text:
    CITY OF IRVING, Texas, Petitioner, v. DALLAS COUNTY FLOOD CONTROL DISTRICT et al., Respondents.
    No. A-10131.
    Supreme Court of Texas.
    Oct. 21, 1964.
    Rehearing Denied Nov. 25, 1964.

      C. J. Taylor, Jr., City Atty., Irving, for petitioner.
    H. P. Kucera, City Atty., Henry Wade, Dist. Atty., Scurry, Scurry & Hodges, Dallas, for respondents.

      . All Article references are to Vernon’s Texas Civil Statutes.

   CALVERT, Chief Justice.

Suit was by Dallas County Flood Control District, City and County of Dallas Levee. Improvement District, and Dallas County Levee Improvement District No. 5 against the City of Irving to enjoin the City from adopting Ordinance No. 833 or any ordinance annexing territory lying within the two Levee Improvement Districts, and to declare void any such ordinances theretofore adopted. The City of Dallas and the State of Texas intervened on the side of the plaintiffs, the State of Texas by petition in the nature of quo warranto filed by the District Attorney.

This appeal is from a judgment of the trial court granting a temporary injunction. By its terms the City of Irving is restrained and enjoined from taking any action to adopt Ordinances Nos. 833 and 834, or any other ordinance seeking to annex any portion of the Levee Improvement Districts, and from exercising any rights or powers over any territory within the districts. The Court of Civil Appeals affirmed. 377 S.W.2d 215. We reverse the judgment of the Court of Civil Appeals and modify and affirm the judgment of the trial court.

The trial court’s judgment is expressly rested on a conclusion that only cities qualifying under Art. 974e-8 have power and authority to annex territory included within the boundaries of levee improvement districts, and that Irving does not so qualify. The Court of Civil Appeals affirmed for the same reason. We cannot accept the conclusion as a sound basis for the judgment. It is true that the statute is inapplicable to Irving, a city having a population of less than 425,000 according to the last preceding Federal Census, but we do not interpret it as constituting the source of a Home Rule city’s power and authority to annex territory within the boundaries of levee improvement districts, or as a limitation on the power. Rather, we interpret Art. 974e-8 as regulating the legal relationship between cities having a population of more than 425,000 inhabitants and levee improvement districts when all or a part of the territory within such districts is annexed by cities of that size.

Art. 974e-8 was enacted in 1951. See Acts 52nd Leg., Reg. Ses., ch. 326, p. 561. As enacted, it applied, and still applies, to any city, including Home Rule cities, having a population in excess of four hundred twenty-five thousand (425,000) according to the last preceding Federal Census, which had theretofore annexed or might thereafter annex territory within a levee improvement district. The Article deals first with situations in which a city annexes all of the territory of a levee improvement ■district. In those situations, it provides, that the district shall be abolished; that the ■ city shall take over all of the properties and assets of the district, assume all of its debts and liabilities, and perform all'of its functions; that the city shall assume all of the rights and obligations under existing contracts with flood control districts or other governmental agencies for operation of levees or other flood control works; and, finally, that the city shall have authority to refund outstanding bonded indebtedness of the district and provide a sinking fund therefor. The Article then deals with situations in which a city annexes only a part of the territory of a district. In those situations it provides that “the governing authorities of such city and district shall be authorized to enter into contracts in regard to the division and allocation of duplicate and overlapping powers, functions and duties between such agencies, and in regard to the use, management, control, purchase, conveyance, assumption and disposition of the properties, assets, debts, liabilities and obligations of such district;” that the district may sell any utility system or other property owned by it to the city, or contract for its operation by the city; that in the absence of contract, the district shall have authority to continue to exercise the powers and functions and to discharge the duties and obligations imposed on it by law, unaffected by the annexation, in which event the city shall not be required to perform any drainage function in the district but may continue to perform all other authorized municipal functions which the district is not authorized to perform.

The whole tenor of the article indicates quite plainly that it was not intended as a source of power or authority to annex levee district territory, limited to a particular class of cities and excluding all others, but that it was intended to declare the legal status of the respective governmental units in overlapping territory when the overlap results from annexation of levee district territory by a city of more than 425,000 inhabitants, and to regulate their respective rights, duties, powers and obligations.

' Respondents emphasize certain language in the emergency clause of the Act, which, to them, indicates legislative recognition that before its passage cities had no authority to annex territory of levee improvement districts. The language reads: “The fact that there is not any law applicable to the annexation by cities of territory situated within levee improvement district [s] * * * creates an emergency * * Respondents interpret this language as though it read: “The fact that there is not any law authorising the annexation by cities of territory situated within levee improvement districts * * creates an emergency * * This is hardly a reasonable interpretation of the language when considered alone, and it is not at all reasonable when the language is considered in context with all parts of the Act.

If the Legislature had believed that there was at the time no law authorizing such annexations, and had intended that the Act confer the authority, surely express provision therefor would have been written into the body of the Act; but there are no words in the body of the Act expressly conferring annexation powers. Moreover, the emphasized language of the opening sentence of the Act makes its provisions applicable to cities which had annex.ed levee district territory prior to its enactment, and thus is tacit recognition by the Legislature that power to annex existed theretofore. That our interpretation of the Article is correct is also borne out by the caption of the Act, which reads:

“An Act prescribing the powers, duties and obligations of cities including Home Rule cities and those operating under General Laws or special charters having a population in excess of four hundred twenty-five thousand (425,000) inhabitants with reference to properties of levee improvement districts which have heretofore been annexed or which may hereafter be annexed by such cities; providing a savings clause; and declaring an emergency.”

When all parts of the Act are considered, it would require a strained interpretation of the language of the emergency clause to say that the Legislature intended thereby to make a finding that there then existed no lawful authority for Home Rule cities to annex territory situated within levee improvement districts. Moreover, any such finding would have been an erroneous finding.

The City of Irving is a Home Rule city. Home Rule cities derive their powers from Art. 11, § 5 of the Constitution, Vernon’s Ann.St., which restrains their exercise of legislative powers only to the extent that “no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.” The power to annex territory is a legislative power. Norris v. City of Waco, 57 Tex. 635, 641. There is no constitutional provision with which an ordinance annexing levee improvement district territory is inconsistent; and there is no general law with which it is inconsistent unless it be Art. 974e-8, and it is not inconsistent with that law as we have interpreted it. Moreover, subdivision 2 of Art. 1175 expressly confers power on a Home Rule city “to fix the boundary limits of said city, to provide for the extension of said boundary limits and the annexation of additional territory lying adjacent to said city * * The provision expressly empowers Home Rule cities to annex any territory which is adjacent to them, State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780; State ex rel. Graves v. City of Sulphur Springs, Tex.Civ.App., 214 S.W.2d 663, writ refused, no reversible-error, and which is not included within the limits of another incorporated city. City of Houston v. State, 142 Tex. 190, 176 S.W.2d 928; City of Houston v. City of Magnolia Park, 115 Tex. 101, 276 S.W. 685; City of Galena Park v. City of Houston, Tex.Civ. App., 133 S.W.2d 162, writ refused. We find nothing in the general law which removes levee district territory from the scope of the power. The power to annex territory lying within kindred governmental units has been recognized and upheld, expressly or by implication, see City of Pelly v. Harris County Water C. & I. Dist., 145 Tex. 443, 198 S.W.2d 450 (Water Control & Improvement District and two Fresh Water Supply Districts); Jefferson County Water C. & I. Dist. No. 5 v. City of Port Arthur, 160 Tex. 136, 327 S.W.2d 415 (Water Control Improvement District); Harris County Drainage Dist. No. 12 v. City of Houston, Tex.Com.App., 35 S.W.2d 118 (Drainage District) ; and we know of no good reason for holding that levee district territory lies in an immunized sanctuary.

But the fact that the courts below gave an erroneous reason for issuing and sustaining the temporary injunction does not require its dissolution if the pleadings and the evidence provide a sound basis in law for its issuance. A trial court is not required in granting a temporary injunction to assign reasons for finding that the applicant will probably prevail in a trial on the merits. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549; Oil Field Haulers Ass’n v. Railroad Commission, Tex.Sup., 381 S.W.2d 183. We have concluded that the judgments of the trial court and Court of Civil Appeals temporarily enjoining Irving from finally adopting Ordinances Nos. 833 and 834 must be affirmed for reasons and on grounds differing from that given by such courts.

Subdivision 2 of Art. 1175 which expressly confers power on Home Rule cities to annex territory, contains its own limitation of the scope of the power — the territory to be annexed must lie “adjacent” to the annexing city. In State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780, we held that “the usual meaning of the word ‘adjacent’ must be applied to the words of the statute and that the Legislature used the term in the sense of being ‘contiguous’ and ‘in the neighborhood of or in the vicinity of,’ without reference to the character of the land or the use to which it is put.” We pointed out in the same case, however, that whether land was “adjacent” to an annexing city was a law question; and we clearly indicated by referring to the extreme situations imagined by the dissenting Justice in State ex rel. Graves v. City of Sulphur Springs, Tex.Civ.App., 214 S.W.2d 663, 666, writ refused, no reversible error, that we would not uphold ordinances of Home Rule cities annexing territory which as a matter of law was not adjacent. See 303 S.W.2d 786.

