author: WOODLEY, Judge. MORRISON, Judge.

text:
    Henry Lee HENDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39402.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Rehearing Denied May 4, 1966.

      John J. Browne (by Court Appointment), Houston, for appellant.
    Carol S. Vance, Dist. Atty., Charles E. Bonney and Erwin G. Ernst, Asst. Dist. Attys., and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder; the punishment, 20 years.

The indictment alleged that appellant did with malice aforethought kill Henry Amey by shooting him with a gun.

Appellant pleaded not guilty and filed application for suspended sentence.

Evidence was introduced by the state to the effect that Amey died as the result of a gunshot wound of the chest. The shooting occurred in The Texas Cafe, owned by one Isaac Texas who died prior to the trial.

Police Officer Alvin B. Young testified that he heard an explosion of some kind from the direction of the cafe and some 30 seconds later Isaac Texas came out calling to him and, pointing in the direction appellant and his wife were walking, said: “That man just shot a man in my place.”

Officer Young testified that he ran immediately to appellant and grabbed him by his left hand in which he was carrying a pistol. After a brief struggle, appellant dropped the pistol that was in his hand and then another pistol which he had on his person fell to the ground.

Vickie Jackson testified as an eye witness. According to her testimony, the deceased, who was sitting at a table with his wife, got up and stood by the juke box. Appellant, who was sitting with his wife at another part of the cafe, then got up and the two men were standing facing each other and were talking. She did not hear what was said and did not know whether they were arguing or not. She heard a shot and saw that appellant had something in his hand. The deceased’s hands were to his side. When the shot was fired he crossed his arms in front of his chest — “sort of grabbed his chest” and hacked up and “fell on a lady” and when the lady got out of the way he fell to the floor. She identified appellant as the man who did the shooting and further testified that when the shot was fired his wife grabbed both his hands and backed him out the door. She saw nothing in the hands of the deceased and saw no weapon on the floor around him or on his body after he was shot.

The state introduced the testimony of Doctor Robert Bucklin who conducted the autopsy. He described the gunshot wound and testified that such a wound, which penetrated the aorta, would cause death within a short time.

The state also introduced testimony of expert witnesses who conducted tests of the clothing and the pistol and testified that the shot was fired from a distance of about 8 feet.

Appellant testified in his own behalf and offered the testimony of his wife. Her version was that appellant got up from the table and went toward the front door and the deceased came from behind him and pulled him around. While they were facing each other, about a hand length apart, and were talking “Amey advanced on Henderson (appellant) and Henderson pushed him back and when he pushed him back he advanced again and when he advanced again he came out with what appeared to be a knife and Henderson shot * * * I jumped between them and grabbed Henderson by the hand to take him outside.”

According to the testimony of this witness the deceased stood a while and walked backwards a couple of steps and then grabbed his chest. She testified that after Officer Young stopped appellant and got the guns she remembered that she had left her cigarettes and change and the truck keys on the table and went back into the cafe to get them, at which time Amey (the deceased) was alive and was sitting in a chair still holding his chest.

Appellant testified that he was employed by Uvalde Building Company in construction work. On the day of the killing he was in a cafe in the vicinity of The Texas Cafe looking for workmen to assist in pouring concrete the next day. The deceased had worked twice in this capacity and he was looking for him, but after waiting 45 minutes to an hour, he hired two other men for the job.

When he was about to leave this cafe he saw the deceased who seemed to be angry because he had gotten someone else, and he told appellant he would beat him up or whip him and a few words like that, and that he (appellant) said “let’s forget about it,” and he went home.

Some 30 minutes later appellant and his wife left home in his pickup truck and went to The Texas Cafe, taking the .25 caliber pistol and the .32 caliber pistol into the cafe with him. Appellant testified on his direct examination that he was not looking for the deceased and had no particular reason to do so; that he feared him in a sense; that he was 5 feet 9 inches tall and weighed 140 pounds whereas he estimated that the deceased was 5 feet 11 inches tall and weighed about 180 or 190 pounds.

Asked why he took the pistols from the truck into the cafe, appellant answered: “I put them in my pocket in case'of if I did see him I would have something to defend myself with in case he did mean what he had said earlier that date.”

Appellant’s version of the events surrounding the killing was that he was going outside the cafe to lock his truck and first saw the deceased when he was on his way out; that the deceased turned him around and said “ ‘What I said this evening still goes’ * * * And that’s when he went in his pocket. * * *

“Q. O.K. And describe as best you can what he did in relation to his pocket or whatever you meant by that.
“A. Oh, he just put his hand in his pocket and started moving toward me slowly, and I said why don’t you just go on and forget about it, and I took my hand and pushed him away and that’s when he kept coming toward me and that’s when I pulled the pistol from my pocket.
“Q. Why did you pull the pistol?
“A. In order to protect myself because I thought he was going to hurt me with something.
“Q. What did you think it was he might have?
“A. I thought he had a knife.
“Q. And did you think he was going to use that knife on you?
“A. Yes, I did after the way he had talked.
“Q. Did you have anything particularly against this man?
“A. No, I didn’t have anything against him.
***** *
“Q. Do you recall taking — pulling that pistol out and firing it ?
“A. I recall pulling it. The next thing I remember I heard the shot myself. I don’t remember pulling the trigger. I remember pulling the gun out but I don’t remember pulling the trigger.
“Q. Do you recall when you reached in and pulled that pistol out whether you intended to fire it?
“A. No.
“Q. No what?
“A. No, I didn’t intend to fire it. All I wanted to do was try to stop him.
“Q. All this happened in seconds, his movements and your movements there ?
“A. That’s correct.
“Q. And you honestly felt at that moment he intended to kill you or do you serious bodily injury?
“A. Yes sir.
“Q. You really believed that?
“A. Yes sir.
“Q. And whatever you did, all you intended to do was to protect yourself?
“A. Yes sir.
“Q. And you may or may have intended to fire that pistol ?
“A. That’s right.”

The court’s charge submitted murder with malice, murder without malice and aggravated assault, and submitted the defense raised by the testimony of appellant and his wife of self-defense against an attack or threatened attack creating in the mind of the person attacked a reasonable expectation of death or serious bodily injury.

The jury rejected appellant’s defense and his plea for suspension of sentence and the evidence is sufficient to sustain their verdict.

Appellant’s first claim for reversal is the failure of the court to submit in his charge the law of self-defense against an unlawful attack which did not threaten death or serious bodily injury.

Appellant cites many cases construing Art. 1224, Vernon’s Ann.P.C. which relates to the right of self-defense against a milder attack. None of the cases cited are deemed applicable under the facts. There was no testimony showing that the deceased was in the act of making an assault upon appellant when he was shot.

Appellant’s testimony was that the deceased was coming toward him and he thought that the deceased had a knife and was going to use it; that he pulled the pistol out but did not intend to fire it. All he wanted to do was try to stop him. He testified that all of this happened in seconds and he honestly believed at that moment that the deceased intended to kill him or do him serious bodily injury.

