author: STEAKLEY, Justice. SMITH, Justice.

text:
    Hank AVERY, Petitioner, v. MIDLAND COUNTY, Texas, et al., Respondents.
    No. A-11272.
    Supreme Court of Texas.
    July 13, 1966.
    Rehearing Denied Oct. 12, 1966.

      William A. Olson, Houston, for petitioner.
    Stubbeman, McRae, Sealy & Laughlin, F. H. Pannill and W. B. Browder with above firm, R. Harrell Moore, Midland, for respondents.
   STEAKLEY, Justice.

Article V, Section 18, of the Texas Constitution, Vérnon’s Ann.St., requires a division of the counties of Texas “from time to time, for the 'convenience of the people * * * into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner * * * ” This case presents for decision the question of the constitutional validity of such division in Midland County, Texas. The county was last redistricted by order of its commissioners court dated August 31, 1963, effective January 1, 1964. This suit by Petitioner, a resident property owner, taxpayer and qualified voter of Precinct No. 1, Midland County, attacks the division and seeks a redistricting. The judgment of the trial court set aside the current and previous orders dividing Midland County into commissioners precincts and ordered a redistricting of the county on the basis of equality of population in the precincts. The Court of Civil Appeals reversed the judgment of the trial court and rendered a take-nothing judgment against Petitioner. 397 S.W.2d 919. We reverse the judgments below and remand the case to the trial court for further proceedings.

The findings of the trial court in its judgment, and the decretal portions thereof, will be helpful to an understanding of our holding and disposition of the cause. We quote from the findings of the trial court:

“ * * * Further, that on the date [August 31, 1963] of such Order and at all other relevant times, Midland County, Texas, had a population of approximately seventy thousand (70,000) persons and that in excess of ninety-five per cent (95%) of such population resided in said new Commissioners’ Precinct No. 1 and that the remaining population of said County was distributed among said new Commissioners’ Precincts Nos. 2, 3, and 4. The court further finds that on the date of such Order and at all other relevant times in excess of ninety-seven per cent (97%) of the qualified voters of said County shown on the certified lists of qualified voters * * * resided in said new Commissioners’ Precinct No. 1 and the remaining qualified voters of said County shown on said lists of qualified voters were distributed among said new Commissioners’ Precincts Nos. 2, 3, and 4. Further, that on the date of such Order and at all other relevant times other pertinent factors, such as land area and taxable values of said County, were' grossly disproportionate among such new Commissioners’ Precincts of said County. * * *
“The Court further finds that on the date of such Order and at all other relevant times the County of Midland could have been divided into Commissioners’ “Precincts on a basis or plan taking into proper account population, number of qualified voters, land area, taxable values, and other pertinent factors, which would have been and which would be practical and for the convenience of the people.
“The Court further finds that in passing and approving the Order of August 31, 1963, the Defendants * * * did not give due and proper consideration to the aforementioned factors or to any other factors which should have been considered in effecting any division of said County into Commissioners’ Precincts. Further, that there was no evidence on the date of such Order or at any other relevant time justifying or supporting the division made by said Order. Further, that the principal purposes of Defendants * * * in passing and approving the Order of August 31, 1963, were for political expediency, to maintain the status quo, and to insure that the rural areas of Midland County, Texas, would continue to elect the majority of the members of the Commissioners’ Court of said County.
“The Court further finds that in passing and approving the Order of August 31, 1963, the Defendants * * * acted arbitrarily, capriciously, unreasonably, unfairly, and wrongfully, and in gross abuse of their discretion, and that such action constituted invidious discrimination. Further, that the division of said County * * * was not for the convenience of the people of Midland County * *

The decretal portions of the judgment, however, were as follows:

“IT IS, THEREFORE, ADJUDGED AND DECREED by the Court that the order of the Commissioners’ Court of Midland County, Texas, passed and approved on the 31st day of August, 1963, dividing and redistricting said County into new Commissioners’ Precincts, and all prior orders of the Commissioners’ Court of said County dividing the same into Commissioners’ Precincts, be and they are hereby, in all things, set aside.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that not later than the next succeeding July or August term of the Commissioners’ Court of Midland County, Texas, that said Commissioners’ Court * * * divide said County into four Commissioners’ Precincts for the convenience of the people of said County and in so doing to establish such Commissioners’ Precincts so that each will have substantially the same number of people.” (Italics added)

Petitioner attacks the current and prior orders of the commissioners court dividing Midland County into commissioners precincts as invalid under Article V, Section 18, Article I, Section 3, and Article I, Section 19, of the Texas Constitution and the equal protection clause of the Fourteenth Amendment to the United States Constitution, because of the gross population disparity. He argues that these constitutional provisions require equality of population in the precincts. Respondents assert, on the other hand, that Petitioner did not state or show a cause of action, or establish a jus-ticiable interest or right to bring this suit as representative of a class, because equality of population in the precincts is not required but only that the precinct division be for the convenience of the people in the terms of Article V, Section 18, of the Texas Constitution.

Petitioner as a voter in the county has a justiciable interest in matters affecting the equality of his voting and political rights. Cf. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Stovall v. Shivers, 129 Tex. 256, 103 S.W.2d 363 (1937); Dubose v. Woods, 162 S.W. 3 (Tex.Civ.App.1913, no writ hist.). We agree with the holding of the trial court that the current order of the commissioners court redistricting Midland County is not supportable under the requirements of the Texas and the United States Constitutions for the reasons stated by the trial court in its judgment findings. We are not in agreement, however, with the judgment of the trial court to the extent that it orders a redistricting of the county on the sole basis of equality of population.

Article V, Section 18, of the Texas Constitution provides:

“Each organized county in the State now or hereafter existing, shall be divided from time to time, for the convenience of the people, into precincts * * Divisions shall be made by the Commissioners Court provided for by this Constitution. * * * Each county shall in like manner be divided into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner, who shall hold his office for four years and until his successor shall be elected and qualified. The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which, shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.”

Article I, Section 3, reads as follows:

“All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”

The county is a subordinate and derivative branch of state government. Its governmental body is the commissioners court composed of the four county commissioners with the county judge as the presiding officer.J, See Articles 2351 et seq., Vernon’s Ann.Civ.Stats., for an enumeration of the statutory powers and duties of the commissioners court. The appellation “court” is a misnomer in the accepted meaning of the designation. See 11 Tex.L.Rev. 518 (1933). The commissioners are elected by the qualified voters of the precincts; the county judge is elected by the qualified voters of the entire county. The primary function of the commissioners court is the administration of the business affairs of the county. See Ehlinger v. Clark, 117 Tex. 547, 8 S.W.2d 666 (1928). Its legislative functions are negligible and county government is not otherwise comparable to the legislature of a state or to the federal Congress where the “one man, one vote” principle is asserted in its most exacting and compelling sense. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ; Westberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

This Court has not written upon the specific duty of the commissioners court under Article V, Section 18, to divide the county from time to time into four commissioners precincts for the convenience of the people. There are four cases in which the Courts of Civil Appeals have done so: Lewis v. Harris, 48 S.W.2d 730 (Tex.Civ.App.1932, writ ref.); Ward v. Bond, 10 S.W.2d 590 (Tex.Civ.App.1928, no writ hist.); Williams v. Woods, 162 S.W. 1031 (Tex.Civ.App.1914, no writ hist.); Dubose v. Woods, 162 S.W. 3 (Tex.Civ.App.1913, no writ hist.). In Harris, 20 per cent of the people of the county elected three of the four commissioners and the taxable values in the one precinct containing 80 per cent of the population substantially exceeded those of the three other precincts combined. The suit was for a mandamus to compel a redistricting. It was held that such facts did not show that the discretion of the commissioners court had been abused by arbitrary action, the court saying:

“As applied to different situations, the phrase ‘convenience of the people,’ as used in the Constitution may have different meanings, but in our opinion it cannot properly be construed as imposing upon a commissioners’ court the absolute duty of rearranging the boundaries of commissioners’ precincts, from time to time, so as to accord to each precinct representation upon and power of control of the commissioners’ court in proportion to their respective populations, voting strengths, and taxable valuations. * * * ”

Ward v. Bond considered a division order redistricting the county into new commissioners precincts equal in area but unequal in population to the extent that 54.5 per cent of the voters elected one commissioner, with 45.5 per cent electing the other three commissioners. The Court of Civil Appeals affirmed the action of the trial court sustaining the division order. The Court stated that disparity in population was not a sufficiently serious consideration to justify a reversal of the trial court judgment but pointed out that the disparity in population would shortly disappear as the result of the construction of a railroad through the county. The Court also sought to distinguish the Dubose and Williams cases on the ground that the new division lines in these cases practically deprived some voters of their right of franchise.

The Williams and Dubose cases were sequels and county districting orders were held invalid in each case. In Williams, Dunn County was divided in such manner that 500 voters would elect two commissioners and 120 voters would elect two commissioners. There was a similar disparity in area. It was recognized by both parties that the precincts had been divided along ethnic lines, the Court saying:

“The great disparity in acreage and population is sought to be justified only on the ground that the county should be so divided as to give the Anglo-Saxons a part of the precincts and the Mexican population the others. Convenience of the voter did not enter the consideration of the court, but divisions of the territory were made that will tend to foment strife among citizens of different races.”