In State ex rel. Pan American Production Co. v. Texas City we also cited State v. Camper, Tex.Civ.App., 261 S.W.2d 465, writ refused, with approval. In that case the Court stated that the meaning of the word “adjacent” is “ ‘determinable principally by the context in which it is used, and the facts of each particular case, or by the subject-matter to which it is applied.’ ” 261 S.W.2d 468. The context in which the word is used in subdivision 2 of Art. 1175 thus becomes important to its meaning.

Subdivision 2 of Art. 1175 confers power on all Home Rule cities to annex adjacent territory. The meaning of the word “adjacent” must, therefore, be related to the fact that one city has as much authority to annex as another. Certain unincorporated territory may be equally adjacent, or substantially so, to two or more Home Rule cities, in which event either or any one of them would have authority to annex all of it. See City of Houston v. State, 142 Tex. 190, 176 S.W. 2d 928. On the other hand, territory may be adjacent to only one Home Rule city, in which event it is not made adjacent to another city by the mere fact that it can be reached and encircled by boundary lines which at some point are contiguous with the boundary lines of such city. “Adjacency,” as between two Home Rule cities, must be tested by the facts in each case. By way of example, a 100-acre tract of land lying on the northern boundary line of the City of San Antonio is adjacent to that city but is not adjacent to Austin, some 75 miles distant, although, conceivably, the 100-acre tract could be encompassed in lines drawn around a thin sliver or finger of unincorporated territory adjoining the southern boundary of Austin and running the full length of the 75 miles to the northern boundary of San Antonio.

The pleadings of the defendants and intervenors raise the question of the adjacency to the City of Irving of the territory involved in this suit. On the record before us we hold, as a matter of law, that most of the territory encompassed within the boundary lines drawn by Ordinance No. 833 is adjacent to the City of Dallas but is not adjacent to the City of Irving.

Unlike the Austin-San Antonio example given above, Irving and Dallas are not 75 miles distant from each other. The maps in evidence disclose that the east boundary line of Irving lies only a short distance from the west boundary line of Dallas. Now, it may well be that most unincorporated territory lying between two closely neighboring cities is, in a sense, adjacent to both, as was true in City of Houston v. State, 142 Tex. 190, 176 S.W. 2d 928; but undoubtedly there can be a factual situation in which some of the territory is, in law, adjacent to only one. Such is the situation here with respect to most of the territory described in Ordinance No. 833.

The territory described in Ordinance No. 833 is, for the most part, a long sliver of land, approximately one-half mile wide and approximately six miles long. It has its base on the present southeastern boundary of Irving and points like a finger into the very heart of industrial development along the boundary lines of Dallas. It runs down the Trinity River channel, and reaches its terminus at the Commerce street viaduct which spans the Trinity and joins the eastern and western parts of Dallas. Its boundaries on the east and west are coincident with City of Dallas boundaries for its entire length; and it includes levees paralleling the Trinity River, built to contain and control the river’s flood waters to prevent damage to property in Dallas. A rough diagram of the area (shaded), also showing present boundaries of Dallas and Irving, is appended.

What has been said by way of description and the foregoing diagram make evident the basis of our holding that most of the territory sought to be annexed by Irving Ordinance No. 833 is adjacent to Dallas but is not adjacent to Irving. The problem of adjacency to two Home Rule cities was not involved in State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780, State ex rel. Graves v. City of Sulphur Springs, Tex. Civ.App., 214 S.W.2d 633, writ refused, no reversible error, or City of Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W.2d 695, 154 A.L.R. 1434; hence, those cases are not controlling here.

It is not within the power of the courts to reframe Ordinance No. 833 to eliminate therefrom territory which is not adjacent to the City of Irving. City of San Antonio v. Berry, 92 Tex. 319, 48 S.W. 496; State ex rel. American Mfg. Co. of Texas v. City of Ft. Worth, Tex.Civ.App., 314 S.W.2d 335, no writ history. It follows that the trial court did not abuse its discretion in enjoining final adoption of the ordinance.

Ordinance No. 834 presents a different problem. Applying the description of the territory contained in the ordinance to the maps in evidence, it appears that such territory may be adjacent to both Dallas and Irving. Whether it is adjacent to only one or to both of the cities is a matter to be decided initially by the trial court, and its adjacency may be decided in the trial on the prayer for permanent injunction. The temporary injunction prohibiting adoption of Ordinance No. 834 pending a hearing on the prayer for a permanent injunction preserves the status quo, and the trial court did not abuse its discretion in granting it. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549.

As noted in the beginning of this opinion, the temporary injunction granted by the trial court also prohibited the City of Irving from exercising any rights or powers over any territory lying within the Levee Improvement Districts. In so far as the injunction applies to territory annexed by Irving prior to the institution of this suit, it destroys rather than preserves the status quo and cannot be permitted to stand. The validity of prior ordinances is attacked in the suit, but their validity was not adjudicated by the temporary injunction judgment and is not involved in this appeal.

The judgment of the Court of Civil Appeals affirming the judgment of the trial court is reversed, and the judgment of the trial court is modified to eliminate therefrom any provision which prohibits the City of Irving from exercising rights, powers and controls over territory lying in the plaintiff Levee Districts finally annexed prior to the institution of this suit. As modified, the judgment of the trial court is affirmed.

All costs are assessed against the City of Irving.

      . Emphasis ours throughout unless otherwise indicated.

      . This power is now circumscribed by limitations. See Acts 68th Leg., Reg. Ses., p. 447, eh. 160. The ordinances under consideration antedated this Act.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Herman O. KELLNER et al., Appellants, v. TEXAS OSAGE COOPERATIVE ROYALTY POOL, INC., et al., Appellees.
    No. A-10244.
    Supreme Court of Texas.
    Oct. 7, 1964.
    Rehearing Denied Nov. 11, 1964
    Ronald Smallwood, Fred V. Klingeman, Karnes City, for appellants.
    House, Mercer, House & Brock, San Antonio, Scarborough & Roberts, Kenedy, for appellees.
   PER CURIAM.

The opinion of the Court of Civil Appeals is found in 379 S.W.2d 359. Applications for writ of error have been filed by both appellants and appellees. Both applications are “Refused. No Reversible Error.” See Rule 483, Texas Rules of Civil Procedure.

In the course of construing paragraphs 15 and 16 of the trust instrument before it, the Court of Civil Appeals said: “The corporation may yet be terminated under the second part of paragraph sixteen if the income should be less than $1,500 per year and the other circumstances stated in paragraph sixteen have arisen and the conditions stated therein have been complied with.”

Our refusal of the applications for writ of error is not to be considered as an approval of the quoted holding.


author: HAMILTON, Justice. WALKER, Justice

text:
    Ex parte Don R. EDMONDS and Fred Sturm.
    No. A-10132.
    Supreme Court of Texas.
    July 29, 1964.
    Rehearing Denied Nov. 11, 1964.

      Spurlock, Schattman & Cave, Fort Worth, for relators.
    Simon & Simon, Fort Worth, for respondent.
   HAMILTON, Justice.

Relator Don R. Edmonds is the City Manager and relator Sturm is the Mayor of the City of Hurst. About March 4, 1964, the City of Hurst instituted condemnation proceedings against W. E. Vincent and others in the County Court of Tarrant County. Commissioners to assess the damages were appointed by the County Judge. Hearing was held on March 19, 1964, at which hearing said Vincent and others appeared through their attorneys. Pursuant to this hearing an award was entered and filed. The City of Hurst deposited with the County Court the amount of the award. On March 18, one day before said hearing, W. E. Vincent and others requested the 153rd District Court of Tar-rant County to issue a temporary restraining order enjoining the City of Hurst from entering upon the land sought to be condemned. The temporary restraining order was granted.

In violation of this order the City of Hurst, through its City Manager Edmonds and Mayor Sturm entered upon the land in question, whereupon they were cited for contempt and upon hearing both relators were found to be in contempt and were committed to jail in lieu of payment of a fine of $100.00 each. This court granted relators’ motion for leave to file this proceeding and ordered relators released temporarily from the custody of the sheriff pending the hearing of the cause on the merits. Relators contend that the District Court was without jurisdiction to enter the restraining order and hold them in contempt for violation of said order, and for that reason the judgment finding them in contempt is void. They say that when the petition for condemnation was filed in the County Court that court obtained exclusive jurisdiction over the condemnation proceeding and that a district court has no jurisdiction to interfere with such proceeding.

We agree with this contention. It seems to be well settled in our state that the district court is without jurisdiction to enjoin the proceeding in a condemnation suit. State v. Giles, Tex., 368 S.W.2d 943; Gregg v. Lower Nueces River Water Supply District et al. (Tex.Civ.App., 1957), 303 S.W.2d 812, writ refused.

If the District Court was without jurisdiction to enter the restraining order, then the contempt proceeding based on it is likewise void. Ex parte Barrett, 120 Tex. 311, 37 S.W.2d 741 (1931). In that case the court had before it a situation in which a temporary restraining order was issued restraining the holding of an election. The order was disobeyed and the election officials were held in contempt by the District Court. The court said, at page 742 of 37 S.W.2d:

“The injunction was void, and the contempt proceedings based on it is likewise void.”

In Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588, (1948) this court said:

“ * * * So, in so far as the injunction judgment entered by the trial court attempted to restrain peaceful picketing at, near, across or within 100 feet of the railway tracks across Pickett Street, it is void; and, since the testimony offered at the contempt hearing failed to show any other sort of picketing, the order of commitment for contempt is likewise void. One cannot be punished for contempt for violating an order which a court has no authority to make.”