Where the evidence does not show an actual attack being made by the person killed, no necessity exists for the trial court to charge as to the right of the accused to defend against a milder attack as distinguished from a deadly attack. Booker v. State, 165 Tex.Cr.R. 44, 302 S.W.2d 431; Mays v. State, 170 Tex.Cr.R. 293, 340 S.W.2d 43.

Appellant’s next complaint is that the trial court erred in failing to charge the jury upon the law of reasonable doubt as applied to murder without malice.

Following the submission of murder with malice, the charge instructed the jury: “If you do not so believe from the evidence, or you have a reasonable doubt thereof, that the defendant is guilty of murder with malice aforethought, you will next consider whether the defendant is guilty of murder without malice.”

Following the submission of murder without malice, the jury was instructed: “If you do not so believe from the evidence, or you have a reasonable doubt thereof, you will find the defendant ‘not guilty’ and so say by your verdict.

“If, after considering the evidence, you have a reasonable doubt as to whether or not the defendant is guilty of murder with malice, or of murder without malice, but you believe beyond a reasonable doubt that the defendant is guilty of some grade of offense, you will then consider if the defendant is guilty of an aggravated assault.”

Appellant complains that the charge should have further instructed the jury as was done in Beasley v. State, 171 Tex.Cr.R. 115, 346 S.W.2d 123, 125.

Though such additional charge would have been appropriate, the charge given, viewed in the light of Art. 666 Vernon’s Ann. C.C.P. (Now Art. 36.19 C.C.P. 1965) was sufficient and the court’s failure to give the additional instruction shows no reversible error. Martinez v. State, 168 Tex.Cr.R. 18, 322 S.W.2d 635.

“Though the better practice be to apply the doctrine of reasonable doubt in each paragraph and in connection with each defensive theory, it does not follow that failure to do so constitutes reversible error.” Cain v. State, 154 Tex.Cr.R. 284, 226 S.W.2d 640, 643.

Appellant next complains of the overruling of his motion for mistrial based upon certain remarks of counsel for the state in his closing argument. Appellant’s Formal Bill of Exception No. 1 was refused by the trial judge for the reason that all of the closing argument made by counsel for the state was invited and was in reply and answer to argument made by defendant’s counsel.

Appellant excepted to the court’s refusal of said bill but filed no bystander’s bill.

Appellant’s Formal Bill of Exception No. 2 complains of the same remarks of the assistant district attorney as were complained of in Formal Bill of Exception No. 1. This bill was not approved as filed but was qualified by the trial judge.

Appellant did not accept the court’s qualifications or agree with the court’s reasons for not approving the bill as filed, as required by Art. 760d V.A.C.C.P.

Having declined to accept the court’s qualifications to his Formal Bill of Exception No. 2, and the court having refused his Bill of Exception No. 1 relating to the same matter, and no bystander’s bill having been filed, the complained of remarks and the claimed error in overruling appellant’s motion for mistrial are not before us. Art. 760d V.A.C.C.P. and cases cited under Note 3.

The remaining ground for reversal briefed by appellant’s counsel is that appellant was denied a fair and impartial trial in that the trial court permitted counsel for the state to infer that appellant’s counsel fabricated the defense.

No bill of exception raising such question appears to have been reserved.

We are directed to the following portion of the statement of fact which relates to the cross-examination of appellant’s wife, after she had testified that the deceased put his hand in his pocket and pulled out something she thought was a knife:

“Q. You haven’t been talking to the lawyers for this defendant—
MR. BROWNE: We will object to that.
THE COURT: Overruled.
MR. BROWNE: Note our exception,
“Q. (By Mr. Ernst) Did they ever tell you that if you would get up here and testify that this man put his hand in his pocket and come out with something that your husband might could beat this murder case and get off with self defense? Did they tell you that?
“A. No sir.
“Q. Did they tell you anything like that ?
“A. No.”

It was shown that the witness had made an affidavit on the night of the killing in which she said that appellant was still married “to his other wife,” and that the deceased had his hand in his pocket, but did not say that he pulled anything out of his pocket.

In the absence of a timely objection stating the reason therefor, the contention that appellant was denied a fair trial by the question of the assistant district attorney is without merit.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant argues on rehearing that our original opinion erred in refusing to pass on his Formal Bill of Exception No. 2 and in treating it as a bill refused by the trial court, appellant having failed to accept the reasons assigned by the trial judge as provided in Article 760d, Vernon’s Ann.C.C.P.

It is appellant’s position that his Formal Bill of Exception No. 2 should stand approved as submitted without qualification; he contends that the court omitted to refuse the bill and thereby approved it, notwithstanding the court’s qualification thereto.

We do not agree and hold that the qualification on its face constituted a refusal to approve appellant’s Formal Bill of Exception No. 2 and adhere to our view that the bill is not before us for review in light of the failure of the defendant to accept the trial court’s reasons for refusing to approve the bill or to file bystanders bills. Cooper v. State, Tex.Cr.App., 365 S.W.2d 793, and Alston v. State, 170 Tex.Cr.R. 17, 338 S.W.2d 723.

Appellant’s motion for rehearing is overruled.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Robert P. NEES, Appellant, v. The STATE of Texas, Appellee.
    No. 38912.
    Court of Criminal Appeals of Texas.
    March 16, 1966.
    Rehearing Denied May 18, 1966.
    M. Herbert Oldham, Phillip Bordages, Beaumont, for appellant.
    W. C. Lindsay, Dist. Atty., Jim Vollers, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the misapplication of county funds in violation of Art. 95, Vernon’s Ann.P.C.; the punishment, four years.

It is charged that the appellant on or about July 31, 1959, while deputy sheriff of Jefferson County, Texas, did fraudulently take and convert to his own use $312.35 belonging to Jefferson County which had come into his possession as such officer. The indictment was returned on November 28, 1961.

The proof shows and it is undisputed that the appellant was the duly appointed, qualified, and acting deputy sheriff of Jefferson County at the time here in question. The appellant as such officer was assigned the duties of chief clerk of the sheriff’s office. These duties were to receive and to account for all funds paid to the sheriff’s office in payment of fines, judgments, tax sales, and other matters for which funds were collected, and to issue receipts for cash, checks, and all funds, and to deposit, disburse, and make a monthly report.

J. M. Gowling, deputy district clerk, testified that he was employed as chief clerk in the sheriff’s office from 1941 to 1947, when he went to work in the auditor’s office, where he continued working until 1961 when he was employed in the office of the district clerk. The appellant began working as chief clerk in the sheriff’s office in 1947, and continued in such position until January 4, 1961. During the period from 1947 to 1961, Gowling and the appellant had discussed the duties of the chief clerk of the sheriff’s office. On January 4, 1961, Gowling went to appellant’s office and asked for a particular check stub. At this time the following occurred:

“Q At that time, what, if anything, did Mr. Nees tell you?
“A He asked me to take a walk across the street with him.
⅜ sjc ‡ :}« ⅛ ⅝
“A He said he had something he wanted to tell me.
“Q You are talking about Bob Nees, Robert P. Nees, the Defendant in this case?
“A Yes, sir.
* * * * * *
“A He said he was short in his funds. * * * * * *
“A I asked him what he meant by ‘being short’, he said, ‘I am. * * * I mean I am short in my accounts in the office.’
******
“A He said, ‘Somewhere in the neighborhood of Fifteen Thousand or more.’
“Q Now, was that fifteen thousand dollars?
“A Yes, sir.
“Q What, if anything, did you do or say then?
“A I asked him what he meant by it, he said, ‘Well, I just mean I am short in my funds.’ And I said, ‘Well, Bob, do you know what this means ?’ And he said, ‘Yes, I do.’ * * * * * *
“A He said, ‘What?’ I said, ‘We are going to have to go and talk to Charlie.’
“Q Now, when you say ‘go and talk to Charlie,’ who did you mean by Charlie, who were you referring to?
“A The Sheriff, Charlie Meyer.
******
“A I told Bob to tell Charlie what he told me.
“Q Did he tell him?
“A He did.
“Q And were you present while he talked to him?
“A Yes, sir.
“Q All right. Was that on or about the 4th of January, 1961 ?
“A Yes, sir.
“Q Now, at the time that you were talking to Mr. Nees when he first told you about this was he under arrest or charged with anything, or * * *.
“A No, sir.”