Dubose involved a division of Dunn County under which 500 voters elected one commissioner and 140 voters elected the remaining three commissioners, together with similar disparity in area and public roads. Moreover, the precincts were drawn so as to deprive two towns in the county of polling places where they had been located for the past thirty years. The Court said: “The facts alleged in the sworn petition show conclusively that as to neither class of precincts is the division of the county one which is convenient to the people of said county; and in fact such division is so arbitrary and wrong that the court should not for a moment tolerate the same. * * * When considered as commissioners’ precincts, it is manifest that wrong was committed in making the districts largely disproportionate as to acreage and population. * * * The government of the county will be taken away from the majority of the voters. * * * ”

The requirements of Article V, Section 18, of the Texas Constitution are to be construed and enforced consistently with Article I, Section 3, commonly referred to as the equal rights or equal protection clause of the Texas Constitution. Cf. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942). Equal protection of laws is not secured if persons are deprived of equality in political rights or otherwise subjected to an arbitrary exercise of governmental powers. See Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944); Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31 (1931); Glasgow v. Terrell, 100 Tex. 581, 102 S.W. 98 (1907). This Court considered the terms “convenient” and “convenience of the people” appearing in Article V, Section 18, in Williams v. Castleman, 112 Tex. 193, 247 S.W. 263 (1922), involving an order of the commissioners court creating an additional justice of the peace precinct. Two principles relevant here were there recognized, namely, that in discharging the requirements of Article V, Section 18, the commissioners court was given some discretion to meet the “changing needs of the people” but such must be “exercised in good faith and without fraud, not arbitrarily, nor in gross abuse of discretion.”

The basic problem of Texas counties in the respects under review is the extent of political power which the metropolitan areas should have in relation to the rural areas. The very fact of population concentration enables the city voters to elect the county-wide officers. We recognized in Pritchard & Abbott v. McKenna, 162 Tex. 617, 350 S.W.2d 333 (1961), that the county commissioners court is not charged with the management and control of all of the county’s business affairs; and that the various officials elected by all the voters of the county have spheres that are delegated to them by law and within which the commissioners court may not interfere or usurp. The voice of the rural areas will be lost for all practical purposes if the commissioners precincts of counties are apportioned solely on a population basis except, perhaps, in those few sparsely settled counties without a concentration of urban centers. Yet, important affairs of the county administered by the commissioners court — such as roads, bridges, taxable values of large land areas — disproportionately concern the rural areas. Theoretically, the commissioners court is the governing body of the county and the commissioners represent all the residents, both urban and rural, of the county. But developments during the years have greatly narrowed the scope of the functions of the commissioners court and limited its major responsibilities to the nonurban areas of the county. It has come to pass that the city government with its legislative, executive and judicial branches, is the major concern of the city dwellers and the administration of the affairs of the county is the major concern of the rural dwellers.

As we have said, equal rights and equal protection of laws require equality in political rights and there may be circumstances under which equality in population of political subdivisions electing representatives to an overall governing body is essential to equality in voting rights. On the other hand, the convenience of the people in the particular circumstances of a county may require — and constitutionally justify— a rational variance from equality in population in commissioners precincts upon the basis of additional relevant factors such as number of qualified voters, land areas, geography, miles of county roads and taxable values. The trial court in its judgment found that such considerations could have been taken into account in the precinct division in Midland County, notwithstanding which he ordered a redistricting to achieve substantial equality of population.

We agree with the holding of the trial court that there is obvious arbitrariness in the current districting order here under attack because of the patent malapportionment of the commissioners precincts of Midland County. The judgment findings of the trial court show the absence of any rational basis therefor.

We disagree with the judgment of the trial court in its requirement that Midland County be redistricted into commissioners precincts solely upon the basis of population. For the reasons before stated, we are of the opinion that the equal protection of the law clauses of the Texas and the United States Constitutions do not require a commissioners precinct division of Texas counties on this basis in all cases, dependent, of course, in each case upon the existence and effect of other relevant factors such as those we have mentioned. But neither this Court nor the district court has the power to redistrict Midland County into commissioners precincts. This is the responsibility of the commissioners court and is to be accomplished within the constitutional boundaries we have sought to delineate. In no event is a population disparity sustainable against a showing of discrimination, fraud, arbitrariness or abuse of discretion.

The judgments of the Court of Civil Appeals and of the trial court are reversed and the cause is remanded to the trial court for the entry of judgment in accordance with this opinion at a time not to interfere with the 1966 general election process.

HAMILTON, J., not sitting.

SMITH, J., dissenting.

DISSENTING OPINION

SMITH, Justice.

I respectfully dissent. I would affirm the judgment of the Court of Civil Appeals. This is not a “one man-one vote case, nor is there any constitutional requirement for equality in commissioners precincts. Article V, Section 18 of the Texas Constitution governs the organization of commissioners precincts. It is well settled by Texas cases that the phrase “for the convenience of the people” in said Article, confers on commissioners courts the discretion to divide precincts in some physically convenient way, and that there is no requirement for equality of population, and no duty to provide precincts which are equal in population. This is an “abuse of discretion case,” the only question before this Court being whether a single private citizen, as here, has a vested right and cause of action to revise and review a commissioners court precinct order to achieve equality in population. The trial court in its judgment, made several findings of fact, as the Court has indicated, but the decretal portion of the judgment only relates to the finding in regard to population disparity. The judgment directs the commissioners court to use equal distribution of population as the dominant factor in redistricting the County. The judgment rendered by this Court is meaningless. If the Court remands the cause generally for a new trial, citizen Avery has accomplished nothing. On the other hand, if the judgment of the trial court striking down the commissioners court order is upheld, still nothing has been accomplished, except to create additional chaos and confusion. This is true, because Avery, as a single individual and private citizen, has no right or standing in court to question the way the government is run or organized, including the location of commissioners precinct boundaries in Midland County Texas, unless and until he can show some personal loss, damage or harm to his private interests resulting from the governmental operation. See Meredith v. Sharp, Tex.Civ.App., 256 S.W.2d 870 (1953, writ refused, no reversible error) with Per Curiam opinion, 152 Tex. 437, 259 S.W.2d 172. This case was one wherein mandamus was sought to require a commissioners court to create the office of Justice of the Peace, Place No. 2 of Justice of the Peace, Precinct One of Gregg County, Texas. I think the Court would have made the same holding had the cause been before the appellate courts on appeal.

The Court upheld the judgment of the trial court that Article V, Section 18 of the Texas Constitution “confides in the Commissioners’ Court the authority to create a justice of the peace court as here sought; that the convenience of the people is the basic purpose for designating such an additional justice court; and that the creation of such additional justice of the peace court is a discretionary act of the Commissioners’ Court and not a ministerial function of such court.” [Emphasis added.] The Court then said:

“We cannot escape the import of the use of the term ‘for the convenience of the people’ in Sec. 18, supra; 16 C.J.S., Constitutional Law, § 23. The latitude so granted the Commissioners’ Court to create not less than four and not more than eight such precincts, and the power to change the boundaries of such precincts from time to time emphasizes the intent to vest discretionary powers in the Commissioners’ Court in determining whether or not the creation of such additional court would be for the convenience of the people, that is suitable, appropriate or advisable to meet the needs of the people. This discretionary power on the part of the Commissioners’ Court is fully recognized in Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, by our Supreme Court, which involved an affirmative act of the Commissioners’ Court in creating such an additional Justice Court, and in the holdings in Lewis v. Harris, Tex.Civ.App., 48 S.W.2d 730, and Ward v. Bond, Tex.Civ.App., 10 S.W.2d 590, 594, which dealt with the discretionary powers of a Commissioners’ Court as related to the latter clause of Sec. 18, supra, in altering a Commissioners’ Precinct.
“ ‘Mandamus will not lie to control or review the action of an official or board upon matters involving the exercise of discretion or judgment confided to such official or board.’ Lewis v. Harris, supra, 48 S.W.2d at page 732 ; 28 T. J. (Mandamus), Sec. 33.”

This holding in regard to discretionary power to create justice courts is equally applicable to this case where the commissioners court has exercised its discretion in changing its boundary lines.

If it can be said that the judgment of the trial court is based upon a finding of abuse of discretion and that Avery has a justiciable interest, I nevertheless maintain that the trial court confined its holding to require a redistricting of Midland County into commissioners precincts upon the basis of population alone.

Avery is in no position to individually attack or set aside the order creating Midland County commissioners precincts because of a disparity in the population of the several precincts in the absence of a showing of some damage, harm, inconvenience, or financial loss to himself personally. This he has failed to do. There being no duty to provide Avery with equally populated commissioners precincts, no legal wrong has been done to him by refusal to divide in that way; there has been no invasion of his personal rights by including him in a commissioners precinct with a population larger than the other precincts.