Respondents here attack the legality of the condemnation suit and the jurisdiction of the County Court to carry out such condemnations. They say that the condemnation proceedings are void and that the District Court does have jurisdiction to issue an injunction interfering with such proceedings. They rely on Lone Star Gas Co. v. City of Fort Worth, 128 Tex. 392, 98 S.W.2d 799, 109 A.L.R. 374 (1936) and Dallas County v. Plowman, 99 Tex. 509, 91 S.W. 221 (1906). Those are cases where injunction was allowed on the ground that the proceedings were void. In this case we have no such showing, although respondents do contend that the proceedings were invalid.

In this case the City of Hurst filed a petition in the County Court seeking condemnation. This petition complied with Article 3264, R.C.S. It described the land sought to be condemned by metes and bounds, showing it to be in Tarrant County, where the suit was filed. It stated the purpose for which the land was intended to be used, that is, “for the purpose of constructing and maintaining drainage easements”. It named the owners of the land and stated that the City of Hurst and the owners were unable to agree upon the value of the land or the damages thereto.

Respondents complain of rela-tors’ pleading in that relators’ petition did not properly describe the purpose for which the City of Hurst proposes to use the property in question. It says under this pleading it is impossible for the commissioners to establish the separate damages to the remainder of plaintiffs’ land because they are not put on notice as to what sort of drainage will be used, whether underground or overground, or the origin of whatever fluid is to be drained or the destination of the fluids as drainage or the necessity for drainage. While these may be good exceptions to plaintiff’s petition, the proper place to raise them is in the County Court where they are filed. A mere defect in pleadings does not make the proceedings void, as respondents contend. They may be subject to amendment after proper objection has been sustained.

While Article 3264, supra, does not require that the municipal corporation seeking to condemn property set out the particular statute which vests the city with the power of eminent domain, the City of Hurst in this instance did allege that it had power of eminent domain vested in it by virtue of Article 1107, R.C.S. Respondents seize upon this statement and attack the proceedings, contending that Article 1107 does not authorize condemnation proceedings by a city “for the purpose of constructing and maintaining drainage easements.” Whether or not the City of Hurst has authority to condemn under Article 1107 is immaterial, because ample authority is given in Article 1109b, and no attack is made on the power of the city to condemn for drainage purposes under that statute.

The petition filed by respondents in the 153rd District Court requesting the injunction and temporary restraining order had attached to it the petition of the City of Hurst filed in the County Court asking to condemn the land in question, and a copy of the notice of hearing issued by the special commissioners. The only objection to these pleadings the respondents have made are as set out above. There is a total failure to show any invalidity of these proceedings. In the absence of some showing in the petition requesting an injunction, that the proceedings are void, the court was without jurisdiction to grant the restraining order. We do not mean to say that if we had before us such a case wherein it would be difficult for the trial court to determine the jurisdiction that we would not hold that a temporary restraining order would be valid pending time for his determination of such matter. But where the petition for writ of injunction shows on its face that the condemnation proceedings are valid, and that the court in which they are filed has exclusive jurisdiction, then a district court is without jurisdiction to grant the temporary restraining order interfering with the proceedings.

Respondent relies on several federal cases for the proposition that a temporary restraining order must be obeyed, even though the court has no jurisdiction to enjoin the conduct in question. In United States v. United Mineworkers of America, 330 U.S. 2S8, 67 S.Ct. 677, 91 L.Ed. 884 (1947), a federal district judge granted a temporary restraining order against the labor union to prevent a strike. The union violated the restraining order and was held in contempt. In upholding the judgment of contempt, the Supreme Court held that the courts had power to restrain strike activities when such relief was sought by the United States government, despite the Norris-LaGuardia Act. However, in the alternative, the Court also held the following in 330 U.S. at page 293, 67 S.Ct. at page 695:

“In the case before us, the District Court had the power to preserve existing conditions while it was determining its own authority to grant in-junctive relief. The defendants, in making their private determination of the law, acted at their peril. Their disobedience is punishable as criminal contempt.”

However, it should be noted that the Court went on to say that:

“Although a different result would follow were the question of jurisdiction frivolous and not substantial, such contention would be idle here. The applicability of the Norris-LaGuardia Act to the United States in a case such as this had not previously received judicial consideration, and both the language of the Act and its legislative history indicated the substantial nature of the problem with which the District Court was faced.
“Proceeding further, we find impressive authority for the proposition that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. * * * ”

In the case before us there is no question of jurisdiction. As before stated, the pleadings of plaintiffs seeking the temporary restraining order affirmatively showed that the District Court had no jurisdiction to enjoin the condemnation proceedings in the County Court.

Respondents go further and rely on Smotherman v. United States, 186 F.2d 676 (1950), where the Tenth Circuit said:

“Appellants had no right to determine for themselves whether the court had jurisdiction to restrain their acts. That was a matter for the court to decide at the hearing on the motion. If at that time, the court found it was deprived of jurisdiction under the Norris-LaGuardia Act, appellants were then entitled to have the restraining order set aside and injunctive relief denied, but until it was set aside by orderly judicial process they were bound at their peril to heed its mandate.”

If this rule were applicable in Texas, it would be just as applicable to a temporary or permanent injunction as well as to a temporary restraining order. However, it is already settled in this state that an injunction which the district court has no jurisdiction to grant does not have to be obeyed and cannot be the basis of a contempt proceeding. Ex parte Barrett, 120 Tex. 311, 37 S.W.2d 741 (1931).

In Pitcock v. State, 91 Ark. 527, 121 S.W. 742, at page 745, (1909), the Arkansas Supreme Court stated the rule as follows:

“ ^ * * On the other hand, a court possesses the power of hearing and determining the question of its jurisdiction, and may, while so doing, require the parties to preserve the status of the subject-matter. U. S. v. De la Maza Arrendondo, 6 Pet. [691] 709, 8 L.Ed. 547; United States v. Shipp, 203 U.S. 563, 27 Sup.Ct. 165, 51 L.Ed. 319. However, when the pleadings show on their face that the court is wholly without jurisdiction of the subject-matter set forth therein, any preliminary order made or final judgment rendered is void. Willeford v. State, 43 Ark. 62.”

It is therefore ordered, adjudged and decreed that the contempt order of the 153rd District Court be set aside and that the relators Don R. Edmonds and Fred Sturm be discharged.

WALKER, Justice

(dissenting).

I respectfully dissent. It is well settled in this state that a temporary injunction issued by a court which had no jurisdiction of the subject matter is void and may be violated with impunity. Ex parte Barrett, 120 Tex. 311, 37 S.W.2d 741; Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588. I would not extend this rule to temporary restraining orders except in cases where the issuing court could not under any conceivable circumstances have power to grant in-junctive relief. For example, a court of equity is utterly without power to interfere with an election during its progress. The election officials should, therefore, be free to disregard a temporary restraining order which seeks to prevent their canvassing the returns or declaring the results of the election.

The present case does not fall within that exception, because the district court clearly has jurisdiction to enjoin a threatened trespass under color of a void condemnation proceeding. Lone Star Gas Co. v. City of Ft. Worth, 128 Tex. 392, 98 S.W.2d 799, 109 A.L.R. 374; Benat v. Dallas County, Tex.Civ.App., 266 S.W. 539 (writ ref.). See also Dallas County v. Plowman, 99 Tex. 509, 91 S.W. 221. In the injunction suit with which we are now concerned, the landowners came to the district court with their verified petition alleging that the condemnation proceedings were void for six different reasons, and at least two of the grounds alleged might well render such proceedings void. For example, the condemnation petition indicated that the City was acting under the power conferred by Article 1107, Vernon’s Ann.Tex.Civ.Stat. This statute does not authorize the taking of property for a drainage easement, and there is at least one appellate decision holding that an eminent domain action is void where the condemning authority proceeds under the wrong statute. O’Keefe v. Hudspeth County, Tex.Civ.App., 25 S.W.2d 625 (no writ). I mention this merely to show that the injunction suit was not “obviously and indisputably” outside the jurisdiction of the district court.

When such a petition was presented, it is my opinion that the district court had power to issue a valid and enforceable temporary restraining order to preserve the status quo until there was an opportunity to determine whether it had jurisdiction over the subject matter. That determination can and should be made at the hearing on the temporary injunction. If the court then erroneously concludes that it has jurisdiction, the party enjoined is free to violate the temporary injunction if he desires to do so.

As indicated by the majority opinion, the courts of other jurisdictions recognize that the orderly administration of justice re-quires that a court have a reasonable opportunity to determine its own jurisdiction. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L. Ed. 884; United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319; Smotherman v. United States, 10th Cir., 186 F.2d 676. In Aladdin Industries, Inc. v. Associated Transport, Inc., 45 Tenn.App. 329, 323 S.W.2d 222 (cer. den. 361 U.S. 865, 80 S.Ct. 117, 4 L.Ed.2d 104), certain shippers were granted a temporary injunction requiring various motor carriers to continue their customary service. The service had been discontinued because the drivers refused to cross picket lines. It was contended in a subsequent contempt proceeding that those who violated the injunction could not be held in contempt because the issuing court had no jurisdiction of the subject matter. In rejecting this argument, the appellate court said:

“But irrespective of whether he had jurisdiction in the sense that he could have entered final decrees that would have ultimately been held free from error, he had jurisdiction to determine all the issues, including that of his own jurisdiction, and to grant a temporary injunction to preserve the status quo pending such determination. And pending such determination no person was at liberty to defy the court or to aid any party defendant in a breach of the injunction.”