Between 4 and 5 p. m., January 4, 1961, Deputy Sheriff Moon and the appellant went to the office of Pat Hayes, an investigator for the district attorney’s office, where the appellant after having been warned by Hayes in accordance with the statute in effect in 1961, made and signed a written statement pertaining to the shortage of funds and it reads in part as follows:

“My name is R. P. Nees, I am 54 years of age and I live * * * in Beaumont, Texas. In March of 1947 I went to work for Sheriff C. H. Meyer, as a deputy sheriff in Jefferson County and have worked since that time as the office deputy.
“As the office deputy I am the only person who receives money paid into the Sheriff’s Office for fines, from people who have been fined in the courts, and fees from civil papers served. I account for the money received by the sheriff’s office and I disburse this money in the various places it goes into different offices of the county. When I am not in the office fines are paid to other people in the office, but this money is turned over to me and I am the one who disburses it.
“Sometime in 1952 or 1953 I was in a financial strain because of an illness in my family. I began taking money out of the sheriff’s office funds that were in my possession as office deputy. I continued to take money that I knew belonged to Jefferson County and to use for my own personal use and was hoping that I would be able to put it back after I sold some property that I inherited. I inherited this property three or four years after I started taking office money. After I sold the property I did put some of the money back, but not all of it. I have continued to take for my own personal use the money received by me in the Sheriff’s Office up through last month. Since I began taking money out of the office up to the present time I would estimate that I have taken between sixteen and eighteen thousand dollars.
“I have to make a monthly report to the auditor’s office and I would use the money collected during a current month to make up the shortage on the last month’s report. I did not report fees that I had collected, or show them on my reports, to build up a surplus to cover the monthly reports.
“No other person in the Sheriff’s Office, or in the county offices, is responsible in any way for this shortage. I am the only person involved and no one else knew what I was doing. I knew at the time I took this money that it was the property of Jefferson County and no one gave me permission to take or use any of the money received by me as office deputy for my own use and benefit.”

After a hearing in the absence of the jury on the issue of the voluntary nature of appellant’s written statement, the trial court held that it was voluntarily made and was not as a matter of law inadmissible. No objection was made on the ground that the statement was not voluntary. The objections to it were that he did not have an attorney with him at the time and he was not taken before a magistrate before the statement was made.

The evidence reveals that the Port Arthur Independent School District issued its check dated July 10, 1959, in the sum of $312.35, payable to the sheriff of Jefferson County for a cost bill covering several tax suits; that no receipt was issued for this check and there was no accounting for the check in any of his monthly reports of disbursements; that the school district did not receive any further bill or demands for payment of the matters covered by this check; that said check according to the deposit slips was deposited and returned to and paid by the drawee bank of the school district. The total receipts issued for the month of July, 1959, were $4,372.69, while the total deposited was $2,786.22. The total deposit in the bank for July, 1959, should haye been $4,685.04. The testimony reveals a deposit July 30, 1959, of a check in the amount of $312.35 which was not shown on the receipts. The check for $312.35 is not shown in the monthly report of July, 1959, and the audit of the records of that office until December 5, 1961, does not account for the check other than its deposit and the check stub.

Auditor Nelson of the county auditor’s office testified in part as follows:

“Q Now, in the light of what you have testified to and based upon your experience as an accountant and your familiarity with the procedures in the Sheriff’s office in accounting for these funds I will ask you what the check number 29221 in the amount of $312.35 which was deposited in the account in July of 1959 but for which no receipt was issued, what does that mean ?
“A That means that an amount of $312.35 in cash would be available to the person in charge. Simple arithmetic would show that he would not have to account for the $312.35 if he had not recorded it in his books.
“Q Mr. Nelson, as a matter of fact, does your audit show that at least the amount of $312.35 (counsel walks toward blackboard) during the month of July, 1959, was never accounted for ?
“A That is true.”

It appears from the testimony that all of the cash received in said office need not be deposited in the bank when checks are deposited for which no receipts have been issued, and then the one making the deposit would not have to account for an amount of cash equal to the checks for which no receipts were issued.

Proof was offered of several other checks received in said office for which no receipts were issued, and said checks were deposited in the bank. These checks were handled in the same or similar manner as the check for $312.35.

Testifying in his own behalf, the appellant denied being in his office on July 30, through August 3, 1959, because of certain events occurring in his family, and denied converting the $312.35 on July 31, 1959; and his absence from the office was supported by the testimony of his wife.

The appellant testified that he voluntarily made statements to Gowling, the sheriff, and Hayes of a shortage in his account in the sum of $16,000 to $18,000, that this money was converted by him to his own personal use, and that he had been anxious to clear the matter up and confess it; that the shortages were created by him taking money from the office which belonged to the county; that he took some money out of said office during the year 1959, but could not remember any specific amount on any certain date and he did not know how much. On further cross-examination the appellant was asked and answered as follows:
“Q Then you know you took some money during the year 1959?
“A I am sure I did.”

The appellant contends that he was denied due process of law because he was not warned of his right to counsel prior to his making the written statement; that he was not taken before a magistrate before he made the statement; that he was not advised of his right to remain silent prior to the making of said statement; and that the state failed to prove that the statement was voluntarily given by him.

The state’s proof shows and the appellant admitted while testifying that he voluntarily initiated and first revealed the shortage which he had wanted to clear up and confess; that he explained the shortage but was unable to be specific because he could not recall the details; that the statements to the officers were voluntarily made; that he was taken before a magistrate at the time the complaint was filed, waived an examining trial, and during this time he never requested counsel; and that in a short time an attorney appeared, made his bond, and according to the record has continued to represent him. The appellant appeared before the justice of the peace about 5:30 p. m. January 4, bond was set, and he was released on bond at 7:50 p. m. the same day. The contentions presented do not reveal error.

It is insisted that the trial court erred in admitting in evidence extraneous offenses not charged in the indictment which surprised and misled him; and again erred in charging the jury that if they found beyond a reasonable doubt that he fraudulently converted any sum of money to his own use on any date or dates between November 28, 1958, and November 27, 1961, to find him guilty; that these dates surprised and misled the appellant because they were so different from the date alleged in the indictment.

