, was the newest savings facility in downtown Houston in February, 1963, having commenced business March 28, 1962. J. Keith Lewis, president of Surety Savings, testified that by the end of February of the following year, the association had 1,509 savings accounts, representing total deposits of $4,222,410.14. By the end of 1963, Surety Savings had 2,855 accounts, aggregating $7,193,841.62 in savings deposits. At the close of 1965, savings deposits totaled $14,415,355.03. At the close of business for 1962, the capital, undivided profits, surplus and loss reserves, referred to in general as “reserves,” amounted to $449,527.15.

Appellant argues that the testimony of Lammers and Lewis demonstrates that all savings and loan associations having main offices in downtown Houston were in a strong financial condition in February .of 1963. Appellant avers that from this evidence the associations were shown to have had dramatic, even spectacular, growth in savings during the five-year period prior to appellant’s application and that all five associations had substantially added to their retained reserves.

The two intervenors, Benjamin Franklin Savings and Houston First showed substantial profits - for years immediately preceding appellant’s application. Benjamin Franklin showed a profit of $130,832.53 in 1961 and $65,189.27 in 1962. Houston First had a net profit of $470,606 in 1962. Richards, president of Benjamin Franklin, testified that in February, 1963, his association had just gone through a period of strong and vigorous growth, with $26,000,-000 to $27,000,000 in deposits, a profitable operation, and adding, as always, to its reserves, and that as far as he knew the other savings associations operating in downtown Houston were in a strong financial condition.

Lammers, executive vice president of appellant Spring Branch Savings, testified that the association commenced business in June, 1957, with its home office about nine to ten miles west of downtown Houston. The proposed site for its branch office was chosen because of its convenient location in the downtown traffic pattern, with the major traffic arteries from west, southwest, and northwest leading into the downtown area near the proposed location. Lammers stated that much of the population in the area surrounding appellant’s home office is composed of junior executives employed in downtown Houston, and that many of the housewives living in the home office area shop in the downtown area. The proposed downtown location would serve the convenience of appellant’s present customers who work or shop downtown.

At the beginning of 1963 appellant had $10,300,000 in savings deposits, acquired in four and a half years of operation. Appellant during this period had established one branch office in Houston which had been a profitable operation. It was the opinion of Lammers that the proposed branch office in downtown Houston would offer services of the association to the public as a whole in the downtown area because its location was readily accessible to the principal business area downtown and because the location was easily reached from many parking areas in downtown Houston. Both Lammers and Richards testified that Benjamin Franklin Savings prior to 1963 acquired a site five blocks south of its location on Travis Street as a future new home office, at a cost, Richards stated, of about one million dollars.

It was shown at the trial that Benjamin Franklin Savings maintained office hours from 9 o’clock a. m. until 4 o’clock p. m., Monday through Friday. Appellant operates Monday through Friday from 8:30 o’clock a. m. to 5 o’clock p. m. and on Saturday is open from 8:30 a. m. to 3:30 p. m. Appellant proposes the same hours for its branch office. This difference in hours of operation, appellant contends, shows that public convenience and advantage would be greatly served by appellant’s proposed branch office, even if Benjamin Franklin Savings did not move to its new location five blocks south.

Although Benjamin Franklin Savings is the downtown association whose office is located nearest to the proposed location of appellant’s branch office, this intervenor declined to inject the issue of harm in this case. Richards testified that “ * * * very frankly I don’t think we would have lost any substantial amount of deposits because of the very fact that we are more convenient * * *.”

Appellant contends that the public convenience and advantage would be served by its branch office “ * * * for the further reason that Richards testified that in the last quarter of 1962, Benjamin Franklin reduced its dividend rate from four and a half percent to four percent because, at the time, the association was attracting savings at a faster rate than the association could loan money out in the type of loans they desired to make.”

“It was that lowering of dividend rates,” appellant asserts, “that caused Benjamin Franklin’s savings deposits to decrease by $3,000,000 in the last quarter of 1962.”

Lammers testified that in the last quarter of 1962 appellant was paying four and a half percent on savings deposits and continued the rate in the first quarter of 1963. “Clearly that segment of the public,” appellant argues, “which withdrew $3,000,-000 from Benjamin Franklin would have been well served by the existence of a nearby savings facility paying a rate of four and a half percent, or one half percent higher than * * * Benjamin Franklin desires to pay its savers.”

Testimony in rebuttal to the showing made by appellant was introduced through Richards of Benjamin Franklin Savings. It was his opinion that the most important source of savings in a downtown office was the people who work in the office buildings immediately adjacent to the savings and loan facility. Richards said that he had made no actual survey of the Benjamin Franklin accounts to determine whether this opinion with respect to source was accurate. It was his position that Benjamin Franklin Savings was readily accessible to people in buildings surrounding the savings office, and that this association was closer to some buildings than would be the proposed branch office for appellant. Richards recognized that appellant’s proposed branch office would not be inconvenient for persons working in the Tennessee Building, who could walk two blocks to transact business with Spring Branch Savings at the proposed location.