Avery attempts to also bring this suit in terms of a class action. In this attempt he completely fails. In his petition he states his capacity as follows:

“Plaintiff files this petition on behalf of himself and other persons similarly situated in the City of Midland, Precinct No. 1, Midland County, Texas, and states that he is a resident, taxpayer, and legally qualified voter and elector of the City of Midland, Precinct No. 1, Midland County, Texas, and that, as such, he is legally qualified to vote for municipal, precinct and county offices in Midland County, Texas.”

The right which he sought was as follows:

“The Plaintiff has a right and interest to see that his civil rights and liberties and in particular his right and interest in an equitable apportionment of voting power for members of the Commissioners Court are protected in accordance with the terms of the Texas Constitution and Section 1 of the 14th Amendment to the Constitution of the United States.”

The pleadings in this case upon which Avery went to trial are completely void of allegations which would qualify as a class action. The petition fails to comply with any of the provisions of Rule 42, Texas Rules of Civil Procedure. Only a quick glance at the rule is required to conclude that Avery does not seek to qualify under subdivision (1) of the rule, because the rights which he seeks to enforce are his rights and liberties and his right to equitable voting power. Such right is not joint or secondary and on its face could not be the proper subject of a class action under subdivision (1) of the rule. Subdivision 2 is out, because there is no specific property involved in this action. Avery’s petition fails to qualify him as representing a class, in that it fails to state that there are persons constituting a class. The petition on which he went to trial does not allege that there are other persons having a common interest with Avery in an adjudication of a common question of fact or law. In fact, the record shows that public officials and many others who publicly refused to support Avery, were all citizens of Midland. The evidence and the proceedings fail to show any support of Avery’s position from the City of Midland or the residents of the City as a group. The petition does not describe any identifiable class of persons nor state or show that they are so numerous as to make their j oin-der in the suit impracticable. There is nothing in the petition to show that there are others “smilarly situated.” The pleadings are lacking and Avery produced no evidence to warrant a valid class judgment. See Schenker v. City of San Antonio, Tex.Civ.App., 369 S.W.2d 626 (wr. ref., n. r. e. 1963).

Since the subject matter of Avery’s complaints in this Court is the disparity of population, and since that subject is a matter of public not private concern, and since Avery did not properly allege or prove a class action in the trial court, so as to represent the public, the result is that he never reaches or gets to the question of substantial evidence, abuse of discretion, or his asserted claims to alternative relief.

Avery has no standing in this Court to complain of the action of the Court of Civil Appeals on his substantial evidence and alternative relief claims. I would dismiss this cause for want of jurisdiction. In no event does the Constitution of the United States or the Texas Constitution require that Midland County he divided into four equally populated precincts. The Court’s view, if finally adopted, will lead to great confusion and uncertainty not only in Midland County, but in every county in Texas with citizens who have a desire to substitute their judgment for that of the commissioners courts. It seems to me that this is not the proper case in which to extend the doctrine of the one man-one vote rule to the governing bodies of local governments such as commissioners courts. Perhaps, in a proper case, the federal courts will in the future take jurisdiction under the Equal Protection clause of the Fourteenth Amendment to the United States Constitution, but I cannot imagine a situation, much less the one presented in this case, where the Texas Constitution or the case law would warrant a holding that there must be equality of population in Commissioners precincts.

      . “Political subdivisions of States — counties, cities, or whatever — never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions. As stated by the Court in Hunter v. City of Pittsburgh, 207 U.S. 161, 178, 28 S.Ct. 40, 46, 62 L.Ed. 151, [159] these governmental units are ‘created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them,’ and the ‘number, nature and duration of the powers conferred upon [them] * * * and the territory over which they shall be exercised rests in the absolute discretion of the state.’ The relationship of the States to the Federal Government could hardly be less analogous.” Reynolds v. Sims, supra, 377 U.S. at 575, 84 S.Ct. at 1388.

      . “No State shall make or enforce any law which shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Amend. XIV, § 1, United States Constitution. See Tedesco v. Board of Supervisors, 43 So.2d 514 (La.App.), appeal denied, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357 (1960), and the clarification in Baker v. Carr, 369 U.S. at 235, 82 S.Ct. 691, of the dismissal of the appeal in Tedesco for want of a substantial federal question, to wit, there was a rational justification for the population disparity in the dis-tricting of city council seats.

      . “Sec. 18. Each organized county in the State now or hereafter existing, shall be divided from time to time, for the convenience of the people, into precincts, not less than four and not more than eight. Divisions shall be made by the Commissioners Court provided for by this Constitution. In each such precinct there shall be elected one Justice of the Peace and one Constable, each of whom shall hold his office for four years and until his successor shall be elected and qualified; provided that in any precinct in which there may be a city of 8,000 or more inhabitants, there shall be elected two Justices of the Peace. Each county shall in like manner be divided into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner, who shall hold his office for four years and until his successor shall be elected and qualified. The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which shaE exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed. As amended Nov. 2,1964.”

      . “(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, in behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
      “(1) joint, or common or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it;
      “(2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or
      “(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.
      “(b) Dismissal or compromise. A class action shall not be dismissed nor compromised without the approval of the court. If the right sought to be enforced is one defined in paragraph (1) of subdivision (a) of this rule notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. If the right is one defined in paragraphs (2) or (3) of subdivision (a) notice shall be given only if the court requires it. Amended by order of September 20, 1941, effective December 31, 1941.”

      . The prayer, reflecting the relief sought, reads as follows:
      “Wherefore, premises considered, Plaintiff prays that Defendants be cited to appear herein and that upon final hearing Plaintiff have judgment as follows:
      “(a) That the Defendants Gideon, Bryant, Moreland, and Osborne, constituting a majority of the members of the Commissioners’ Court of Midland County, Texas, acted arbitrarily, capriciously, unreasonably, unfairly and wrongfully and in abuse of their discretion in passing and approving the Order of August 31, 1963, dividing Midland County into Commissioners’ Precincts and that said Order, and all prior Orders dividing said county into Commissioners’ Precincts, be set aside and that said Defendants Gideon, Bryant, Moreland, Osborne and Culver, as members of the Commissioners’ Court, be directed to pass a new Order dividing said County into Commissioners’ Precincts for the convenience of the people.
      “(b) In the alternative, that the Defendants Gideon, Bryant, Moreland, and Osborne, constituting a majority of the members of said Commissioners’ Court, acted arbitrarily, capriciously, unreasonably, unfairly and wrongfully and in abuse of their discretion in passing and approving the Order of August 31, 1963, dividing Midland County into Commissioners’ Precincts and that said Order, and all prior Orders dividing said County into Commissioners’ Precincts, be set aside and that said Defendants Gideon, Bryant, Moreland, Osborne and Culver, as members of the Commissioners’ Court, be directed to pass a new Order dividing said County into Commissioners’ Precincts for the convenience of the people, giving proper consideration to equality of population, qualified voters, land area, tax values, miles of County roads, and other pertinent things among said Commissioners’ Precincts.
      “(c) In the alternative, that the Defendants Gideon, Bryant, Moreland and Osborne, constituting a majority of the members of the Commissioners’ Court of Midland County, Texas, acted arbitrarily, capriciously, unreasonably, unfairly, and wrongfully and in gross abuse of their discretion in passing said Order and that it and all prior Orders dividing said County into Commissioners’ Precincts be set aside and that writ of mandamus issue compelling the Defendants Gideon, Bryant, Moreland, Osborne and Culver, as members of the Commissioners’ Court, to pass a new Order dividing said County into Commissioners’ Precincts for the convenience of the people and in so doing to establish, as nearly as possible and practicable, such Precincts so that each will have substantially the same number of people, qualified voters, square miles, and other pertinent things.
      “(d) In the alternative, that the Defendants Gideon, Bryant, Moreland, and Osborne, constituting the members of the Commissioners’ Court of Midland County, Texas, acted arbitrarily, capriciously, unreasonably, unfairly and wrongfully and in abui.e of their discretion in passing said Order and that it and all prior Orders dividing said County into Commissioners’ Precincts be set aside and that writ of mandatory injunction issue restraining and enjoining the Defendants Gideon, Bryant, Moreland, Osborne and Culver, as members of the Commissioners’ Court from continuing said Order in effect or calling or conducting any election thereunder and directing said Defendants to pass a new Order dividing said County into Commissioners’ Precincts for the convenience of the people and in so doing to establish, as nearly as possible and practicable, such Precincts so that each will have substantially the same number of people, qualified voters, square miles, and other pertinent things.
      “(e) In the alternative, that the Order of said Defendants on August 31, 1963, dividing Midland County into Commissioners’ Precincts was and is repugnant to and in conflict with one or more of the following: The Fourteenth Amendment, Section 1, of the Constitution of the United States of America and Article 1, Sections 1, 2, 3, and 19, of the Constitution of the State of Texas, for the reason that it deprives Plaintiff and others similarly situated of their constitutional rights, privileges, liberties, and guarantees, and that it and all prior Orders dividing said County into Commissioners’ Precincts be set aside and that said Defendants, as members of the Commissioners’ Court be directed to pass a new Order dividing said County into Commissioners’ Precincts for the convenience of the people and in so doing to establish, as nearly as practicable and possible, such Precincts so that each will have substantially the same number of people and qualified voters.”