The indictment was returned on November 28, 1961, alleging that the appellant on or about the 31st day of July, 1959, converted certain county funds. A complaint had been filed against the appellant on January 4, 1961, charging him with the commission of said offense and he was discharged as deputy sheriff that day.

The method and procedure which the appellant employed to take and convert to his own use cash and checks coming into his possession as such officer was circumstantially shown. There was no direct evidence of any specific taking and conversion on any definite date. Although the appellant admitted the shortage, he stated that he was unable to specifically recall the taking of any particular sum on a certain date. To show the method, scheme and design of the ultimate conversion of county funds, the evidence of other and similar transactions were admissible. Mayse v. State, 156 Tex.Cr.R. 360, 242 S.W.2d 371.

The state is not bound by the date on or about which the offense is alleged to have been committed and a conviction may be had upon proof that the offense was committed at any time prior to the return of the indictment which is within the period of limitations. The limitation period applicable to the offense here charged is three years anterior to the presentment of the indictment. 5 Branch (2) 313, Sec. 2806; 21 Tex.Jur. (2) 674, Sec. 81; Ellis v. State, 167 Tex.Cr.R. 87, 318 S.W.2d 655.

The charge authorizing a conviction if the jury found beyond a reasonable doubt that appellant misapplied and converted to his own use all or any part of the $312.35 in money followed the provisions of Art. 95, P.C., prohibiting the unlawful conversion of any money belonging to a county. Bone v. State, Tex.Cr.App., 391 S.W.2d 415.

Appellant contends that he was denied due process of law by the charge to the jury which materially varied from the indictment alleging the fraudulent conversion of $312.35 on or about July 31, 1959, and the court’s instruction to the jury that if they found beyond a reasonable doubt that he fraudulently converted to his own use any sum of money on any date or dates between November 28, 1958, and November 27, 1961, to find him guilty.

The indictment was returned on November 28, 1961, alleging the commission of the offense on or about July 31, 1959. The application of the three year statute of limitation anterior to the return of said indictment would include November 28, 1958.

In applying the law to the facts in submitting the case to the jury, the court gave effect to the “on or about” allegation in the indictment; and in connection therewith applied the law of reasonable doubt. Further, the court charged the jury on the converse of the state’s application which was as follows:

“You are instructed that before you can convict the Defendant in this case you must find and believe from the evidence, beyond a reasonable doubt, that on or about the date alleged in the indictment the Defendant did in Jefferson County, Tex-as, fraudulently take, misapply and convert to his own use all or some part of said $312.35 in money alleged in the indictment as you are hereinabove instructed with respect to said amount and that said money so taken, misapplied and converted, if it was, belonged to Jefferson County, Texas, and had theretofore come into and was in the custody and possession of the Defendant by virtue of his office as deputy sheriff of Jefferson County, Texas, and if you have a reasonable doubt as to any of these matters you will find the Defendant not guilty.”

There was no denial of due process of law by the court’s charge as the appellant contends.

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

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Joseph JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 39085.
    Court of Criminal Appeals of Texas.
    March 30, 1966.
    Rehearing Denied May 18, 1966.

      Brantley Pringle, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Charles D. Butts, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 802c, Vernon’s Ann.P.C., for the offense of murder without malice; the punishment, two years.

The state’s testimony shows that while the deceased (a young boy), and his eleven-year-old companion, Cecil James Tuck, were riding a bicycle in the 3700 block of Burnice Street in the city of Fort Worth shortly before 6 p. m., the bicycle was struck from the rear by a Buick automobile traveling in the same direction. In the collision, both boys were thrown from the bicycle and the deceased was killed. At the time of the collision, the bicycle — equipped with a rear reflector — was being ridden on the right side of the street and the point of impact was approximately two feet from the curb.

Cecil Tuck testified that he did not see who was driving the automobile but that after the collision he saw the appellant standing on the left side of the Buick and a woman standing on the right side.

Mrs. Josephine Taylor Townsend, the mother of Cecil James Tuck, testified that when she went to the scene of the collision and while the deceased was still lying under the car, appellant said, “ ‘I’m the one that hit this child.’ ”

Louis Perkins testified that when he went to the scene shortly after the accident, the appellant was trying to release the car off the deceased with a jack handle and that when he asked the appellant who the owner and driver of the car was, appellant said that he was the owner and that “ * * * he was driving.”

Officer G. H. Evans testified that when he arrived upon the scene shortly after 6 p. m. to investigate the accident, appellant was standing on the left side of the car; that when he inquired as to who the driver of the automobile was, Mr. Perkins came forward and stated that appellant was the driver. At such time, appellant identified himself as the owner of the automobile and did not deny that he was the driver. Later, after being taken to the hospital, appellant told Officer Evans that his female companion was driving the car. The officer further testified that at such time appellant had a strong odor of alcohol on .his breath and that he staggered when he walked. The officer expressed his opinion that appellant was intoxicated at the time.

Officer R. R. Crawford, who also went to the scene and observed appellant, expressed his opinion that he was intoxicated.

It was further shown that a blood specimen taken from appellant after the accident —with his consent — upon being analyzed in the Fort Worth police department crime laboratory, was found to have an alcoholic content of .29%.

Lt. Finis L. Shiller, who made the test and analysis, testified that, based upon his knowledge, experience, and standards followed in his profession, such analysis indicated that the person from whom the blood was taken was intoxicated.

Testifying in his own behalf, appellant admitted ownership of the Buick automobile but denied that he was driving at the time of the collision. He swore that at the time of the accident his female companion, Betty Govan, was driving the automobile. In his testimony, he admitted having consumed some whisky prior to the collision but denied that he was drunk. He also denied having stated at the scene that he was the driver of the automobile and swore that he was only asked by Officer Evans if he was the owner — to which he replied that he was.

The jury by their verdict resolved the conflict in the testimony against appellant, and we find the evidence sufficient to sustain the judgment of conviction.

Appellant predicates his appeal upon three points of error.

Points one and two pertain to certain communications between the court and the jury relative to the testimony of Officer Evans and the witness Perkins which were made after the jury had retired to deliberate upon a verdict in the case.

In the first point it is insisted that in the communications the court gave additional instructions to the jury out of the presence of appellant and not in open court, in violation of Articles 676-679, Vernon’s Ann.C.C.P. White v. State, 149 Tex.Cr.App. 419, 195 S.W.2d 141, is relied upon by appellant, which case held that the provisions of these articles are mandatory and that an instruction by the court to the jury which was not given in open court in the presence of the accused constituted reversible error.

In the second point, appellant insists that the court erred in failing to have read to the jury from the court reporter’s notes that part of the witnesses’ testimony in dispute, as required by Art. 678, supra.

The record reflects that after the jury retired to deliberate upon their verdict they sent a note to the court, saying:

“ ‘The Jury wants to see the transcript of Officer Evans’ testimony.’ ”

In response, the court sent a note to the jury suggesting that if they were in disagreement as to the testimony of the witness they should indicate, and notify the court of, the particular point in dispute.