Richards testified that Benjamin Franklin was conveniently located for serving vehicular traffic, as well as pedestrian traffic, and in some instances he considered his association office more conveniently located to vehicular traffic than appellant’s proposed site. It was his testimony that the facilities of Benjamin Franklin Savings were adequate for receiving savings accounts and its quarters were ample and attractive. Richards said that his association offered every service and every facility that a savings and loan association could offer to the public and that Benjamin Franklin Savings was fully equipped to take care of the needs of its present customers and future customers as well. It was Richards’ view that the savings and loan offices serving downtown Houston in February, 1963, were sufficient to take care of all the business that might come to such institutions. Richards did believe that if shoppers were shopping in downtown Houston, and wanted to transact business with Spring Branch Savings at its proposed branch office, the site would be a convenient location for the shoppers.

Mere sufficiency of existing savings and loan facilities in the neighborhood to take care of the business that usually comes to such offices is not of itself adequate basis for upholding the Commissioner’s order denying appellant a branch office in downtown Houston. This Court followed this principle in reviewing an order with respect to chartering an additional bank in Chimney Rock National Bank of Houston v. State Banking Board, 376 S.W.2d 595, (Tex.Civ.App., Austin, no writ). The principle is applicable to the facts of this case with respect to the savings and loan facilities.

The general economy of the city of Houston, and of its downtown area, for the five-year period immediately preceding the Commissioner’s order, experienced phenomenal growth, with remarkable advances of population and economic resources. During this period there was no increase whatever in the number of savings and loan facilities in downtown Houston. The existing savings and loan associations in the downtown area, during this same period, prospered and grew as never before.

It was under this state of economy, growth, and potential in downtown Houston that the Commissioner found the public convenience and advantage would not be promoted by establishment of appellant’s branch “in the neighborhood proposed to be served and in the surrounding country,” and that “the volume of business there” was not such .as to “indicate that a profitable operation” was probable within a reasonable period of time.

We hold that these findings by the Commissioner in his order of February 25, 1963, are not reasonably supported by substantial evidence. We have decided that the trial court erred in sustaining the plea of stale demand and laches asserted by appellees and in finding that the Commissioner’s order was reasonably supported by substantial evidence. We, therefore, reverse and render the judgment of the district court.

Reversed and rendered.

DISSENTING OPINION

HUGHES, Justice.

The Commissioner in his answer pleaded the long delay, March 1963 to January 1966, by Spring Branch in prosecuting its suit for a judicial review of his order denying the application of Spring Branch for a branch office in downtown Houston as being detrimental to the public interest and welfare and as constituting laches and a stale demand. In its primary ruling, the trial court sustained this pleading. The majority has overturned this ruling, and it is from this action of the court that I respectfully dissent.

The only excuse offered by Spring Branch for the long delay was, on advice of counsel, that it await the outcome of the Metropolitan and Great American cases in each of which cases establishment of a downtown Houston office for a savings and loan association was upheld. It is my opinion that this is an invalid excuse.

The rule to be applied in this case is stated in Vol. 30A C.J.S. Equity § 114 as follows:

“A party is required to exercise diligence and not inaction when seeking to challenge the legality of a proceeding involving a public interest, and failure to do so constitutes laches.”

Cited in support of this statement is Somers Constr. Co. v. Board of Education, 198 F.Supp. 732, D.C.N.J.

Savings and loan associations operate in the field of public interest and are considered as quasi-public institutions. Brazosport Savings and Loan Association v. American Savings and Loan Association, 161 Tex. 543, 342 S.W.2d 747.

The interest of the public here is obvious. Just how many savings and loan associations does the public interest require in downtown Houston? This is a matter primarily for the determination of the Commissioner. When the Commissioner entered his order in this case there were seven downtown Houston savings and loan offices. Now there are nine. The Commissioner should, in the first instance, be allowed to exercise his discretion in deciding whether there should be ten savings and loan offices in downtown Houston.

Presumably, under the majority opinion, if there were a dozen denied applications for savings and loan association offices in downtown Houston on appeal to this Court under the same conditions as exist in this case we would have to consider each case separately and without regard to each other and if one application was entitled to be granted then all would have to be granted. This would create an intolerable situation and one which I have no doubt the courts would resolve in a sane manner.

If appellant had prosecuted its appeal with dispatch it would have undoubtedly been successful since the later applications of Metropolitan and Great American were finally granted. Surely, since appellant was first in time and the facts identical it would not have been unjustly treated. Due to its inaction, however, the situation is changed. It is no longer first. It is third.

I believe Spring Branch should, if it desires, renew its application to the Commissioner and establish, if it can, its right to establish a savings and loan association office in downtown Houston under conditions as they exist at the time of such renewal.

I would affirm the judgment of the trial court.

      . 388 S.W.2d 168 (Tex.S.Ct.1965).

      . 384 S.W.2d 352, Tex.Civ.App. Austin, writ ref. n.r.e.