The courts have also said by way of dictum in these cases that the result would be different if the question of jurisdiction were frivolous or not substantial, but the decisions in which contempt convictions have been set aside on that ground involved temporary injunctions rather than temporary restraining orders. Pitcock v. State, 91 Ark. 527, 121 S.W. 742; Leeman v. Vocelka, 149 Neb. 702, 32 N.W.2d 274. My principal difference with the majority in the present case relates to the scope of this exception as applied to a temporary restraining order. We have already extended the exception beyond all reason where the violation of a temporary injunction is charged. The jurisdictional problem may be so difficult that able judges disagree sharply as to its solution. But when a court of last resort finally determines, perhaps after weeks of research and reflection, that the court issuing the temporary injunction had no jurisdiction to do so, we hold that the parties were free to violate its order from the outset.

That is not the situation which the courts have in mind when they speak of a frivolous question of jurisdiction. The scope of the exception they recognize was plainly defined by Mr. Justice Frankfurter as follows :

“Only when a court is so obviously traveling outside its orbit as to be merely usurping judicial forms and facilities, may an order issued by a court be disobeyed and treated as though it were a letter to a newspaper. Short of an indisputable want of authority on the part of a court, the very existence of a court presupposes its power to entertain a controversy, if only to decide, after deliberation, that it has no power over the particular controversy. Whether a defendant may be brought to the bar of justice is not for the defendant himself to decide.” United States v. United Mine Workers of America, supra.

In my opinion we should narrow rather than extend this exception where violation of a temporary restraining order is charged. There is no good reason for saying that our more liberal rule applicable to temporary injunctions must necessarily be applied to temporary restraining orders. A temporary injunction is entered after a hearing at which both parties may introduce evidence and present their legal contentions, and it remains in effect pending a trial on the merits. If the court erroneously concludes that it has jurisdiction after this opportunity to ascertain the facts and investigate the law, there is some basis for holding that the parties may disregard the temporary injunction without waiting for the same to be set aside on appeal.

A temporary restraining order is quite different. It is issued without notice or hearing to prevent immediate and irreparable damage. Under the provisions of Rule 680, Texas Rules of Civil Procedure, it may remain in force for an initial period of not more than ten days and may be extended only for a like period upon a showing of good cause or for a longer period by agreement of the party against whom it is directed. A motion to dissolve may be heard on two days’ or even less notice to the party obtaining the restraining order. It is not unreasonable then to require that the order be observed during the relatively brief period allowed the court for determining its own jurisdiction. Certainly the danger of irreparable and unlawful damage to the plaintiff outweighs whatever inconvenience the defendant might suffer as a result of the delay.

The relators in this case proceeded to render the entire controversy moot without suggesting to the district court that it might not have jurisdiction or giving the court an opportunity to pass on the contentions they now urge. Any rule which encourages conduct of that sort not only fosters disrespect for the law and the judicial process but also hampers the courts in their efforts to protect property and rights from unlawful invasion. If the drainage easements had run through the Vincent home and it later developed that the condemnation proceeding was void and that the district court did have jurisdiction, relators could have been held in contempt but that would be little comfort to those whose home had been destroyed. Whenever “a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls the ‘judicial power of the United .States’ would be a mere mockery.” Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797. I would remand relators to custody.

CALVERT, C. J., and STEAKLEY and GREENHILL, JJ., join in this dissent.


text:
    CITY OF DALLAS, Petitioner, v. Sid HOLCOMB et ux., Respondents.
    No. A-10369.
    Supreme Court of Texas.
    Oct. 14, 1964.
    Rehearing Denied Nov. 11, 1964.

      H. P. Kucera, City Atty., N. Alex Bick-ley, Dallas, W. H. Frank Barnes, Terrell, for petitioner.
    Robert K. Ramsey, Terrell, for respondents.
   PER CURIAM.

The application for writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure. So that there may be no question as to the effect •of the foregoing order, we expressly approve the holding of the Court of Civil Appeals (381 S.W.2d 347) that the trial •court erred in refusing to permit full cross-examination of the witness, Joe Compton, concerning the award made by the board ■of special commissioners in condemnation of which he was a member.


author: MORRISON, Judge.

text:
    Ernest OATMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 37254.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1964.
    Frank H. King, Terrell, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the unlawful sale of whiskey in a dry area; the punishment, a fine of $200.00 and six months in jail.

No statement of facts accompanies the record.

The State moves to dismiss this appeal on the ground that no notice of appeal appears in the minutes of the court. We find a docket entry, but such is not sufficient to confer jurisdiction upon this Court. Art. 827, Vernon’s Ann.C.C.P.; Clifton v. State, Tex.Cr.App., 329 S.W.2d 871.

The State’s motion is granted and the appeal is dismissed.


author: WOODLEY, Presiding Judge.

text:
    Ex parte David P. AYERS.
    No. 37232.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is a habeas corpus proceeding in which the appellant seeks relief from an order remanding him to custody for extradition to Louisiana to answer to a charge of theft of $1680.

The Executive Warrant and the demand of the Governor of Louisiana and supporting papers were introduced in evidence. The appellant offered no evidence.

The proceedings appear to be regular.

The judgment is affirmed.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Ex parte Oliver CALDWELL.
    No. 37007.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1964.
    Rehearing Denied Nov. 11, 1964.
    See also 383 S.W.2d 590.

      Emmett Colvin, Jr., Dallas, for relator.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, William F. Alexander, Edwin L. Davis, and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

On March 5, 1964, this Court received the record of a death penalty conviction against relator, but such record contained no notice of appeal. After the expiration of the term of the trial court in which relator was convicted, we received an application for writ of habeas corpus prepared by an attorney other than the one who represented relator at his trial, which alleged that relator was illegally restrained in that he had been denied the right of appeal to this Court from such death penalty conviction because of the inexperience of relator’s court appointed attorney, who failed to give notice of appeal during the term of court in which such death penalty had been assessed, thereby depriving this Court of the right to consider the record before us as an appeal.

In response to such application this Court entered an order requiring the trial judge to hold a hearing and ascertain the facts relating to the allegations in the application. Such hearing was held, and we learn therefrom that relator was indigent, that his court appointed attorney represented relator without the assistance of other counsel, and that such attorney had never before represented an accused in a case in which the death penalty was sought and, in fact, had been licensed to practice only a few years and had been engaged in the practice of criminal law a much shorter length of time.

We quote from his testimony at the hearing:

“A * * * And the jury came back in and they returned the verdict, and of course, the bailiff took Oliver out rapidly. My wife was here and we just went on home as I recall it.
“Q Now, from that time on, did you ever file a motion for a new trial ?
“A No, sir.
“Q Did you ever file or announce in open court or give a notice of appeal?
“A No, sir.”

The term of court and the time for giving notice of appeal had expired before other counsel was appointed to represent the relator on appeal or review of the conviction.

From the above it is apparent that relator was deprived of his right to a review of his conviction on appeal.

Where it appears that the rights of an indigent accused were not properly safeguarded, a conviction with the death penalty should be reversed. 14 American Jurisprudence, p. 888, Sec. 174.

The writ of habeas corpus is granted, the judgment of conviction set aside and relator is ordered to stand trial on the indictment pending against him in the Criminal District Court # 3 of Dallas County.

It is so ordered.

ON STATE’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

The State moves for rehearing in this cause and in cause No. 36,882, Caldwell v. State of Texas, Tex.Cr.App., 383 S.W.2d 590, in which the appeal was dismissed for want of jurisdiction.

We treat the State’s motion as a motion to re-instate the appeal in cause No. 36,882 .and for rehearing in this cause.

The State is not in disagreement with the long established precedent that no death penalty will be affirmed without a statement of facts which this Court may review in passing upon the sufficiency of the evidence.

We do not understand that the States takes issue with our holding that the conviction cannot be successfully attacked by habeas corpus on the ground of insufficient evidence.

There can be no doubt that, in the absence of a notice of appeal, this Court is without jurisdiction to enter any order other than to dismiss the appeal. Cases are legion where this rule has been invoked by the state. Many such cases are listed under Art. 827 Vernon’s Ann.C.C.P., Note 2.

The State’s position here is that the transcript and statement of facts in our cause No. 36,882 were furnished upon request of the State, and the State has requested that this Court “consider said case as though a timely notice of appeal had been filed, and by its action waived all objections to the necessity of a timely notice of appeal.”

Jurisdiction of a court must be legally invoked, and when not legally invoked, the power of the court to act is as absent as if it did not exist. State v. Olsen (Tex.) 360 S.W.2d 398.

Art. 827 V.A.C.C.P. prescribes the manner by which the Court of Criminal Appeals acquires jurisdiction of an appeal. Where the mode of acquiring jurisdiction is prescribed by statute, substantial compliance therewith is essential or the proceedings will be a nullity. 21 C.J.S. Courts § 80.

It follows that this Court is without authority to entertain the appeal in our cause No. 36,882 by consent, request or waiver of the State.

The State’s motion for rehearing in this cause and to re-instate the appeal in cause No. 36,882 is overruled.


text:
    Oliver CALDWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 36882.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1964.
    Motion to Reinstate Appeal Denied Nov. 11, 1964.
    Emmett Colvin, Jr., Dallas, appointed counsel on appeal only, for appellant.
    Henry Wade, Dist. Atty., W. F. Alexander, Edwin Davis and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an attempted appeal from a death penalty conviction for the offense of murder. This is the same case as our Cause No. 37,007, this day decided, Tex.Cr., 383 S.W. 2d 587, from which it will appear that no notice of appeal was given during the term of court at which relator was convicted.