The jury then sent a communication to the court, saying:

“ ‘The question before the Jury is: “Did Officer Evans testify that the Defendant ever admitted to him that he, the Defendant, was driving the car?” * * * Some Jury Members recall that before leaving the scene, Jones did state that he was both owner and driver of the car. * * * Others do not recall this statement * *

Upon receiving this communication, a memorandum was dictated by appellant’s counsel and sent to the jury, over the judge’s signature, as follows:

“ ‘In answer to the above question, Counsel for both parties have agreed on the following answer: “Officer Evans testified that he asked the Defendant, twice, if the Defendant was the driver of the car, and Defendant replied that he, the Defendant, was the owner. Officer Evans testified that he asked who was the driver, and Louis Perkins identified the Defendant as the driver, in the presence of Defendant, and Defendant did not admit or deny such statement. Defendant told Officer Evans, on the way to the hospital, or at the hospital, that Betty Govan was the driver.”’ ”

Thereafter, while still deliberating, the jury sent the following communication to the court:

“‘8:00 p.m. * * * From the testimony of the Witness Perkins: “Did Perkins testify that the Defendant ever did identify himself to Perkins, that he, Jones, was the driver ? * * * ” ’ ”

In response, the court sent the following communication to the jury:

“ ‘The answer to your question is Yes.’ ”

While appellant was not physically present in the judge’s chambers when the court received and answered the communications from the jury, his counsel was present, and appellant was present in the courtroom. Under the record, we do not agree that the communications between the court and the jury present reversible error. Barber v. State, 158 Tex.Cr.R. 561, 258 S.W.2d 87; Lamkin v. State, 165 Tex.Cr.App. 11, 301 S.W.2d 922.

The court’s action was nothing more than furnishing the jury with certain testimony of Officer Evans and the witness Perkins and was not an additional instruction. The memoranda furnished were accurate. While the testimony was not read to the jury in open court, as provided by the statutes, there is no showing of injury to appellant as a result of such failure. In the absence of such showing, no reversible error is presented. Miller v. State, 128 Tex.Cr.R. 129, 79 S.W.2d 328.

It appears that the jury was furnished, in substance, with that portion of the witnesses’ testimony on the particular point in dispute. No request was made by appellant that additional testimony be read or furnished to the jury. Points one and two are overruled.

By point of error three, appellant complains of the court’s refusal to grant a new trial, upon the ground of newly discovered evidence.

Such contention is not presented by a formal bill of exception and is not properly before this court for review. Young v. State, 156 Tex.Cr.R. 454, 243 S.W.2d 587; Caldwell v. State, Tex.Cr.App., 364 S.W.2d 242; Longoria v. State, Tex.Cr.App., 384 S.W.2d 877.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Ex parte Mildred ROSS, Darrell Overton, and Jimmy Taylor.
    No. 39560.
    Court of Criminal Appeals of Texas.
    March 23, 1966.
    Rehearing Denied May 18, 1966.
    Brooks Holman, Austin, for appellants.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order entered after a hearing in a habeas corpus proceeding denying bail in a murder case.

The appellants are charged by indictment with the murder, with malice aforethought, of Curtis Eugene Newsom by shooting him with a gun.

It is made to appear that subsequent to the entry of the order appealed from, the question of Mildred Ross’s right to bail had become moot. Therefore, her appeal is dismissed.

The evidence is sufficient to sustain a finding that Overton shot the deceased in the leg with a pistol, and shortly thereafter, that Taylor shot the deceased in the face with a shotgun. While the deceased lay on the floor in an apartment — disabled by the shot from a .38 calibre pistol which had entered his leg from the back and shattered his knee — and after the deceased had warned his brother, on his arrival at the door, to leave or he would be killed, his (the deceased’s) head was almost blown from his body by a shot in the face with 00 buckshot from a 12-gauge shotgun. No weapon was exhibited by or seen on the deceased and none was found at the scene that belonged to him. The fingerprints of both appellants, Cherton and Taylor, were found on the shotgun stock.

After careful consideration of the evidence, it is concluded that the trial judge did not abuse his discretion in denying bail.

The judgment is affirmed.

Opinion approved by the court.


text:
    R. A. VESTAL, Appellant, v. The STATE of Texas, Appellee.
    No. 39147.
    Court of Criminal Appeals of Texas.
    April 6, 1966.
    Rehearing Denied May 18, 1966.

      Billy Hall, Littlefield, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the subsequent offense of drunken driving, a felony; the punishment, four years in the penitentiary.

The state’s evidence shews that on June 15, 1963, the appellant was stopped and arrested by city officer Wiley Hodge and deputy sheriff Augustin Sabala while driving his automobile upon a public street and highway in the city of Morton. Prior to stopping appellant, the officers observed his automobile swerving and moving “back and forth” on the highway. It was shown by the testimony of the two arresting officers that after they stopped appellant he was unsteady on his feet, his speech was slurred, and that he had the smell of liquor on his breath. Each officer expressed the opinion that at such time appellant was intoxicated. A pint whisky bottle with an inch of whisky left in it was found under the front seat of appellant’s automobile.

Certified copies of the complaint, information, and judgment in Cause No. 1184, styled The State of Texas vs. R. A. Vestal on the docket of the County Court of Cochran County, were introduced in evidence and showed that on the 26th day of March, 1957, the defendant named therein was convicted of the misdemeanor offense of driving while intoxicated. Appellant was identified as the person convicted in the cause.

The defense of insanity was interposed by appellant.

Mrs. Florence Hancock, a registered nurse who was appellant’s stepdaughter, was called as a witness to testify in his behalf. Mrs. Hancock testified that her stepfather was an alcoholic and that he started drinking in the year 1938, since which time and up until a few months before the date of trial he had consumed from one to three pints of whisky a day. She further stated that he had received treatment on four occasions in state hospitals — twice in 1960 at the Wichita Falls State Hospital and on two other occasions at the Big Spring State Hospital; that the diagnosis by the staff of doctors at the Wichita Falls State Hospital was that appellant had a passive-dependent and sociopathic personality, which was the cause of his being an alcoholic. Mrs. Hancock testified that in her opinion appellant was mentally ill; that he did not know what he was doing at times; and that, in her opinion, he did not know right from wrong on the date of the alleged offense.

Certain official court records (defendant’s exhibit #4) were introduced in evidence by appellant, which records showed that on March 10, 1964, he was found by the County Court of Cochran County to be an alcoholic and ordered committed to the Big Spring State Hospital, for treatment.

The court in his charge submitted to the jury, under appropriate instructions, the defense of insanity. The jury were further instructed as to their right to consider evidence of temporary insanity produced by the voluntary, recent use of intoxicating liquor in mitigation of the penalty, if any, to be assessed in the case.

We find no error in the court’s refusal to include within his charge an instruction on temporary insanity as a defense, as such was not raised by the evidence.

The jury by their verdict found appellant guilty of the offense charged and also that he was sane on both the date the offense was committed and the date of the trial. The evidence is sufficient to sustain the judgment of conviction.

Appellant complains that the district attorney was permitted to ask a leading question when he inquired of Officer Hodge if he observed the features of appellant’s face at the time of his arrest.

The question was not leading. Hence, no error is shown.