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Paul ANDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39630.
    Court of Criminal Appeals of Texas.
    June 22, 1966.
    Rehearing Denied Oct. 19, 1966.
    Herbert Green, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert H. Stin-son, Jr., Harryette Bercu, Curtis Glover and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

Our prior opinion is withdrawn and the following substituted in lieu thereof.

The offense is the attempt to pass as true a forged instrument; the punishment, three years.

Defendant entered a plea of guilty and filed his application for suspended sentence. Trial was had before a jury on August 26, 1965, and notice of appeal was given September 24, 1965.

The evidence adduced by the State revealed that appellant approached witness Perry, an employee of the White’s Humpty Dumpty Food Store, at the store office and filled out a customer draft. The appellant then sought to have witness Perry cash it, showing him a driver’s license. Witness Perry refused to cash the check, whereupon appellant departed with the customer draft.

Officer Pinkston was called to the Humpty Dumpty and subsequently arrested appellant. Upon searching the appellant’s person, a customer draft was found which was identified by witness Perry as that which appellant had drafted and attempted to cash. The signature of the drawer was “Helton Atkinson.”

Appellant may not complain on appeal of the introduction of the fruits of the search of his person when his counsel stated, “We have no objections your Honor,” at the time the evidence was offered at his trial. Crowson v. State, Tex.Cr.App., 364 S.W.2d 698.

No reversible error appearing, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Ex Parte Jack FAVOR.
    No. 39712.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1966.
    Aultman & Riley, by Ronald Aultman, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., William R. Magnussen and Truman Power, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to' the State of Louisiana.

At the hearing on the writ, the state introduced in evidence the executive warrant issued by the Governor of Texas. The warrant recites that appellant “stands charged by complaint, warrant, supporting papers before the proper authorities, with the crime of murder” committed in the State of Louisiana; and that the Louisiana demand for his return is accompanied by copies of said complaint, warrant and supporting papers.

The executive warrant of the Governor of Texas, which appears regular on its face, made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex Parte Carroll, 171 Tex.Cr.R. 462, 351 S.W.2d 228; Ex Parte Fant, Tex.Cr.App., 400 S.W.2d 332.

Appellant insists that the evidence is not sufficient to authorize extradition in that no indictment was included with the accompanying papers, and there was no evidence that a capital case could be prosecuted in Louisiana upon a complaint.

Section 3 of Art. 1008a, Vernon’s Ann. C.C.P., authorizes the Governor of Texas to grant extradition where the demand is accompanied by a copy of a complaint together with a copy of any warrant issued thereon. The failure to show that Louisiana could prosecute for a capital offense on a complaint is not here material. Ex Parte Stanley, Tex.Cr.App., 377 S.W.2d 650; Ex Parte Young, Tex.Cr.App., 397 S.W.2d 74.

The other contentions presented have been considered and they do not reveal error.

The trial court was authorized to conclude as he did and remand the appellant for extradition.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Ex parte Claude THOMAS.
    No. 39737.
    Court of Criminal Appeals of Texas.
    June 25, 1966.
    Rehearing Denied Oct. 12, 1966.
    No attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., W. John Allison, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding, remanding appellant to custody for extradition to the State of Kansas.

At the hearing, the state introduced in evidence the executive warrant issued by the Governor of this State directing the arrest of appellant and his delivery to the agent of the State of Kansas for return to that State.

The executive warrant, being regular on its face, made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Browder, Tex.Cr.App., 373 S.W.2d 751.

Appellant presented no evidence and no brief has been filed in his behalf.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    Billie Pershing HOLDER, Appellant, v. The STATE of Texas, Appellee.
    No. 39605.
    Court of Criminal Appeals of Texas.
    May 25, 1966.
    Rehearing Denied Oct. 12, 1966.
    J. O. Duncan, Gilmer, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

This is an appeal from an order revoking probation.

Upon his plea of guilty to the felony offense of drunk driving, appellant was on October 23, 1965, assessed a term of five years in the penitentiary.

Imposition of sentence was suspended and probation was granted, the first condition being that he commit no offense against the laws of this state or any other state, or of the United States.

On November 30, 1965, motion to revoke such probation was filed by the Criminal District Attorney, alleging that appellant violated the above condition of his probation in that on November 25, 1965, he drove an automobile upon a public road while he was under the influence of intoxicating liquor.

Hearing was had on December 9, 1965, at the conclusion of which judgment was rendered finding that appellant did so violate said condition of his probation, and revoking the order suspending the imposition of sentence. Sentence was pronounced and appellant gave notice of appeal and entered into recognizance on appeal on December 9, 1965.

The record reflects that the state introduced testimony at the hearing sufficient to sustain the trial court’s finding that appellant drove an automobile upon a public road in Upshur County on November 25, 1965, and that he was at such time intoxicated.

Appellant offered in evidence an order entered in County Court of Upshur County in Cause No. 3050, dated November 4, 1963, adjudging him mentally ill and committing him to Terrell State Hospital. Also he introduced the affidavit of two licensed medical doctors whose diagnoses, based upon their examination of him on October 31, 1963, was “chronic alcoholic,” and whose opinions were that he was mentally ill and required observation and treatment in a mental hospital.

Appellant contends that when he introduced the judgment of the County Court the trial judge was under the legal duty to stay all proceedings and impanel a jury to determine the issue of appellant’s sanity. He further contends that the judgment revoking probation should be reversed and remanded for a jury trial to determine his sanity or insanity, and in the alternative, prays that this court order all proceedings be stayed until a jury trial has been had in the trial court to determine the sanity or insanity of appellant.

We overrule the appellant’s contention.

There is no showing in the record that the issue of appellant’s present sanity has been raised in the trial court.

The judgment finding appellant mentally ill on November 4, 1963, was not a bar to his trial and conviction for a felony offense two years later. Nor was it a bar to the hearing on the revocation of probation.

The judgment of conviction reflects a finding by the court on October 23, 1965, that the defendant was sane.

The trial judge did not abuse his discretion in revoking probation.

The judgment is affirmed.


text:
    Walter RILEY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39735.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1966.
    Gene Starkey, Houston, (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The conviction is for the felony offense of drunk driving; the punishment, six months in jail.

The indictment, returned October 12,1962, alleged the offense to have been committed on or about the first day of September 1962, after appellant had been convicted of the misdemeanor offense of drunk driving on May 4, 1962.

Trial was had on February 12, 1964, and sentence was pronounced and notice of appeal was given on April 10, 1964.

The record on appeal was filed in this court on May 25, 1966, and submitted on June 22, 1966.

Reversal is sought upon the ground that the evidence is insufficient to sustain the jury’s finding that appellant while intoxicated drove a motor vehicle upon a public highway in Harris County, Texas, on or about September 1, 1962, as charged in the indictment.

Mrs. Minnie Bell testified that she met appellant on September 1, 1962, while she was driving an automobile in the 300 block on Polk, a public street in Houston, when he drove an automobile off the curb into the street and hit the car she was driving.

This evidence was sufficient to sustain a finding that appellant drove the automobile on a public highway. Headley v. State, Tex.Cr.App., 386 S.W.2d 290.

Mrs. Bell testified that she had a conversation with appellant at the scene and observed that his tongue was thick; that she could smell beer on his breath and that he could not walk straight. “He just wobbled as he walked.”

She further testified that she had seen quite a few individuals who were in a state of intoxication and expressed the opinion that appellant was intoxicated when she saw him on September 1, 1962.

Police Officer Lee Hoffman, who investigated the collision, testified that he had a conversation with appellant and observed that his speech was slurred; he was unsteady on his feet and stumbled and appeared to be falling and he assisted him across the street, and that appellant had the odor of alcoholic beverages about his person.

Officer Hoffman expressed the opinion that appellant was intoxicated.

We find the evidence sufficient to sustain the allegation of the indictment as to the primary offense and overrule appellant’s first ground of error.

Appellant’s second claim of error is that the evidence is insufficient to sustain the allegation of the indictment as to the prior misdemeanor conviction.

The indictment alleged that prior to the commission of the offense on or about September 1, 1962, appellant was on the 4th day of May, 1962, in Cause No. 161890 in County Criminal Court at Law No. 1 of Harris County, duly and legally convicted of the offense of driving a motor vehicle upon a public highway while intoxicated, and that said conviction was a final conviction.

A copy of the judgment in said cause appears in the statement of facts and Joe R. Dvorsky testified from the records of the Department of Public Safety of Walter Riley, Jr. He testified that such record showed a conviction in the cause described in the indictment on May 4, 1962, and read from such record the description of the licensee Walter Riley, Jr., and his signature.

The appearance bond bearing the signature of the defendant in the misdemeanor case was introduced in evidence and the official conviction notice sent to the Department of Public Safety bearing the signature of the person convicted was also identified and introduced.

Officer Hoffman, who investigated the collision, testified that appellant gave his address and the date of his birth. These correspond with the information read by Captain Dvorsky from the driving records of Walter Riley, Jr.