Though this Court has many times refused to affirm a death penalty case where ho statement of facts has been filed and has considered statements of facts filed long after the time provided by the statute had expired, we are without jurisdiction to entertain an appeal in the absence of a timely notice of appeal.

The appeal is dismissed.


text:
    Ramon Diaz PEREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 37214.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1964.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 30 days in jail and a fine of $50.00.

Mrs. Coleman testified that as she and her family were driving toward San Angelo an automobile passed them and then slowed down, but they were unable to pass it because it was being driven back and forth across the center stripe. She stated that the automobile finally came to a halt and that she observed the appellant, who was the driver, and then proceeded into the city of Carlsbad where she spoke to the Highway Patrol, and that she later saw appellant in the custody of the officers.

Highway Patrolmen Sanders and Williamson testified that after meeting Mrs. Coleman they overtook the automobile being driven by appellant, observed it cross the center stripe several times and when 'they finally brought it to a hault, observed appellant and from his appearance, the manner of his speech and seeing him stagger, they expressed the opinion that he was intoxicated. In the automobile both empty and full containers of beer were found. They testified that they secured appellant’s consent to the taking of a blood sample, and that after Dr. Wilhelm had taken the same it was forwarded to the Department of Public Safety in Midland.

Wayne Merrett, Chemist of the Department of Public Safety, testified that he analyzed the sample in question and found that it contained .20 percent of alcohol by weight which was indicative of intoxication.

Appellant testified in the absence of the jury that the officers told him that if he did not plead guilty they were going to give him a blood test and because of this he signed the consent form.

No objections or exceptions were made to the court’s. charge and appellant is in no position to complain of the failure to submit the issue of whether or not the consent was voluntarily given. Sartain v. State, 171 Tex.Cr.R. 192, 346 S.W.2d 337.

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


text:
    Ramon CEDILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 37221.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    Robinson & Wilson, Abilene, Ben Nie-decken, Anson, J. W. Reid (On Appeal Only), Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appellant was one of several charged in separate indictments with having voluntarily and with malice aforethought killed Antonio Meza “by stomping and kicking him with his * * * feet, and by beating him and striking him with his hands and feet * *

In a trial before a jury upon his plea of not guilty, the appellant was found guilty of murder without malice and assessed the minimum punishment. He appeals from said conviction and urges that the evidence is insufficient to sustain it.

Our able State’s Attorney concedes that the evidence is insufficient and does not seek affirmance. It would serve no useful purpose to set out the evidence and demonstrate the correctness of the contention of both the appellant and our State’s Attorney.

In the event of another trial without the indictment against appellant’s co-defendant Gallardo having been disposed of, motion for severance should be granted.

The judgment is reversed and the cause remanded.


text:
    Ex parte Harry L. WASHBURN.
    No. 37248.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    Clyde W. Woody, Houston, for appellant.
    Tom Kenyon, Dist. Atty., Ogden Bass, Asst. Dist. Atty., Angleton, Sam R. Wilson, Asst. Atty. Gen., James A. Moore, Houston, William I. Marschall, San Angelo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Upon the application of petitioner on May 19, 1964, the Judge of the 130th District Court entered a show cause order and set a hearing for June 2. At the conclusion of such hearing the court found that none of the material allegations of the petition for writ of habeas corpus on which petitioner sought relief were true and that petitioner was legally held in custody.

The record of such hearing was certified to this Court and we will treat it as an original application for writ of habeas corpus filed in this Court under Article 119, Vernon’s Ann.C.C.P.

In his brief petitioner contends that the State and its agents suppressed the testimony of Mrs. Ruby Mitchell at petitioner’s trial which resulted in his conviction for murder which was by this Court finally affirmed in 1958 in Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627. We have examined this 455 page record with care and are in complete accord with the trial court’s findings that no suppression of evidence has been shown.

He further asserts that Judge Woodley of this Court was disqualified to participate in the decision sustaining his conviction. This contention was fully answered by the opinion of Judge Davidson and the writer on second motion for rehearing in petitioner’s case.

The writ of habeas corpus is denied.

WOODLEY, J., took no part in the preparation of this opinion.


author: BELCHER, Commissioner.

text:
    Santiago CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 37203.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    No attorney of record on appeal for appellant.
    Sam L. Jones, Jr., Dist. Atty., John R. Haas and Douglas Tinker, Asst. Dist Attys., Corpus ■ Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was sentenced to life imprisonment upon being convicted for robbery by assault and having been twice previously convicted of felony offenses less than capital.

The testimony of the state reveals that the appellant was known to and identified by a waitress employed in a lounge, which he entered and then he and Bernal went into the rest room, later came out, and after a brief time, both went outside the lounge. In a short time they returned, each wearing a handkerchief over his face. The appellant stood by the door with a large knife in his hand as Bernal approached the waitress with a pistol in hand, saying, “Give me the money or I’ll shoot.” Because the waitress was in fear of serious bodily injury or her life, she put about thirty-five dollars in a sack and gave it to Bernal without her consent. When a customer in the lounge started to move, the appellant, pointing a knife toward him, said, “Don’t move or I’ll get you.” While testifying, the waitress identified a pistol and a knife exhibited to her as being similar to those used by the appellant and Bernal. As they left Bernal said, “You better not say nothing, I am going to get you.”

When the officers arrived the waitress reported the robbery, and gave them the name of the appellant as being one of the persons who robbed her.

A short time after the robbery, Officers Morris and Perez apprehended the appellant in a nearby cafe. Appellant was carrying a fully loaded .22 caliber pistol in his right front trousers pocket. The officers also found a knife in the alley behind the lounge.

Proof was offered of the two prior convictions as alleged and that the appellant was the same person so convicted. While testifying in his own behalf, the appellant admitted said convictions.

The appellant testified that he bought the pistol on the morning of the day of the robbery for protection against the enemies he had made while in prison; that he met Bernal shortly before the robbery; that they drank several beers and he (appellant) drank a bottle of wine. After seeing the pistol which appellant had with him in a sack, Bernal took the pistol stating that he wanted to rob a place. Appellant refused to aid him. Bernal insisted and appellant told him not to get him involved. Then Bernal threw a knife to him and approached the waitress in the lounge as appellant stood outside the door, undecided, according to appellant’s testimony, whether to take the pistol from him, as Bernal might shoot him. When Bernal came out of the lounge he threw the pistol toward appellant and ran, and appellant picked it up. Appellant also testified that he never took any of the money from the lounge; that since he did not do anything, he waited in a nearby cafe for the officers to catch him; he explained to them how the robbery occurred and told them that Bernal did it.

There are no formal bills of exception and no objections to the court’s charge. The informal bills in the statement of facts have been considered and they do not show error.

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

Opinion approved by the Court.


author: WOODLEY,

text:
    H. K. STECHER, Appellant, v. The STATE of Texas, Appellee.
    No. 37124.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1964.
    J. Charles Whitfield, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Theodore P. Busch, Asst Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY,

-Presiding Judge

The offense is violation of an ordinance of the City of Houston which provides that it shall be unlawful to park or stand any vehicle other than a commercial vehicle in any truck loading zone during certain hours. The punishment is a fine of $150.

Appellant and the nature of the offense are the same as in Stecher v. State, Tex. Cr.App., 371 S.W.2d 568; Stecher v. State, Tex.Cr.App., 365 S.W.2d 800; Stecher v. State, 172 Tex.Cr.R. 477, 358 S.W.2d 380. A prior conviction for this same offense was before this Court in Stecher v. State, Tex. Cr.App., 373 S.W.2d 255, in which case this Court reversed and remanded for new trial because the bailiff answered a question asked by the jury.

Appellant’s complaint that the trial judge overruled his motion to quash the information (complaint) is not before us, the motion not being in writing as required by Art. 513 C.C.P.

No witness testified that appellant parked his automobile in the zone in question and the state relies on the presumption created by Section 41-141, 1958 Code of Ordinances of Houston, Ch. 41, XIII, which reads as follows:

“Presumption of parking by owner when car illegally parked.
“When any person is charged with having parked or left standing a vehicle on any street in the city at a place on said street where parking of vehicles is prohibited, or with parking such vehicle on said street in a manner which violates the manner of parking a vehicle is designated, or with parking such vehicle for a length of time in excess of that allowed in the space where said vehicle was parked, proof that said vehicle was, at the date of the offense alleged, owned by the person charged with the offense, shall constitute prima facie evidence that said vehicle was parked or left standing at the place charged by said owner, but the owner shall have the right to introduce evidence to show that said vehicle was not parked by him as charged in the complaint.”

The appellant did not testify and offered no evidence.

Appellant’s brief complains that the state failed to establish by proper evidence the ownership of the parked vehicle. He argues that the only evidence of ownership offered by the state was that of the policeman testifying to what the appellant “is alleged to have said in another court.”

Police Officer Arredondo testified to having seen a regular passenger four door Dodge Sedan with regular license plates RN 300 parked in a truck zone about 9:30 A.M.

He testified that he issued the parking ticket which was introduced in evidence.

Excerpts from the ordinances of the City of Houston and report from the Department of Traffic and Transportation were introduced to establish that the marked zone where the vehicle was parked was a truck zone.

Arredondo testified on direct examination that he knew the appellant; had seen the appellant driving the vehicle previously; had seen no one other than the appellant driving it, and had heard the appellant testify under oath that he owned such vehicle.