It is also contended that the proper predicate was not laid to show that the witnesses Hodge and Cloud were qualified to express their opinion that appellant was intoxicated.

The witnesses’ testimony shows that they observed the acts and conduct of appellant. A non-expert may express his opinion as to intoxication, based upon his observation of the accused. Mozley v. State, 163 Tex.Cr.R. 250, 290 S.W.2d 518; Ritchie v. State, 164 Tex.Cr.R. 38, 296 S.W.2d 551; Carter v. State, 172 Tex.Cr.R. 95, 353 S.W.2d 458. The contention is overruled.

The contention is further made that error was committed by the court in permitting deputy sheriff Miller and officer Sabala to relate a conversation with appellant and statements made by him while under arrest.

The record reflects that the officers were permitted to testify that they heard appellant talking at the scene of his arrest, but they did not relate any statements made by him. The witnesses merely described how appellant talked and his manner of speech. No error is shown.

Error is urged to the court’s action in admitting in evidence the complaint, information, and judgment (state’s exhibits 1, 2, and 3) in the prior alleged misdemeanor conviction, on the ground that they had not been on file in the office of the district clerk for the length of time required by law.

The matter of notice to the adverse party prior to offering an official written instrument in evidence is governed by the provisions of Sec. 3 of Art. 3731a, Vernon’s Ann. Civ.St., which reads:

“Such writing shall be admissible only if the party offering it has delivered a copy thereof, or so much of it as may relate to the controversy, to the adverse party a reasonable time before trial, unless in the opinion of the trial court the adverse party has not been unfairly surprised by the failure to deliver such copy.”

It is held in a prosecution of this nature that an accused, of necessity, is charged with notice in the indictment that a copy of the misdemeanor judgment of conviction will be offered in evidence and that he is in no position to claim surprise because a copy was not furnished to him in advance of trial. Art. 3731a, V.C.S.; Hooper v. State, 160 Tex.Cr.R. 441, 272 S.W.2d 103; Turley v. State, 168 Tex.Cr.R. 363, 327 S.W.2d 580. No error is presented.

We find no merit in appellant’s contention that the court erred in permitting the witness Miller to testify that he (appellant) was one and the same person against whom the witness filed complaint in the prior misdemeanor conviction in the County Court of Cochran County, over the objection that such fact was not alleged in the indictment. The indictment alleged that appellant had been previously convicted of the misdemeanor offense of drunken driving, and it was incumbent upon the state to prove such allegation.

The informal bill to the court’s action in sustaining the state’s objection to a certain question propounded by appellant to his witness Mrs. Hancock presents nothing for review, in the absence of a showing as to what the answer of the witness would have been. Floyd v. State, 164 Tex.Cr.R. 50, 296 S.W.2d 523.

Appellant’s remaining claim of error is the court’s refusal to permit him to introduce in evidence as his exhibits 1, 2, and 3, certain records of the Wichita Falls and Big Spring state hospitals.

The records pertained to appellant’s treatment as an alcoholic in the two state institutions and included reports and other instruments setting out information and statements attributed by social service workers and doctors to appellant’s stepdaughter, his son-in-law, and to appellant. These reports were not admissible under Art. 3737e, V.C.S., because they were not relevant. Appellant’s counsel was apparently aware of this fact when he insisted that the records of the Wichita Falls State Hospital (defendant’s exhibit #1) were admissible in evidence “for what they are worth.”

The psychiatric diagnosis of appellant’s mental condition in both hospitals was: (1) passive-dependent personality, (2) alcoholic addiction. This was not a defense to the offense of drunken driving.

The records, viewed most favorably to the appellant, showed that he had been treated in the two hospitals as an alcoholic but negatived any condition of psychosis. In refusing to admit the records in evidence, the court did not err.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the court.


author: DAVIS, Justice.

text:
    LOUISIANA & ARKANSAS RAILWAY COMPANY, Appellant, v. S. D. CARPENTER, Jr., et ux., Appellees.
    No. 7701.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 22, 1966.
    Rehearing Denied April 5, 1966.

      James N. Haltom, Wheeler, Watkins, Hubbard & Patton, Texarkana, for appellant.
    Jesse L. Nickerson, Pittsburg, for ap-pellees.
   DAVIS, Justice.

Plaintiff-appellee, S. D. Carpenter, Jr., and wife, Nancy T. Carpenter, sued defendant-appellant, Louisiana & Arkansas Railway Company, for damages for the diminution of the value of certain property they owned adjacent to the railway right of way as the result of a fire alleged to have been started by a train of the appellant. Appellee alleged that they owned a tract of land in Camp County, Texas, upon which they maintained a tree farm and a pasture of crimson clover and Bermuda grass for the production of hay. They specifically allege that the appellant had caused the fire by sparks from said train that set the grass and weeds afire on the right of way, and that the appellant negligently caused or permitted the same to escape therefrom and onto the land of the appellees causing the damages. The case was tried before a jury. Five special issues were submitted, and they were all answered in favor of the appellees. Judgment was entered in favor of $982.00. Appellant has perfected its appeal and brings forward two points of error.

By its point one, appellant says:

“The trial court erred in submitting Special Issue No. 1 to the jury, which reads as follows: ‘Do you find from a preponderance of the evidence that the Defendant, its agents, servants, and employees in the operation of its train on the date in question caused the fire to originate on the right of way at a point near and adjoining the Plaintiff’s land? Answer “yes” or “no”,’ over the Appellant’s objection that the issue was global in nature, set forth with no particularity what acts, or the failure of any acts, which the Appellant, its agents, servants or employees, did in the operation of the train to cause a fire to originate. The Appellant further excepted to said Special Issue No. 1 in the way in which it was submitted because it amounted to a comment on the evidence in that the jury would have to assume that the Court had decided as a matter of law that the Appellant, its agents, servants or employees, had done some act or failed to do some act which had caused a fire to originate.”

The point is multifarious. First, appellant says the issue is global in nature. Second, it says the special issue is a comment on the evidence. By carefully studying the appellant’s brief it can be seen that it is relying upon the point because the special issue is global in nature. It seems that the objection comes within the requirement of Rule 274, Vernon’s Ann.Tex.Rules of Civil Procedure. The objections to the special issue are sufficient to direct the attention of the trial court and sets forth the specific reasons therefor. Rule 274, V.A.T. R.C.P.; Kainer v. Walker (1964), Tex., 377 S.W.2d 613; Implement Dealers Mutual Insurance Company v. Cox (1964), Tex. Civ.App., 376 S.W.2d 384, N.W.H.; Williams v. Hemphill County (1952), Tex.Civ.App., 254 S.W.2d 839, N.W.H.; 57 T.J.2d 231, Sec. 520. The point is sustained.

We have carefully examined appellant’s point Two and find the same to be without any merit, and the same is overruled.

The judgment of the trial court is reversed and the cause is remanded.


author: BARROW, Justice. MURRAY, Chief Justice.

text:
    ALAMO AMBULANCE SERVICE, INC., Appellant, v. Philip J. MOULTON et al., Appellees.
    No. 14440.
    Court of Civil Appeals of Texas. San Antonio.
    March 9, 1966.
    Rehearing Denied April 20, 1966.