We find the evidence sufficient to support the jury’s finding that appellant was the defendant previously convicted on May 4, 1962, as alleged in the indictment. Rice v. State, 163 Tex.Cr.R. 367, 292 S.W. 2d 114; Goolsby v. State, 166 Tex.Cr.R. 180, 312 S.W.2d 654; Valero v. State, 170 Tex.Cr.R. 302, 340 S.W.2d 492; Jean v. State, 172 Tex.Cr.R. 518, 360 S.W.2d 148; Marley v. State, Tex.Cr.App., 394 S.W.2d 516; Dorsett v. State, Tex.Cr.App., 396 S.W.2d 115.

The remaining claim for reversal relates to the following:

“Q. So that then, that judgment should be entered on May the 4th, should it?
MR. McCULLOUGH (Counsel for the State): We object to that, Your Honor.
THE COURT: Sustained.
MR. WOLTERS (Defense Counsel) : We have a right to show that that is an invalid judgment, because that motion stated the entering of the judgment, because then, the defendant had a right. Had he so chosen to appeal this case to the Court of Criminal Appeals at Austin, Texas. If he so chose, it was prematurely entered.
THE COURT: I think that counsel well knows that in a misdemeanor action, the date of the judgment is the date of the original conviction as the record so indicated. He is just trying to mix up the facts for the jury.”

In view of the statement of counsel for the defense to which the court’s remark was addressed, and the fact that the jury was instructed not to consider the court’s remark, no reversible error is shown.

The judgment is affirmed.


author: MORRISON, Judge. McDONALD, Presiding Judge. WOODLEY, Judge.

text:
    Ex Parte Bert Eugene FERRELL.
    No. 39724.
    Court of Criminal Appeals of Texas.
    June 22, 1966.
    Rehearing Denied Oct. 19, 1966.
    M. Gabriel Nahas, Jr., Raeburn Norris, Houston, for relator.

      Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an original application for writ of habeas corpus wherein relator seeks to have this Court order that he be given credit upon his resentence on February 4, 1966, for the time he has been confined under a sentence imposed on March 19, 1953, which sentence was declared void by the United States District Court for the Eastern District of Texas.

Relator was originally sentenced to life imprisonment in Cause No. 67,984 on March 19, 1953, which was affirmed by this Court and reported in Tex.Cr.App., 261 S.W.2d 564. Thereafter, the United States District Court for the Eastern District of Texas granted relator’s application for writ of habeas corpus on the ground that his attorney was not present at the time relator was sentenced in Cause No. 67,984, there being no showing that relator intelligently waived such right. The judgment of the Federal District Court entered on December 16, 1964, ordered that relator be released from the custody of the Texas Department of Corrections if he had not been re-sentenced in Cause No. 67,984 in the Criminal District Court of Harris County, Texas, within thirty days from the date thereof, his attorney being present in court at the time of sentencing.

Pursuant to this order and in compliance therewith, relator, his counsel being present, was re-sentenced on January 11, 1965, to life imprisonment in the state penitentiary by the Criminal District Court of Harris County, Texas. Appeal therefrom was perfected to this Court; the judgment of the trial court was reformed to provide for relator’s confinement for a term of ten years. As reformed, the judgment was affirmed. Ferrell v. State, Tex.Cr.App., 397 S.W.2d 86.

During the pendency of the appeal, relator filed an original application for writ of habeas corpus in this Court alleging that he was entitled to be discharged from custody because the “re-sentencing was a nullity.” This application was denied on January 3, 1966, by written order wherein it was stated “Petition for writ of habeas corpus is denied without prejudice to petitioner’s right to apply to the trial judge for credit on his sentence under “Article 42.03, C.C.P., 1965 (Article 768, V.A.C.C.P.)”

Relator then filed his “Defendant’s Motion for Resentencing and Credit for Time Served” with the trial court. After a hearing, the trial court in compliance with the suggestion contained in our order re-sentenced relator to ten years, giving him credit from January 11, 1965.

Relator now contends that the “trial court by re-sentencing relator as it did, could only date the time from the original sentence which was March 19, 1953, and not January 11, 1965.”

In the re-sentencing procedure authorized by Article 42.03, Vernon’s Ann. C.C.P. and its predecessor, Article 768, V.A. C.C.P., the trial judge allowed all of the credit on the 10 year sentence such statutes authorized him to allow.

Article 42.06, V.A.C.C.P. and its predecessor, Article 772, V.A.C.C.P. clearly relate to sentence pronounced nunc pro tunc before appeal is taken, and not to re-sentence after affirmance for the purpose of crediting the time the defendant is in jail pending appeal.

We are without authority to order that relator be given credit upon his sentence for the time he was confined under a void sentence. Ogle v. State, 43 Tex.Cr.R. 219, 63 S.W. 1009; Ex parte Nations, 164 Tex.Cr.R. 611, 301 S.W.2d 675; Attorney General Opinion 0-677, delivered May 5, 1966.

The application for writ of habeas corpus is denied.

DISSENTING OPINION

McDONALD, Presiding Judge.

The re-sentencing proceedings were instituted after the effective date of the Code of Criminal Procedure, 1965, the provisions of which are therefore applicable to those proceedings. Article 1.02, V.A.C.C.P.

Article 42.06, V.A.C.C.P. provides:

“If there is a failure from any cause whatever to enter judgment and pronounce sentence, the judgment may be entered and sentence pronounced at any subsequent time, unless a new trial has been granted, or the judgment arrested, or an appeal has been taken. Any time served or punishment suffered from the time the judgment and sentence should have been entered and pronounced and until finally entered shall be credited upon the sentence finally pronounced.”

The allowance of credit, under Article 42.03, supra, for time spent in jail pending final disposition of a cause is discretionary with the trial judge, such time not being part of the punishment. The allowance of credit, under Article 42.06, supra, for time served or punishment suffered from the time the judgment and sentence should have been entered and pronounced until finally entered is not discretionary with the trial court, but is mandatory.

The sentence upon relator’s judgment of conviction should have been pronounced on March 19, 1953, when relator was in fact originally sentenced in the void proceeding. Mandate affirming the conviction in that cause was issued by this Court on November 13, 1953, and relator’s punishment under that void sentence began on that date. At the time he was finally sentenced, relator had actually served in excess of 12 years on that sentence and, including compensatory time earned, had total time to credit of almost 19 years.

While Article 42.06 applies in situations where no judgment has been entered or sentence pronounced, I conclude that the second sentence of that statute is also applicable where the sentence pronounced is void, thereby necessitating re-sentencing, as a void sentence is, in effect, no sentence at all. The result is that where time has been served under a void sentence the amount of time served must be credited on the corrected sentence. I think it was mandatory that relator receive credit for this time when he was re-sentenced on February 4, 1966, and the sentence pronounced on that date should be reformed to so reflect.

It is the writer’s view that relator having served in excess of the statutorily-fixed 10 year sentence for the offense of which he was convicted, his continued confinement is unlawful. Writ of habeas corpus should be granted and relator ordered discharged.

I respectfully dissent.

ON MOTION TO CONSOLIDATE WITH FERRELL vs. STATE, No. 38,660

WOODLEY, Judge.

Motion has been filed requesting that the affirmance of the judgment of conviction as reformed, in Cause No. 38,660, be withdrawn ; that said cause be consolidated with this Cause No. 39,724 and that the judgment of conviction be “reversed and rendered” because petitioner and appellant Ferrell has served in excess of 10 years. Ex parte Holley, 170 Tex.Cr.R. 206, 339 S.W.2d 903, is cited.

Ex parte Nations, 164 Tex.Cr.R. 611, 301 S.W.2d 675, and Ogle v. State, 43 Tex.Cr.R. 219, 63 S.W. 1009, are authority for our holding that petitioner is not entitled to discharge upon the theory that he may claim credit for the time served under the life sentence held by the Federal Court to be void.

Chief Justice Tuttle, writing for the United States Court of Appeals for the Fifth Circuit in Edge v. Wainwright, 347 F.2d 190, pointed out that Edge had served over 12 years of the 15 year sentence he was attacking collaterally, and said:

“It has not yet been held, to our knowledge, that the State could be precluded from retrying him on the manslaughter charge or from refusing to credit his twelve-year’s service against any subsequent sentence which might be imposed upon him. * * *
“The question is a knotty one which should be considered by the appellant and the counsel who will represent him upon remand. We express no opinion on whether it would be a denial of due process for the State to reincarcerate Edge for the same offense, if he is successful in obtaining habeas corpus relief, without any credit for the twelve years he has already served. The spectre of Edge’s being subjected to as much as twenty more years of prison is such, however, that we feel constrained expressly to allude to the problem.”

Judge Tuttle’s statement is appropriate here and we would be inclined to give serious consideration to petitioner’s motion to withdraw our affirmance of the judgment of conviction as reformed were it not for the fact that a re-examination of the record convinces us that the indictment is valid; that there was no reversible error at the trial; that sufficient evidence was introduced to sustain the jury’s finding that the offense of forgery for which petitioner was convicted in 1949 was committed after his conviction for robbery in 1941 became final, and that the judgment with punishment of life should have been affirmed.