On cross-examination the witness Arre-dondo was asked, and answered:

“Q. You know he has two (2) cars?
“A. I only recognized one (1) of his cars, I saw it all the time.
* * # * * *
“Q. You didn’t see him park that vehicle on the 5th day of April, 1960?
“A. No sir.
“Q. You didn’t see him drive away from that location, if he did ?
“A. No sir, I didn’t.
“Q. You only saw a ’49 Dodge automobile that you knew belonged to H. K. Stecher parked at that particular location?
“A. Yes sir.
i}c í|í ‡ ifc *
“Q. Based on your familiarity with the car what does he do with this vehicle?
“A. He delivers forms and stuff, I have seen him unload and load that.”

We fin'd the evidence sufficient to show that the appellant owned the parked vehicle •and overrule the contention that it was incumbent upon the state to prove ownership by certificate of title or by records from the Tax Collector’s Office.

Other grounds for reversal, some of which are those decided against the appellant in former appeals, present no ground for reversal.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Ex parte Billie Thomas ADAMS.
    No. 37526.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1964.
    Rehearing Denied Nov. 25, 1964.
    Will Gray, Houston, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Relator, an inmate of the Texas Department of Corrections, seeks his release by writ of habeas corpus, alleging that the fifty-year sentence under which he is confined is void because he was permitted to waive a jury and enter a plea of guilty to the capital offense of murder.

Reliance is had upon the decisions of this court which hold that under the Constitution and laws of this State a jury cannot be waived by an accused in a capital case. Art. 1, Constitution of Texas, Vernon’s Ann.St.; Arts. 10, 10a, 11, and 12, Vernon’s Ann.C.C.P.; Kemp v. State, 159 Tex.Cr.R. 110, 261 S.W.2d 573; Ex parte Stewart, 155 Tex.Cr.R. 479,. 236 S.W.2d 799; Ex parte Traxler, 147 Tex.Cr.R. 661, 184 S.W. 2d 286; Ex parte Padgett, 161 Tex.Cr.R. 498, 278 S.W.2d 865.

While the record reflects that relator’s confinement is under a judgment and sentence entered in Cause No. 10,700, in the 20th Judicial District Court of Milam County on August 20, 1952, upon his waiver of a trial by jury and plea of guilty to an indictment charging the offense of murder with malice aforethought, it is further shown that before relator was permitted to waive a jury and enter his plea it was established by competent evidence that he was under the age of seventeen years on the date the offense charged against him was committed but was over the age of seventeen years on the date the indictment was returned against him and on the date he entered his plea of guilty thereto.

Art. 31, Vernon’s Ann.P.C., provides:
“A person for an offense committed before he arrived at the age of seventeen years shall in no case be punished with death.”

It has been held that, by force of this article, murder committed by a person under seventeen years of age is not a capital offense and is, per se, bailable. Ex parte Walker, 28 Tex.App. 246, 13 S.W. 861; Ex parte Enderli, 110 Tex.Cr.R. 629, 10 S.W.2d 543. In Walker v. State, 28 Tex. App. 503, 13 S.W. 860, it was held that in a prosecution for murder where it was admitted by the state that the accused was under seventeen years of age when the offense was committed, it was not a “capital •case” and the accused was not entitled to a special venue.

Applying such reasoning to the facts here presented, we hold that when proof was made that relator was under seventeen years of age when the offense was committed, the case pending against him was no longer a capital case and he could waive a trial by jury and enter his plea of guilty before the court.

The contention that the judgment of conviction is void is overruled.

The relief prayed for is denied.

Opinion approved by the Court


author: BELCHER, Judge.

text:
    Ray Arcemus HOWARD, Appellant, v. The STATE of Texas, Appellee.
    No. 37105.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1964.
    Rehearing Denied Nov. 25, 1964.
    Henry T. Ray, Amarillo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Judge.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of fifty dollars.

No statement of facts of the evidence on the merits accompanies the record. There are no formal bills of exception, and there are no requested charges or exceptions to the court’s charge.

Appellant complains of the voir dire examination and also claims that he was forced to use peremptory challenges on certain prospective jurors in the selection of the jury. In the absence of a bill of exception these matters are not presented for review.

Error is urged on the ground of jury misconduct. This contention is presented in the motion for new trial and a separate statement of facts. There is no showing that the motion was presented to or acted upon by the trial judge. Hence nothing is presented for review. Art. 760e, Vernon’s Ann.C.C.P.

The judgment is affirmed.


text:
    Ronald Dewey BEAL, Appellant, v. The STATE of Texas, Appellee.
    No. 37211.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Jimmy James, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is aggravated assault; the punishment, 180 days in jail.

Count 3 of the information, upon which the conviction rests, alleged an assault upon Patrick Cropper with premeditated design by the use of his hands and feet, alleged to be a means calculated to inflict great bodily injury.

The conviction cannot stand because of a variance between the information and the complaint and because the complaint as to the assault' charged in Count 3 is fatally defective in that it alleges that the appellant made the assault upon himself.

The complaint upon which Count 3 of the information was based alleged that “Ronald Dewey Béal did unlawfully, with premeditated design and by the use of means calculated to inflict great bodily injury, to wit, his hands and feet, in and upon Ronald Dewey Beal make an aggravated assault j}i iK »

The judgment is reversed and the cause remanded.


text:
    Ex parte Darrell Dwain PFOUTS.
    No. 37472.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1964.
    No attorney of record on appeal for appellant. . ;
    Leon B. Douglas, State’s Atty., Austin,, for the State.
   DICE, Commissioner.

This is an appeal from an order entered In a habeas corpus proceeding by Honorable Max. M. Rogers, Judge of the 12th Judicial District Court of Walker County, remanding appellant to custody for extraction to the State of Ohio.

The executive warrant issued by Governor John Connally, of Texas, directing the .arrest of appellant and his delivery to the .agents of the State of Ohio for return to that state, was introduced in evidence. Also introduced in evidence by the state was the requisition of the governor of Ohio and ■certain authenticated papers annexed thereto.

The requisition and accompanying papers •show that on October 15, 1953, appellant was convicted in the Court of Common Pleas, of Wayne County, Ohio, of the offense of cutting and stabbing with intent •to kill or wound, and was sentenced to •serve an indeterminate term of one to •twenty years in the Ohio state penitentiary. Following his incarceration, appellant was •granted several paroles by the Ohio Pardon and Parole Commission, the last being a ■ conditional parole granted on October 22, 1962. On March 15, 1963, appellant was •declared a parole violator and, after issuance of a state warrant for his arrest on September 9, 1963, request was made to the •governor of Ohio on July 10, 1964, by the ■ chairman of the Ohio Pardon and Parole Commission for the issuance of a requisition to the governor of Texas for appellant’s extradition. It is further shown that •on May 17, 1963, appellant was convicted of •the offense of burglary in a district court of Dallas County and sentenced to serve two years in the penitentiary of this state. He was received in the penitentiary on July 30, 1963, and was discharged on July 27, 1964.

At the hearing, appellant, testifying in 'his own behalf, insisted that he was not a fugitive from justice because he had per-mission from his parole officer to seek employment in Dallas, Texas.

We find no merit in his contention, as the record shows that he was subject to extradition to the State of Ohio as a parole violator, under the provisions of Section 3, Art. 1008a, Vernon’s Ann.C.C.P., the Uniform Criminal Extradition Act. Ex parte Siemon, 167 Tex.Cr.R. 313, 319 S.W.2d 716.

The judgment of the trial court remanding appellant to custody is affirmed.

Opinion approved by the Court.


text:
    Juan B. SALDANA, Appellant, v. The STATE of Texas, Appellee.
    No. 36915.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1964.
    Rehearing Denied Nov. 25, 1964.

      Marvin F. Foster, Jr., Corpus Christi, for appellant.
    Sam L. Jones, Jr., Dist. Atty., John R. Haas, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is possession of marijuana; the punishment, fifteen years. Our prior opinion is withdrawn and the following substituted in lieu thereof.

The testimony of the State shows that one and a half pounds of marijuana was found under the seat of the taxi in which appellant was riding. During the arrest, appellant stated the marijuana was his. Appellant’s voluntary written statement, properly introduced into evidence, further shows appellant to be guilty of the crime charged.

Lt. Wilkins, while assisting the narcotics squad of the Corpus Christi Police, apprehended appellant when the taxi in which he was riding turned into the driveway of a tourist court. A search of the vehicle resulted in the finding of two packages of marijuana.

Horace Galvan was a passenger in the taxi with appellant.

Prior to the trial and again at the-close of the State’s case, appellant moved the court to require the State to produce for his inspection the “written statement of one Horace Galvan”, which motions were overruled. Galvan was not a witness at the trial and the rule in Gaskin v. State, 172 Tex.Cr. R. 7, 353 S.W.2d 467, has no application. We find no error in the court’s ruling.

Appellant’s most serious complaint related to the legality of his arrest and the incident, search of the taxicab.

An ordinance of the City of Corpus-Christi was introduced into evidence. This, ordinance authorized arrest without a warrant of persons found in suspicious places, and circumstances which reasonably show that such person is about to commit some-offense against the law. Such ordinance-is authorized by Article 214, Vernon’s Ann. C.C.P.

Wilkins testified that he had two-cabins at the Omaha Courts under surveillance for some time prior to the night in question and that in early May the cabins-had been under twenty-four hour a day surveillance because the narcotics squad was trying to “make” a certain “buyer” who-had prostitutes working for him. He stated that he knew appellant and had previously arrested him for pimping for Gomez, the occupant of cabin 13. At some time during the earlier surveillance the Gomez cabin had been searched and an occupant charged with possession of narcotic paraphernalia.