      Lang, Byrd, Cross, Ladon & Oppenheimer, Paul M. Green, San Antonio, for appellant.
    Lieck & Lieck, Jack Paul Leon, Geo. H. Goodwin, Arch B. Haston, San Antonio, for appellees.
   BARROW, Justice.

This damage suit involves a three-car in-tersectional accident with two separate collisions. Appellee Moulton brought this suit against appellant, Alamo Ambulance Service, Inc., and appellee Louie Cardenas, seeking joint and several judgment for damages resulting from personal injuries. The jury found both defendants committed acts of negligence proximately causing the injuries sustained by Moulton. The trial court granted Cardenas’ motion for judgment non obstante veredicto and entered judgment whereby Moulton recovered only against Alamo.

On this appeal, Alamo complains of the granting of Cardenas’ motion and urges that the judgment should be reformed to grant Alamo contribution under the verdict of the jury. It also urges the trial court abused its discretion in refusing Alamo leave to file a trial amendment and to give a requested instruction relative to Moul-ton’s claim for damages, and that the jury verdict on Moulton’s damages is grossly excessive. It asserts jury misconduct as well as coercion of the jury by the trial court. Cardenas does not assert any cross-assignments of error.

On September 16, 1963, at about 4:30 p. m., this accident occurred at the intersection of East Commerce and Cherry Streets in the City of San Antonio. At the time of the accident, Alamo’s station wagon, operated by its employee, Dickie Wolfe, was proceeding west on Commerce Street; Cardenas’ Buick was proceeding north on Cherry Street, and Moulton’s van was headed south on Cherry Street, but was stopped just north of the intersection. Alamo’s station wagon and Cardenas’ Buick collided near the center of the intersection. Following this collision, Cardenas’ Buick continued north for another thirty-two feet and collided with Moulton’s van.

This intersection was controlled by a traffic light and the primary controverted issue between Cardenas and Alamo was over who had the green light. The jury found that Alamo’s driver ran the red light at an unlawful and excessive rate of speed, failed to keep a proper lookout, and failed to timely apply the brakes. Each of these acts was found to be a proximate cause but not the sole cause of the collision in question. The jury further found that Cardenas accelerated his automobile immediately prior to the collision with Moulton’s van and that this act was negligence and a proximate cause of the collision in question. Cardenas failed to apply his brakes immediately prior to the collision, but this failure was found not to be negligence. Other issues inquiring of Cardenas’ conduct were answered favorably to him.

A trial court is authorized to render judgment non obstante veredicto only when there is no evidence warranting a submission of the issue to the jury. Rule 301, Texas Rules of Civil Procedure; Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950). In considering whether there was any evidence to support the jury’s answers, we must consider only that evidence and the reasonable inferences to be drawn therefrom, that are favorable to the answers of the jury. Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (1957); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955). If there is evidence of probative value that will support the findings of negligence and proximate cause against Cardenas, the trial court was in error in granting his motion and in not entering judgment jointly and severally against Cardenas and Alamo.

There is considerable evidence that Cardenas accelerated his vehicle after the initial collision with Alamo’s station wagon— Moulton heard a motor roar; Cardenas’ vehicle proceeded thirty-two feet after the first collision and knocked Moulton’s van back some fifteen feet, although he started from a stopped position; and, in fact, Cardenas drew a similar conclusion in his testimony: “I figured that when I got hit, I grabbed my wheel and my foot went down on the gas naturally, it really took off then. * * * I figure that’s just what happened, I grabbed the wheel, foot went down, lost control and hit him.”

A much closer question is raised as to whether this act was negligence under the circumstances. It has been held that where a driver has lost control of his vehicle in a collision brought about through no fault of his own, he is not responsible for a second collision caused by this lack of control. Dallas Transit Co. v. Tolbert, Tex.Civ.App., 337 S.W.2d 617, wr. ref. n. r. e.; Firestone Tire & Rubber Co. v. Rhodes, Tex.Civ.App., 256 S.W.2d 448, no wr. hist.; Renner v. National Biscuit Co., Tex.Civ.App., 173 S.W.2d 332, wr. ref. w. o. m. It is seen, however, that in each of these cases, the evidence was undisputed that the automobile was out of control from a first collision at the time of the second collision.

In Tolbert it was said: “The evidence conclusively establishes the fact that when the truck jack-knifed * * * it skidded entirely out of control * * In Rhodes the Court found: “During this brief period of time, Enis did not have an opportunity to regain control, stop his truck or change its course to avoid striking the Rhodes car.” In Renner the Court said: “It is a matter of common knowledge, too plain for dispute, that a driver knocked out of his seat, knocked loose from the steer'ing wheel and brakes, with his truck completely on the wrong side of the highway out of control, could not possibly regain effective control of the vehicle * *

The evidence here does not conclusively show that Cardenas lost control of his vehicle in the first collision. He was not knocked loose from the wheel; he was not injured or dazed by this collision. The only evidence of lack of control is his testimony that after he stepped on the gas pedal the vehicle “really took off” and that’s when he lost control. The jury could infer from the physical facts that he could have avoided striking Moulton’s car if he had exercised the care of an ordinarily prudent person. There was no submission of whether Cardenas was acting in an emergency at this time.

It is our opinion that there is evidence more than a scintilla to support the jury findings that Cardenas’ act in accelerating his vehicle after the first collision was negligence and a proximate cause of the collision with Moulton’s van. Bardwell v. Anderson, Tex.Civ.App., 325 S.W.2d 929, wr. ref. n. r. e. The trial court erred in granting the motion for judgment non ob-stante veredicto and entering a take-nothing judgment as to Cardenas

After the evidence had been closed, but before the charge of the court was filed or submitted to the jury, appellant tendered a trial amendment to the effect that Moul-ton had failed to mitigate his damages, and in fact contributed to cause an injury of greater severity by failing to exercise the care of an ordinarily prudent person in following competent medical advice in the treatment of his injuries. Appellant timely requested special issues inquiring as to whether Moulton failed to exercise such care, and if not, was this failure a proximate cause of his damages. Appellant also requested an instruction on the damage issue to the effect that Moulton could not recover for any damages which could have been so avoided. Moulton objected to the filing of this trial amendment and leave was denied. The trial court also refused to give the requested issues or instruction.

Moulton’s principal injuries in the accident were a badly bruised hand and right kneecap. The hand healed in about two weeks, however, the knee was still giving him trouble at the time of the trial in March, 1965. Dr. Berry, who was Moul-ton’s family doctor, testified that he saw Moulton for these injuries on August 17, 24 and 31, 1963. He was afraid of pre-patella bursitis because of the knee injury. He prescribed heat, rest and elevation, and by August 31, Dr. Berry said that the injury appeared about healed. Moulton was instructed by Dr. Berry to be careful with his knee. Dr. Berry saw Moulton next in February, 1964, and Moulton was still complaining of the knee. Dr. Berry diagnosed Moulton’s condition as pre-patella bursitis. This is a rather common ailment known as “housemaid’s knee” and one that Dr. Berry expected to be able to contol through heat, rest and elevation. Dr. Berry testified that proper treatment required a patient to be off his knee for a considerable period of time, in that any recurrent trauma causes swelling and irritation of the bursa lining. He testified that when he saw Moulton in January, 1965, he was still having difficulty because of repeated trauma to the knee. Dr. Berry expressed the opinion that if Moulton would take care of the knee, he would have no trouble with it.