(The indictment was introduced in evidence in which was set out the check alleged to have been forged, which check was dated November 19, 1948, the date on or about which the offense was alleged to have been committed.)

We were in error in sustaining the state’s motion to reform the judgment. The error was favorable to the petitioner and will not, at this late date in the term, be disturbed.

Petitioner’s motion to consolidate and for reversal is overruled.


text:
    Donald Lee KIRBY, Appellant, v. The STATE of Texas, Appellee.
    No. 39729.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1966.

      Robert B. Maloney, Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert H. Stinson, Jr., John H. Stauffer and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is the unlawful possession of heroin; the punishment, 15 years.

Sentence was pronounced and notice of appeal given on December 30, 1965.

The evidence admitted to the jury shows that A. L. Edwards, Detective for the City of Dallas, and his partner, Detective J. R. Helm, obtained a warrant to search an apartment in Irving, Dallas County. Accompanied by other Dallas police officers, they went to the Police Department in Irving where they were joined by Irving Police Detective John W. Looper and they proceeded to the apartment.

No one answered when they knocked. Officer Looper then went to the manager of the apartments and obtained a key. The officers then entered and searched the apartment.

While the search was in progress appellant came to the apartment, inserted a key in the door lock and entered. He was stopped by the officers as he started back out the door, at which time Detective Edwards saw a disposable hypodermic syringe in his shirt pocket.

Upon searching appellant, Detective Edwards found four capsules in his shirt pocket.

The content of one of the capsules was shown by chemical analysis to be heroin.

We do not agree with appellant’s contention that the arrest and search of appellant were unlawful. In the execution of the search warrant the Dallas officers acted with an officer of the City of Irving.

Dallas Detective A. L. Edwards, who made the arrest and found the heroin in appellant’s pocket, testified in the jury’s absence that he saw a hypodermic syringe in appellant’s pocket; that he observed appellant and formed the opinion that he was under the influence of narcotics and there was what appeared to be a fresh “needle track” on his arm, and that appellant told him “he just fixed” the capsule that was almost empty — meaning “he had shot' it into his arm.” .

Officer Edwards further testified that he gave the search warrant to Irving Detective Looper before the apartment was entered and got it back and showed it to appellant immediately after his entrance into the house.

The trial court did not err in admitting the evidence obtained as the result of the arrest and search of appellant.

The evidence is sufficient to sustain the conviction and no reversible error appears in the record.

The judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Nathaniel NIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 39720.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1966.
    Ogg, Merrill & Turner, by Joe E. Turner, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is Assault to Murder; the punishment, twenty-five years in the Texas Department of Corrections.

The record reflects that Mr. and Mrs. Eddie Rogers had experienced a burglary at their residence on the night of June 6, 1964, and that Mrs. Rogers was awakened the following night by a noise, and saw someone outside a bedroom window. She awakened her husband, who, carrying a pistol, went to the window and noted that the screen had been removed. Mr. Rogers remained by the window, and presently he saw an unidentified figure place his hands on the window and raise up on it, at which time Mr. Rogers shot the intruder and was himself wounded by a blast from a shotgun.

An initial investigation of the area by the police failed to reveal who the intruder was.

The following morning, Officer Mayo of the Houston Police Department received a dispatch to go to a designated address because a man was in a car there and appeared to be shot. When the officer arrived at the address, he found appellant in an automobile, with what appeared to be a gunshot wound in the forehead. When asked what had happened, appellant admitted that he had shot someone in the Rogers home during the preceding night, and he later directed the officers to where they found the shotgun used in the shooting.

The evidence is sufficient to sustain the conviction.

Appellant challenges the admissibility of two oral statements made by him to police officers, which statements were admitted into evidence at the conclusion of hearings conducted by the trial court out of the presence of the jury.

The first statement, in which appellant admitted shooting someone in the Rogers house, was made to Officer Mayo who was making a general investigation of the fact that someone (appellant) had been shot. From the facts as found by the trial court at the hearing, the officer was not investigating any criminal act committed by appellant, and appellant was not under arrest at the time he made the statement. Article 727, Vernon’s Ann.C.C.P., 1925, in effect at the time of appellant’s trial, is not applicable to statements made by one not under arrest. We find no error in the admission of the statement into evidence. Glass v. State, Tex.Cr.App., 402 S.W.2d 173.

Appellant’s second oral statement was made to Officer Scott of the Houston Police Department later in the day when he was definitely under arrest, however, the record reveals that appellant’s statement led directly to the recovery of the shotgun used in the commission of the offense, and the statement is therefore not rendered inadmissible by Article 727, C.C.P., 1925.

Appellant contends that the statement made to Officer Scott is nevertheless inadmissible because he had no benefit of counsel at the time he made the statement, nor had he intelligently waived such right. The trial court’s findings of fact recite that appellant made no request for counsel prior to the making of the statement. Miranda v. State of Arizona, June 13, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which held that the failure to request counsel does not constitute waiver of the right to counsel, is not applicable to those trials beginning prior to June 13, 1966. Johnson v. State of New Jersey, June 20, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Under the decisions of this Court at the time of appellant’s trial, there is no showing that appellant was denied the right to counsel. Young v. State, Tex.Cr.App., 398 S.W.2d 572; Sykes v. State, Tex.Cr.App., 396 S.W.2d 887.

The judgment is affirmed.


text:
    Eugene ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 39514.
    Court of Criminal Appeals of Texas.
    June 8, 1966.
    Rehearing Denied Oct. 12, 1966.
    No attorney of record on appeal.
    Henry Wade, Dist. Atty., Charles Caper-ton, John Stauffer and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for burglary; the punishment, seven years.

Vincent Marable, Jr., manager of Allied Sand Blasting Company, testified that he closed and locked the company building about 6 p. m. Monday, January 4, 1965, and when he returned at 7:15 a. m. Tuesday, January 5, 1965, the front window was broken and the front door was open; that filing cabinet drawers were open and two books containing six hundred payroll checks with the name of the company printed on them and a check protector were gone, and that he did not give anyone his consent to break and enter the building and take anything therefrom; that there was a man’s shoe print on the desk inside the broken window; that he later saw only two of the six hundred missing checks. While testifying, Marable identified two checks marked as State’s Exhibits Nos. 1 and 2 as two of the checks missing from said building. He testified that they were dated January 5, 1965, and signed J. C. Moore for the company, with one payable to Joseph L. Williams and the other to Milton Harris; and that no person was authorized to sign the name J. C. Moore to the company checks and he did not know Williams and Harris, and they had not worked for the company; and that several of the company checks had been passed but he never heard of any more being passed after the appellant was arrested.

Officer Davenport testified that about 3 p. m. January 6, 1965, he observed appellant driving an automobile at a high rate of speed; that he used the red light and siren and motioned for appellant, who was alone in the car, to drive to the curb and stop, but he accelerated his speed and continued a considerable distance before stopping; that during the pursuit he saw appellant making movements with his hands from his pockets to the front seat of the car; that on questioning appellant after he had stopped he determined that he had no driver’s license, but he exhibited a renewal stub which he soon admitted did not belong to him; that he observed a bulge underneath the seat cover in the middle of the front seat; that on searching underneath the seat cover by reaching through a torn place, he found in the middle of the seat, a billfold which contained two checks. While testifying, Officer Davenport identified two checks as those he removed from the billfold he found in the front seat of the car, and they were marked State’s Exhibits Nos. 1 and 2.

Detective Burrus testified that on the morning of January 5, 1965, he made an investigation of an alleged burglary of the building of Allied Sand Blasting Company; that during the investigation he found a shoe print on a desk inside the broken window of said building; that after appellant’s arrest his shoes were removed at city hall, and he compared the heel print of appellant’s shoe with the heel print of the shoe found on the desk inside the building, and expressed the opinion that the prints were made by the same shoe; and that from his investigation he determined that the appellant was in the city where the alleged burglary occurred on January 4 and 5, 1965.

The appellant did not testify but called three witnesses. Officer Davenport, recalled by the appellant, testified that after placing the appellant in the squad car he searched and found the billfold underneath the seat cover of the front seat of appellant’s car; that appellant told him he did not know the checks were in the car and knew nothing about them. The testimony of Officer Sebastian and Jailer Cole reveals that Sebastian got the renewal stub for an operator’s; license at the scene of arrest, and he gave it to Cole at the jail. It was stipulated that the car appellant was driving belonged to W. E. Woodruff of Kleberg, Texas.

The court charged the jury upon the law applicable to circumstantial evidence.

Notice of appeal was given on August 6, 1965.

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

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the court.


text:
    Teodora ESTRADA, Appellant, v. The STATE of Texas, Appellee.
    No. 39651.
    Court of Criminal Appeals of Texas.
    June 1, 1966.
    Rehearing Denied Oct. 12, 1966.
    O. W. Sternberg, Waco, counsel on appeal, for appellant.
    W. E. Coats, Dist. Atty., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is burglary; the punishment, 6 years.