At 3:00 a. m. on the night in question Wilkins was keeping cabin 13 and cabin 22 under surveillance. He states that a cab came into the courts, and he shined a light into the cab. The taxicab came to a halt on the volition of the driver. In the cab Wilkins observed the driver and appellant seated in the front seat and a passenger in the back seat. When the appellant saw Wilkins, he turned to the back seat, and then Wilkins heard crinkling noises and observed the passenger stuffing something under the front seat. It was after this that Wilkins said, “hold it” and went to investigate the suspicious actions and to recover the packages stuffed under the front seat. Both appellant and the passenger in the back seat were later charged with possession of marijuana.

We have concluded that these facts constituted sufficient probable cause for arrest without a warrant by Wilkins. The arrest being legal, the subsequent search was also legal.

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


text:
    Joseph Howard WINGATE, Appellant, v. The STATE of Texas, Appellee.
    No. 37148.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1964.

      Aubrey H. Poole, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Ruben Hope, Asst. Dist. Attys., Plouston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted in the Corporation Court of the City of Houston upon a complaint charging the offense of negligent collision, and assessed a fine of $50. In an appeal to the County Criminal Court at Law No. 2 of Harris County, upon a trial de novo, he was again convicted and assessed a fine of $200. From the latter conviction he prosecutes this appeal.

By stipulation of the parties it is shown that the prosecution and conviction are under a certain ordinance of the City of Houston, which provides that if any driver or operator of a vehicle on any public street within the corporate limits of the city shall with negligence collide or cause damage to any other vehicle, he shall be deemed guilty of the offense of negligent collision and be punished by a fine of not less than five dollars ($5) nor more than two hundred dollars ($200). The term “negligence” is defined in the ordinance as “the failure to use that degree of care that a reasonable and prudent person would use under the same and similar circumstances.”'

The complaint charged that the appellant,, while operating a motor vehicle upon a public street in the city of Houston, did with negligence collide with and cause damage to another vehicle.

Four separate acts of negligence by appellant were alleged as having caused damage to the other vehicle.

Three of the alleged acts of negligence, #1, 2, and 4, were submitted to the jury, which acts, as alleged in the complaint, were as follows:

“1. The said Defendant did then, and there fail to guide said motor vehicle driven by him away from said other motor vehicle, as a person of ordinary prudence would have done under like circumstances; and
“2. The said Defendant did fail to-keep a proper lookout for said other motor vehicle, which was then and there on said public street, and with which said Defendant could have seen in time to avoid colliding, had said Defendant been looking in the direction in which he was going; and ******
“4. The said Defendant did not then and there have said motor vehicle, which he was driving, under proper control by reason that said Defendant failed to apply his brakes with sufficient force to stop the vehicle driven by him before colliding with said other vehicle.”

Appellant moved to quash the complaint on the grounds (1) that it was multifarious and did not allege with reasonable certainty the act or acts relied upon to constitute negligence, and (2) such complaint was predicated upon an unconstitutional ordinance in that it authorized conviction for ordinary negligence.

While the court’s action in overruling the motion to quash is not properly before us for review in the absence of an •exception by appellant to the court’s ruling, we observe that in the recent case of Payne v. State, Tex.Cr.App., 374 S.W.2d 235, similar allegations were held to charge with reasonable certainty the acts relied upon to constitute negligence, as required by Art. 408a, Vernon’s Ann.C.C.P., and to not ■charge separate offenses but to merely allege several ways of committing the one offense charged.

In the case of Ex parte Mooney, 106 Tex.Cr.R. 156, 291 S.W. 246, a similar or•dinance of the city of San Antonio making negligent collision a misdemeanor offense, which ordinance defined negligence as “ ‘the want of ordinary care and caution as a person of ordinary prudence would use under like circumstances,’ ” was upheld by this ■court. See, also, Ex parte Wilson, Tex.Cr. App., 374 S.W.2d 892, where this same or•dinance of the City of Houston, making ■penal the act of negligent collision, was -upheld as against the contention that it was in conflict with Art. 827a, Sec. 8, subsection (1) (a), Vernon’s Ann.P.C., since repealed by the enactment of Art. 6701d, Art. JÍIX, Sec. 166(b), Vernon’s Ann.Civ.St.

We overrule appellant’s contention that the ordinance in question is invalid.

Briefly, the evidence shows that on the date alleged, the appellant, while driving his automobile upon a public street in the city of Houston, was involved in a collision with another automobile being driven by the state’s witness Robert Macek. The collision occurred at the intersection of New Castle and Staunton Streets. Appellant was traveling east on Staunton, and the state’s witness Macek was traveling •south on New Castle. Riding with appellant in his automobile at the time of the collision was the witness Ethel Cook and riding with the state’s witness was his wife.

At the trial, Mr. and Mrs. Macek testified that their automobile was the first vehicle to enter the intersection before the collision and that appellant did not apply his brakes.

Appellant and his companion, Mrs. Cook, testified that his automobile first entered the intersection and that he did apply the brakes on his vehicle before the collision.

The jury resolved the conflict in the testimony against the appellant, and we find the evidence sufficient to support their verdict.

Complaint is made by appellant to certain rulings of the court on the admission and rejection of testimony.

It is first contended that the court erred in permitting the prosecuting witness Robert Macek to testify that appellant’s companion, Mrs. Cook, was intoxicated at the scene of the collision.

We find no error in the court’s ruling, as such testimony with reference to the companion’s sobriety was admissible as a part of the res gestae. McClain v. State, Tex. Cr.App., 372 S.W.2d 341.

It is also insisted that the court erred in admitting evidence over appellant’s objection that he had been previously convicted of a misdemeanor offense.

The record reflects that on his re-cross-examination by state’s counsel, appellant was asked whether he had paid a fine on September 10, 1963, for driving without a license. Appellant’s general objection was overruled; however, the question was not answered. Thereafter, the appellant was asked: “You are the same man who paid a fine of fifteen dollars ($15.00) at the City of Houston for driving without a license, ?” to which question appellant made no objection and answered “Yes sir.”

The testimony being before the court without objection, appellant is in no position to complain on appeal. Freeman v. State, 172 Tex.Cr.R. 389, 357 S.W.2d 757.

The trial court’s refusal to call the prosecuting attorney as a witness for the purpose of being questioned by appellant’s counsel “about the legal ethics and what he is supposed to do as a prosecuting attorney” is to be commended and clearly does not reflect error.

We have carefully reviewed the court’s charge in the light of appellant’s objections thereto and find no reversible error.

The court’s refusal to give appellant’s requested charges on apparent danger of causing injury, in a prosecution of this nature, was not error. Nor was there any error in refusing appellant’s request that the word “wanton” be inserted in the charge before the words “negligent” [sic] and “negligence,” as appellant’s guilt under the ordinance was not dependent upon a finding that his acts were wanton or wilful but upon a finding that he was guilty of ordinary negligence.

The judgment is affirmed.

Opinion approved by the Court


author: McDonald, judge. MORRISON, Judge.

text:
    Roy Allen MELANCON, Appellant, v. The STATE of Texas, Appellee.
    No. 37025.
    Court of Criminal Appeals of Texas.
    June 17, 1964.
    Rehearing Denied Oct. 14, 1964.
    Second Motion for Rehearing Denied Nov. 18, 1964.
    Louis Dugas, Jr., Orange, for appellant.
    W. C. Lindsey, Dist. Atty., John R. De Witt, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is rape by force; the punishment, twelve years confinement in the state penitentiary.

The state’s evidence reflects that the appellant forced the prosecutrix to stop her car while driving home from work, around 11:15 P.M. on the night in question. Appellant then approached her car, identified himself as a police officer, and said he was taking her to jail. His destination, however, was not in truth the city jail, as he drove to a lonely road. After some struggle in which the back of prosecutrix’ dress was torn off and threats by appellant with a pistol, prosecutrix was raped.

The rape was reported to the police the next day and prosecutrix was examined by a medical doctor who testified that she had had intercourse within 24 hours prior to the examination. The husband of the prose-cutrix testified that they had not had intercourse for a week prior to the assault.

The prosecutrix, about a week later, in the company of her husband and a minister saw her assailant (who she identified as appellant) driving his car in Port Arthur, whereupon she took down his license number and reported the same to the police. Through a description of appellant’s car and the license number so acquired, an arrest of appellant was subsequently made.

Prosecutrix identified in court a piece of her dress which was found at the scene of the attack, and also identified a thermos jug, a piece of iron, a western hat and an imitation pistol, which had been taken from appellant’s car during his arrest, as being the same objects that were in the car of her assailant the night of the attack.

Casts of tire tracks at the scene of the assault were introduced into evidence and it was shown that those casts matched a tire from appellant’s car.

Through his ex-wife and his parents appellant’s defense of alibi was presented. The defensive theory was rejected by the jury and the evidence is sufficient to support their verdict.

Appellant in his brief relies upon two propositions of law for reversal, the first being that the trial court erred in allowing the state’s witness Marilyn Harraman to testify that appellant had at 3:00 P.M. the afternoon of the assault, stopped his car and told her and her girl friend that he was a police officer, showed them some money and said if they would get in the car he would give them all the money they wanted.

We are not called on to decide whether this evidence was admissible as the record reflects that no objection of any kind was interposed by the appellant until the witness had testified to substantially all the evidence here complained of. The objection coming as it did at the conclusion of the testimony was too late. Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612, and cases cited therein; 5 Tex.Jur.2d Sec. 39.

Appellant contends, secondly, that error was committed when the trial court allowed testimony concerning appellant’s arrest without a warrant and evidence relative to a search then made, as such arrest was illegal. Again we are constrained to conclude that appellant’s contention is without merit. While we are convinced that the arrest was legal under the requirements of Article 215, Vernon’s Ann.C.C.P., we do not deem it necessary to illustrate our reasoning in this regard as three of the four principal objects found by the search of the automobile were introduced without objection. Following the reasoning in Gephart, supra, any error was not preserved for review by this Court.

Finding the evidence sufficient to support the jury’s verdict, and no reversible error appearing, the judgment is affirmed.

On Appellant’s Motion for Rehearing

MORRISON, Judge.

Appellant strenuously takes us to task for the holding in our original opinion that his objection to the testimony of the State’s witness Marilyn Harraman came too late, and insists that the objection was timely made.

Upon a re-examination of the record we remain convinced that the witness was permitted to testify to practically all the events which she observed before a proper objection was made, and further find that at the close of her testimony when the court was made to understand fully the nature of appellant’s complaint, he instructed the jury specifically not to consider the girl’s testimony about the offer of money .and the invitation to take a ride and to disregard the same and consider it for no purpose in the case. Such instruction, in ■our opinion, was sufficient to cure any error in admitting the witness’s testimony. Harris v. State, Tex.Cr.App., 375 S.W.2d 310, and authorities there cited.

Remaining convinced that a proper disposition was made of the case on original submission, the motion for rehearing is overruled.


text:
    Joe RAMIREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 37173.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    Mario G. Obledo, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., John G. Benavides, Raymond A. Wietzel and Earl C. Hill, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, enhanced under Art. 62, Vernon’s Ann.P.C., by reason of a prior conviction for an offense of like character, twelve years.

The state’s evidence shows that the prosecuting witnesses, Joe and Anita Guillen, operated the Gaslite Lounge, located at 2518 Culebra Street in the city of San Antonio.

Mrs. Guillen testified that on the night in question she closed the place around midnight and before leaving she locked all doors, checked all windows, and was sure that no windows were broken. She stated that after she left the place, the appellant, who had been inside drinking beer, accompanied her and some friends to a restaurant, where they ate a meal. After finishing their meal, they left in the witnesses’ automobile and appellant got out of the car at the corner of Culebra and San Manuel.

Officer Cruz de la Rosa, Jr., testified that between 1:30 and 2:00 a. m., on the same night, while driving by the Gaslite Lounge, he observed a front plate glass window broken in the building. He got out of his car and as he walked toward the window he heard noises and observed the appellant inside the building, crouched down by a door which he was trying to open. As he started inside the building the appellant opened the door, ran out, and was caught by the witness and other officers when he fell to the ground after being pursued for some two hundred feet.

It was also shown that when appellant was picked up by the officers a screwdriver was lying on the ground under him and that there were pry marks on a machine inside the building.

It was also shown that appellant did not have the permission of the owners of the premises to break and enter the building on the night in question.

Proof of appellant’s prior conviction for burglary, alleged for enhancement, was made by the introduction in evidence of certain authenticated prison records and comparison of fingerprints in the manner which has been approved by this court.

Testifying as a witness in his own behalf, appellant admitted being in the lounge on the night in question but denied breaking and entering the building. Appellant stated that the window was broken and a door was open when he arrived at the scene and that he went inside to call the police. Appellant also admitted having been convicted, in 1961, of the offense of burglary, alleged in the indictment for enhancement, and also admitted that he had been convicted of shoplifting in the year 1963.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of circumstantial evidence.

Appellant predicates his appeal upon three formal bills of exception.

By bill of exception #1, appellant complains that the court erred in overruling his motion to quash the jury panel because he was brought before the panel in a hallway outside the courtroom at a noon recess and exhibited to them while handcuffed.

The bill, as qualified, certifies that there was no other way to bring the appellant into the courtroom than through the hall where the jury panel was being held pending disposition of other criminal business in the courtroom and that the regulations of the sheriff required, for the protection of the public as well as the accused, that he be handcuffed until he was brought into the courtroom. The bill does not certify to any evidence adduced upon the hearing of the motion and there is no showing of any injury or prejudice to appellant. We perceive no reversible error in the bill. Burks v. State, 50 Tex.Cr.R. 47, 94 S.W. 1040; Mouton v. State, 155 Tex.Cr.R. 450, 235 S.W.2d 645.

Bill of exception #2 presents appellant’s complaint to the court’s action in admitting in evidence the prison records (state’s exhibit #2) showing his prior conviction, alleged for enhancement, on the ground that the same were not properly authenticated. Appellant is in no position to complain of the admission of such exhibit in evidence, in view of his judicial admission in open court that he had been previously convicted as alleged. Womble v. State, 165 Tex.Cr.R. 23, 301 S.W.2d 928; Sowers v. State, 157 Tex.C.R. 345, 248 S.W.2d 949.

Appellant’s remaining bill of exception, #3, is to the court’s action in overruling his motion for an instructed verdict of not guilty, made at the conclusion of the state’s case in chief, on the ground that the state’s case was based on circumstantial evidence which was insufficient, as a matter of law, to prove his guilt beyond a reasonable doubt. We find no error in the bill, as the evidence adduced by the state was suffi-

cient to warrant the jury in finding that appellant did, by force, break and enter the building without the consent of the owners and with the intent to steal, as alleged in the indictment. See: Garcia v. State, 118 Tex. Cr.R. 70, 39 S.W.2d 47; Sikes v. State, 166 Tex.Cr.R. 257, 312 S.W.2d 524; Sewell v. State, Tex.Cr.App., 367 S.W.2d 349.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge. BELCHER, Commissioner.

text:
    Odetta Bean BOLTON, Appellant, v. The STATE of Texas, Appellee.
    No. 37096.
    Court of Criminal Appeals of Texas.
    June 27, 1964.
    Rehearing Denied Nov. 4, 1964.
    Weldon Holcomb, Pope & Heitler by John E. Heitler, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, a fine of $200.00 and 30 days in jail.

Officers Shepard and Callahan of the Texas Department of Public Safety testified that they were traveling on a public highway and first noticed the automobile driven by appellant as it approached from the opposite direction driving along the center stripe of the highway. The officers pulled to the shoulder of the road, flashed a red light, and turned to give pursuit. They observed appellant’s automobile swerve to the left side of the road twice. Both witnesses testified that appellant staggered upon getting out of her automobile, smelled of alcoholic beverages, was slurred in her speech and had glassy or bloodshot eyes, and that, based upon this, they had formed the opinion that she was intoxicated. Two full six-packs of malt liquor, a third opened six-pack containing three empty cans, and a glass, which according to the testimony of Shepard had contained a liquid that smelled like vodka, were recovered from appellant’s automobile and introduced into evidence.

We deem the evidence sufficient to sustain the conviction.

Appellant’s only contention is that reversible error was committed when the following transpired during the direct examination of Officer Shepard:

“Q. Mr. Shepard, on that date did you offer the defendant an opportunity to take a blood test?
“A. Yes, sir.
“Q. I will ask you if this is a copy of the report of the blood test?
“A. Yes, sir.
“MR. MOORE: We now offer this into evidence, Your Honor, as State’s exhibit # 2.
“MR. HOLCOMB: To which we object, Your Honor, and Counsel is well aware that it is not admissible.
“THE COURT: Objection sustained, and the Jury will not consider the offered paper for any purpose whatsoever.
“MR. HOLCOMB: We further move for a mistrial at this time, Your Honor, on the grounds of the information and request we made to the Court prior to the time the Jury was selected.
“THE COURT: Motion denied.”

Appellant relies upon Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419, where the case was reversed because the prosecutor asked if appellant had been offered a blood test, and the witness replied in the affirmative. No evidence of the results of any test was introduced. We there pointed out that the error was getting before the jury the inadmissible evidence that the appellant had refused to take a blood test.

Saunders v. State is not here controlling as the clear inference to be drawn from the testimony in the case at bar is that appellant had taken the blood test The question concerning the giving of an opportunity to take a blood test was asked, an affirmative answer was given, and then an attempt was made to introduce the results of the blood test. Appellant made a general objection to the introduction of the results of the test; his objection was sustained, and the jury was ordered not to consider the offered paper for any purpose.

We cannot agree with appellant that reversible error is reflected. The judgment is affirmed.

ON MOTION FOR REHEARING

BELCHER, Commissioner.

Appellant re-urges his contention that the question and answer about a blood test come within the holding of this court in Saunders v. State, supra.

As shown by the testimony set out in the original opinion, the question about the offer to the appellant to take a blood test was asked and affirmative answer given and there was no objection and no motion to exclude such question or answer.

Motion for mistrial was made after the report of the blood test was offered and after the court had sustained the objection and instructed the jury not to consider it. The ground for the motion for mistrial is not shown except by reference to a request made to the court prior to the selection of the jury. The request referred to is not shown in the record.

In Saunders v. State an objection was made and reserved to the question and answer. In the instant case, defendant failed to make and reserve an objection to the question and answer about the offer of a blood test.

Remaining convinced that this cause was properly disposed of on original submission, the motion for rehearing is overruled.

Opinion approved by the Court.