Appellant’s amended motion for new trial was overruled and he was sentenced and gave notice of appeal on January 3, 1966.

The record before us consists of a transcript, a statement of facts adduced on the trial and a statement of facts on motion for new trial.

While the procedure in Art. 40.09, Vernon’s Ann.C.C.P., 1965, relating to the preparation and approval of the record on appeal and the filing of briefs in the trial court assigning error was not complied with, the sole ground relied upon in appellant’s brief filed in this court is that he was compelled to go to trial with court appointed counsel, and without counsel of his choice, in violation of the rights guaranteed him under the 4th, Sth, 6th and 14th Amendments of the Constitution of the United States.

The facts relating to such claim are before us in the statement of facts approved by the trial judge, and the unassigned error may be reviewed by this court. Art. 40.09 C.C.P., Sec. 13.

The record shows the following:

The indictment was returned March 4, 1965 and copy was served on appellant on March 6, 1965.

On July 26, 1965, appellant appeared in court and reported that he had employed Hon. Weldon Holcomb, of Tyler, to represent him. Mr. Holcomb had received no fee and advised the court that he did not represent appellant and the case was passed. On October 18, 1965, appellant was brought from the penitentiary on a bench warrant at which time the court appointed Hon. Jack Norwood, former Assistant Criminal District Attorney of Smith County and former Assistant Attorney General of Texas, to represent appellant and the case was passed on motion of the appellant and reset for trial November 29, 1965.

During the week prior to November 29, 1965, Hon. O. W. Sternberg, a practicing attorney of Waco, contacted the Criminal District Attorney of Smith County and advised him that the family of appellant had employed or was considering employing him to represent appellant and indicated that he had some conflicts and agreed to contact his friend Hon. Martin Sammons, Tyler attorney, and ask him to be present at the call of the docket on November 29 to make an announcement of ready. He assured the District Attorney that he could and would be present the day the case was set, later in the week, to represent appellant.

On November 29, Mr. Sammons came to court with a motion for continuance sworn to by Attorney Sternberg and was instructed by the court to notify Mr. Stern-berg that the case had been set for trial at 9 o’clock A.M. on November 30, 1965.

Attorney Sternberg did not appear on either of said days or when the case was reached and the trial began on December 1, 1965, and did not appear, though subpoena was issued and served upon him, at the hearing on appellant’s motion for new trial.

Upon the filing of the motion for continuance by O. W. Sternberg as attorney for appellant, Hon. Jack Norwood requested leave to withdraw as attorney for appellant. The motion was denied and Counsel Norwood ably represented appellant at his trial and in the presentment of his motion for new trial.

The record reflects that appellant was not acquainted with and had never seen Attorney Sternberg.

Under the facts, the trial court did not err in proceeding with the trial.

“An accused’s right to select his own counsel, however, cannot be insisted upon or manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.” United States v. Bentvena, 2 Cir., 319 F.2d 916, 936, and cases cited.

Appellant’s claim of denial of his constitutional rights is overruled.

The judgment is affirmed.


text:
    Charles Edward JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 39716.
    Court of Criminal Appeals of Texas.
    June 22, 1966.
    Rehearing Denied Oct. 19, 1966.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is robbery by assault; the punishment, enhanced under Art. 63, Vernon’s A'nn.P.C. by two prior convictions for felony theft; life.

Trial was before a jury on a plea of not guilty. Notice of appeal was given on December 15, 1965 when sentence was pronounced.

The indictment alleged that appellant made an assault upon Ernest Pender and took money from him.

Proof was offered to sustain the allegations as to prior convictions.

. Pender identified appellant at the trial and in a police line-up as the man that came to the icecream truck he was driving, at about 2 o’clock on Sunday afternoon; asked for a pint of icecream and, as he reached in the box and got it, stuck a pistol in his ribs and said “I want your money.”

Pender testified that he told appellant he had a family to support and asked him not to take his money, to which appellant replied: “It’s either your life or your money, your money or your life,” and took the money he had in his apron and then the money in his billfold, totalling $35.78, and ran to a car parked down the street, got in it and drove away.

The confession of the appellant was offered by the state and admitted in evidence following a hearing before the court in the jury’s absence, the court having resolved the issues of fact and law and found that it was freely and voluntarily made after Detective Orlando, to whom it was made, had warned appellant of his rights in conformity with the statutes of this state and of his right to consult counsel.

Appellant testified before the court and again before the jury to the effect that the statement was made as the result of police brutality, all of which was denied by the officers.

Testifying before the jury, appellant admitted having been previously convicted of felonies including those alleged in the indictment for enhancement of punishment purposes. He denied having committed the robbery.

The question of the voluntariness of the confession was submitted to the jury with instruction that it not be considered if the jury believed or had reasonable doubt that appellant signed it “because he was struck or slapped, or that a battery was used against his private parts, or any form of brutality or coercion, was used to make him sign the statement.”

There are no exceptions relating to the court’s charge or formal bills of exception, and no brief has been filed.

We have examined the informal bills of exception reserved in the statement of facts.

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

The judgment is affirmed.


text:
    Emma JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 39706.
    Court of Criminal Appeals of Texas.
    June 8, 1966.
    Rehearing Denied Oct. 12, 1966.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is the unlawful possession of wine and whiskey in a dry area for the purpose of sale; the punishment, a fine of $750.

Trial was before the court on a plea of guilty.

Art. 40.09, Vernon’s Ann.C.C.P. was in effect at the time notice of appeal was given and applies to the giving of such notice; the preparation of the record on appeal and subsequent proceedings. Ross v. State, Tex.Cr.App., 403 S.W. 138 decided June 1, 1966.

The record on appeal reveals that no bond on appeal was required, appellant’s appearance bond being found by the trial judge to be sufficient.

No motion to withdraw notice of appeal was filed in the trial court and no brief or bills of exception appear in the record.

The judgment is affirmed.


text:
    Dearl Ray COTTEN, Appellant, v. The STATE of Texas, Appellee.
    No. 39657.

    Court of Criminal Appeals of Texas.
    June 8, 1966.
    Rehearing Denied Oct. 19, 1966.
    C. O. McMillan, Stephenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is murder (Art. 802c Vernon’s Ann.P.C.) ; the punishment, 5 years.

Appellant’s amended motion for new trial was overruled and notice of appeal was given on October 14, 1965.

Reversal is sought upon three grounds. The first is the overruling and refusing of the defendant’s motion for change of venue.

The state contends that this claim of error is not properly before this court.

Two motions for change of venue appear in the transcript. The first was filed June 21, 1965. The second was filed September 15, 1965. Both motions were controverted.

There is nothing in the transcript to show any action of the court or any exception relating to either of said motions.

The record includes a statement of facts relating to a hearing on defendant’s motion for change of venue held on September 15, 1965, at the conclusion of which the court ruled: “I will carry your motion along and see how the jury looks,” to which counsel for the state and appellant’s counsel replied “All right.”

The statement of facts relating to the trial on the merits reflects that before the jury selected was sworn the court announced that he had overruled the defendant’s motion for change of venue and appellant’s counsel noted his exception and it was agreed between the court and appellant’s counsel that 6 jurors of the regular panel disqualified on the ground of having an opinion; two on suspended sentence, and one had some folks that had been killed or were involved in an accident.

We agree with the state’s contention that the question of whether the trial- court abused his discretion in not changing the venue is not properly before us as an informal bill of exception.

Assuming that the question is before us, there is no showing in the record that appellant’s trial was influenced by the prejudice claimed to exist or that such prejudice reached the jury box.

The record does not reflect the voir dire examination of the jury panel and there is no showing that appellant exhausted his peremptory challenges or that any objectionable juror served in the case.

No error is shown in the overruling of the motion for change of venue. Johnson v. State, 156 Tex.Cr.R. 534, 244 S.W.2d 235; Phillips v. State, 168 Tex.Cr.R. 463, 328 S.W.2d 873, and cases cited; Hagans v. State, Tex.Cr.App., 372 S.W.2d 946.

Appellant next complains that the evidence is insufficient to sustain the conviction.

Viewed from the standpoint of the state, the evidence shows:

Dwayne Sowell was driving his car toward Brownwood about 7:30 P.M. Jacky Wilson was riding with him.

Appellant was driving an automobile on the four lane street in the opposite direction without lights and across the center line in Sowell’s lane of travel. Sowell swerved to the right to avoid him.

After passing the Sowell car appellant’s car, traveling in the same lane, collided with another car traveling toward Brownwood in which Martha Loraine Miller was a passenger, causing her death.

Dwayne Sowell testified that he had an opportunity to observe appellant following the accident and noticed the odor of alcohol about him. He expressed the opinion that appellant was intoxicated and testified that he based his opinion “first off on the strong odor of alcohol in his car” and “the way he acted when the door was opened and he was helped out of the car.” He also testified there was a whiskey bottle in the car. On cross-examination, when asked if there was anything else on which he based his opinion that appellant was intoxicated, the witness testified: “Well, I would say that anyone driving at that time of night on the wrong side of the road without his headlights on would have to be something wrong.”

Patrolman Homer Smith testified that he found “an empty fifth of Sunnybrook Whiskey bottle and also a pint about half full of Sunnybrook Whiskey” in appellant’s automobile. He testified that from his observation of appellant at the scene of the accident and in the Emergency Room at the Medical Arts Hospital, he thought he was intoxicated.

Deputy Sheriff Ray Williams, the first officer to arrive at the scene after the accident and who assisted in prying off the door and getting him onto the stretcher, expressed the opinion that appellant was intoxicated and testified that he saw nothing about the car that would account for his condition other than being intoxicated.

Dr. Harry Thomas, who saw appellant at Medical Arts Hospital where he was first taken following the accident, testified that he asked him if he had had anything to drink and he “stated he had had about a half a pint of whiskey”; that he seemed unconcerned about his injuries; refused to follow any advise he gave him; and that his reactions were consistent with those of a man who had been drinking and was under the influence of intoxicating liquor.

Dr. Seale T. Cutbirth, who also saw appellant at the Emergency Room of the Medical Arts Hospital, testified that from his observation of him he assumed that he was intoxicated.

Appellant testified that he was not intoxicated or drunk but that he did take “two small sips of whiskey” at different times during the afternoon; that J. C. Parnell, who was with him and had been with him during the day, was “real drunk” and that the whiskey in the car belonged to him.

Parnell corroborated appellant’s testimony.

Appellant’s explanation of the statement attributed to him by Dr. Thomas, which he said he did not remember making, was that Dr. Thomas wanted him to quit drinking and when he saw him would always ask: “How much did you drink yesterday?” and he would “usually say ‘a fifth or two fifths’ but I was only joking.”

Other witnesses who were with appellant during the afternoon testified that he was not intoxicated, and his mother and his wife also testified in his behalf.

Also it was shown by the testimony that upon examination at the Brownwood Memorial Hospital at about 11:20 P.M., Dr. Roy Hallum failed to detect any odor of alcohol on appellant and testified that at that time he did not appear to be intoxicated.

Dr. Hallum also testified that about two days after he was admitted to the hospital appellant developed a hemorrhage like a black eye, which was not apparent when he entered the hospital, probably caused by a blow on the head.

Appellant testified that the tires on the Pontiac car he was driving were slick and one tire was a 15 inch while the others were 14 inch tires, he having borrowed the 15 inch tire and wheel the night before. He testified as to his version of the collision:

“Well, the car was weaving pretty bad, and I decided I’d come back to Billups service station and have the tire fixed, and I knew there was an intersection along in there somewhere, and I pulled over to start to make a left hand turn, and there was a car coming, and I tried to pull it back to the right, and I missed that car, and then it started pulling real hard to the left, and I suppose that something happened to the tie rod, or that flat, or something, I don’t know what, but then there was a car light up on the edge of the hill that was blinding me and about that time the impact.”

The jury did not see fit to accept appellant’s testimony that he was not intoxicated as true and resolved the fact issues against him. We find the evidence sufficient to sustain their verdict.

We do not agree with appellant’s contention that the testimony of the state’s witnesses is as consistent with injury as with intoxication. Vasquez v. State, 166 Tex.Cr.R. 89, 311 S.W.2d 828, and Leal v. State, 170 Tex.Cr.R. 71, 338 S.W.2d 443, cited by appellant, are not deemed applicable under the facts.

Appellant next complains of the overruling of his exception to Paragraph 5 of the court’s charge.

The jury was instructed in Paragraph 7 to the effect that even though the jury found that he was intoxicated, appellant would not be guilty of murder if he was operating his automobile in the same manner that it would be operated by one not under the influence of intoxicating liquor, and that in order to convict, the jury must find beyond a reasonable doubt that appellant’s intoxicated condition, if any, caused the death of Martha Loraine Miller, and if they had a reasonable doubt thereof to acquit.

We overrule the complaint that the jury was not so instructed in Paragraph 5 of the charge and was not instructed to consider the charge as a whole. We find no error which would call for reversal in the overruling of appellant’s exception to the charge. Long v. State, 154 Tex.Cr.R. 587, 229 S.W.2d 366; McKinnon v. State, 159 Tex.Cr.R. 65, 261 S.W.2d 335; Williams v. State, 172 Tex.Cr.R. 218, 355 S.W.2d 710; Clayton v. State, 172 Tex.Cr.R. 595, 361 S.W.2d 385.

The judgment is affirmed.


text:
    Aubre Noel SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 39686.
    Court of Criminal Appeals of Texas.
    June 22, 1966.
    Rehearing Denied Oct. 19, 1966.
    Daugherty, Bruner & Lastelick, by Fred Bruner, Dallas, for appellant.
    Henry Wade, Dist. Atty., Donald Koons, Michael Buckley and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The offense is aggravated assault upon a police officer; the punishment, six months in jail and a fine of $500.

The state’s testimony shows that on the night in question the appellant, seventeen years of age, was at a Dairy Queen drive-in in the city of Mesquite. No intoxicants were sold on the premises but when appellant came into the dining room he had a bottle of beer in his pocket, which he spilled in a booth.

The owner, after asking appellant to leave because of his repeated fussing with a girl and pulling her hair, called the police and reported drinking on the premises. Several city of Mesquite police officers were dispatched to the drive-in to check for city law violations by minors in consuming alcoholic beverages. Among those dispatched to the drive-in was Officer Larry Sprague, the injured party, who, at the time, was in uniform.

Officer Sprague testified that when he arrived upon the scene the place was closed but there were from fifty to seventy people seated in cars on the lot. He and other officers proceeded to check the occupants of the cars to see if any alcoholic beverages were being consumed by minors. The officer testified that when he went to an automobile in which the appellant and another boy were sitting, he asked appellant if he was drinking and if there was any liquor in the car. Appellant replied that he was not drinking. At such time the officer could smell alcohol on the appellant and he asked him to step out of the car for identification. Appellant got out of the car and produced his operator’s license, showing his age to be seventeen. Officer Sprague testified that at such time he could smell a strong odor of alcohol on appellant’s breath and that he informed appellant he was under arrest for consuming alcoholic beverages (the city charge against a minor for drinking). The officer then had appellant get in the squad car and when appellant said he was not going to jail Officer Sprague pulled him out of the car and turned him around face first “to shake him down and cuff him.” Appellant started cursing and fighting the officer and, in the altercation, hit him on the side of the face and on the mouth. At such time, another officer came up and the two officers proceeded to handcuff appellant. Officer Sprague testified that he then took appellant to the city jail and that, while booking him, appellant again started cursing and kicked him in the stomach and spit in his face. The officer stated that at such time “I lost my composure and I slapped the boy openhanded.”

Other officers, called as witnesses by the state, corroborated the injured party’s version of the difficulty.

Testifying in his own behalf, appellant admitted that he had been drinking on the night in question but denied that he struck the officer either at the drive-in or at the police station. Appellant testified, in substance, that the officer used excessive force in taking him into custody on such occasion.

Other teen-aged witnesses to the difficulty were called who supported appellant’s version of the transaction.

The court, in submitting the issue of appellant’s guilt, charged the jury relative to the amount of force an officer may, under the law, use to effect an arrest, and to the right of an accused to defend his life or person from an attack or threatened attack brought about by the use of excessive force.

We find the evidence sufficient to sustain the judgment of conviction.

Appellant predicates his appeal upon three points of error.

By his first point, appellant insists that the complaint upon which the information was based was added to or altered after it was sworn to and the entire proceedings were therefore void ab initio.

No motion to quash the complaint and information was filed by appellant, and the attack upon the state’s pleading was raised for the first time in his amended motion for a new trial.

The complaint was signed and sworn to by T. L. Hass, a police officer of the city of Mesquite.

At the hearing on the motion for new trial, Officer Hass testified that while he could not swear that certain “ ‘x-ed’ ” out portions and interlineations were on the complaint when he signed it the complaint on file in the cause appeared to be the same complaint which he signed.

Under the record, the court did not err in refusing to grant a new trial on the ground urged.

The cases relied upon by appellant, such as Bender v. State, 171 Tex.Cr.R. 628, 352 S.W.2d 39, and Davis v. State, 171 Tex.Cr.R. 400, 350 S.W.2d 934, are not here controlling, because in those cases it was affirmatively shown that the complaint was either not signed or sworn to by the affi-ant.

By point of error #2, appellant insists that the court’s charge, although not objected to, was fundamentally erroneous in (1) failing to include a charge on simple assault, and (2) in the manner in which the court instructed the jury with reference to use of force by a police officer in making an arrest, and the rights of an accused in resisting the arrest.

We have carefully examined the charge and find no fundamental error which would call for a reversal of the conviction.

In the absence of an objection or requested charge, appellant is in no position to complain of the court’s failure to charge on simple assault.

By point of error #3, appellant insists that there was an accumulation of errors which deprived him of a fair trial “even though any one of the errors standing alone could have been interpreted as being waived or not properly preserved or considered harmless by State case law.”

An examination of the record in the light of such point does not reflect reversible error. The point is overruled.

The judgment is affirmed.

Opinion approved by the Court.