Moulton worked for a vending machine company at the time of the accident and a necessary part of his duties required him to get down on his knees and clean under the machines. Contrary to Dr. Berry’s impression, Moulton did not lay off from work at all following the accident, but attempted to carry out his regular duties. This resulted not only in the recurrent trauma to his knee, but in unsatisfactory performance of his duties and subsequent dismissal.

It is a well-settled rule of law that one injured by the wrong of another is obliged to exercise reasonable care to minimize his damages, under pain of not being allowed to recover against the wrongdoer for elements or consequences of the injury which could have been obviated by the exercise of such care. City of Ft. Worth v. Satterwhite, Tex.Civ.App., 329 S.W.2d 899, no wr. hist.; Maywald v. Perry, 254 S.W.2d 431, wr. ref. n. r. e.; Houston, E. & W. T. R. Co. v. Jones, Tex.Civ.App., 1 S.W.2d 743, wr. ref.; 17 Tex.Jur.2d, Damages, §45; 48 A.L.R.2d 346.

A favorable judgment for plaintiff in City of Ft. Worth v. Satterwhite, supra, was reversed and the cause remanded because of the refusal of the court to submit a damage instruction substantially the same as that requested here by Alamo. It was there held that a mere recital of the elements which a jury may take into consideration in estimating damages is not sufficiently specific to amount to an instruction to the jury not to consider improper elements raised by the evidence and closely intermingled with proper elements. Where the circumstances disclosed are such as to give rise to a contention that the plaintiff ought to have prevented in whole or in part the loss or injury for which he seeks recovery, the jury should be instructed as to his duty to have prevented or diminished damages.

■ It is seen, however, that such an instruction is in the nature of an affirmative defense and it is necessary for the defendant to both plead and request such explanatory instructions in substantially correct form. See City of Ft. Worth v. Satterwhite, supra; Maywald v. Perry, supra; Houston, E. & W. T. R. Co. v. Jones, supra.

Appellant did not plead this defense in its pleadings, but sought to raise same by trial amendment tendered after the close of the evidence. This occurred after Dr. Berry’s testimony and while the charge was being prepared. Moulton objected to the filing of this trial amendment and stated that he would have to “withdraw his announcement of ready as he is totally surprised and that the allowance of such trial amendment would clearly prejudice the plaintiff and the plaintiff would have to plead to the allegations of the second trial amendment and be given time to work up his case to conform to the pleadings contained in the second trial amendment and the plaintiff’s answer to said second trial amendment, and that the plaintiff would be clearly prejudiced thereby; * *

Rule 67, T.R.C.P. provides in effect that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in pleadings and such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made by leave of the court at any time up to the submission of the case to the jury. Rule 66, T.R.C.P., provides in part that the court may allow the pleadings to be amended during the trial and shall do so freely when the presentation of the merits of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his defense upon the merits. The source of these rules is Federal Rule 15(b), 28 U.S.C. A., with minor changes.

While it is true that the application of these rules is within the sound discretion of the trial judge, nevertheless, the interpretation followed by both the Federal and Texas appellate courts is that such discretion is to be exercised liberally in favor of justice. Robbins v. Jordan, 86 U.S.App.D.C. 304, 181 F.2d 793; Kensinger v. McDavid, Tex.Civ.App., 380 S.W.2d 54, no wr. hist.; Galaviz v. Langdeau, Tex.Civ.App., 352 S.W,2d 352, no wr. hist.; City of Hous ton v. Hagman, Tex.Civ.App., 347 S.W.2d 355, wr. ref., n. r. e.; Walker v. Hubert, Tex.Civ.App., 337 S.W.2d 390, 391, no wr. hist.; Shaw v. Tyler Bank & Trust Co., Tex.Civ.App., 285 S.W.2d 782, wr. ref., n. r. e.; 2 McDonald Texas Civil Practice, § 8.07.

In Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948), the Supreme Court held that the trial court abused its discretion in refusing to permit a trial amendment pleading limitations, where the facts relative to same were already in evidence. The Court said: “The rule directs that the court shall ‘freely’ allow an amendment if to do so will subserve the ‘presentation of the merits of the action’ and the other party fails to satisfy the court that the amendment will prejudice him in maintaining his action or defense on the merits.”

Obviously, the question of whether such discretion has been abused- is one that must be determined from an examination of the transcript and statement of facts in the case and not by whether or not a plea of surprise is asserted. In McDonald, Texas Civil Practice, p. 737, the test is well stated: “The court is not required to deny the amendment, however, even though it is evident that the trial amendment would inject new issues which might surprise. Rather, the court has two options: to deny the amendment when it is obvious that the party has failed to prepare his case diligently or has delayed his amendment in an apparent effort to entrap his opponent; or to grant the amendment when tendered in good faith, allow the opponent to withdraw his announcement of ready for trial and order either a temporary delay or a continuance to permit the parties to prepare again for trial.”

Here Dr. Berry, who was Moulton’s family doctor and who was called as a witness in his behalf, was examined fully and without objection on both direct and cross-examination as to the necessity for Moulton to stay off the knee and he demonstrated the harmful effects of recurrent trauma. Following Dr. Berry’s testimony, Moulton was recalled as a witness and gave his reasons for working, and told how he tried to protect his knee at all times. Under this testimony, a fact issue was raised as to whether Moulton had acted as an ordinarily prudent person in continuing his work and not carrying out Dr. Berry’s instructions. In view of this full development of the evidence, it cannot be said that the appellant was attempting by its trial amendment to inject a new issue in the case after the evidence was closed. There is nothing in the record as to how this proposed trial amendment surprised Moulton or how long it would have delayed the trial.

A distinction must be drawn between the “implied consent” referred to in Rule 67 by the introduction of evidence without objection, which is not supported by pleadings, and the “waiver of pleadings” by failure to object as required by Rules 277 and 279, T.R.C.P., to the submission of special issues which are not supported by pleadings. Rule 67, T.R.C.P., expressly provides that written pleadings shall be necessary to the submission of issues, but authorizes the filing of a trial amendment at any time pri- or to submission of the charge where issues are tried by express or implied consent. Cases which illustrate the question of waiver of pleadings under Rules 277 and 279 are Matthews v. General Accident Fire & Life Assur. Corp., 161 Tex. 622, 343 S.W.2d 251 (Tex.1961), and Texas Employers Ins. Ass’n v. Cummings, Tex.Civ.App., 364 S.W.2d 255, wr. ref., n. r. e. The distinction is clearly pointed up in Matthews wherein it is said: “In our cause no trial amendment was proposed or filed by defendant pleading the defense which he sought to have submitted by his Requested Special Issue No. 3.”

Here the question as to the extent of damages sustained by Moulton as a proximate result of the accident was directly in issue. In developing this issue, evidence was admitted without objection and fully developed from the testimony of Moulton’s doctor and later from his own testimony, as to whether or not a substantial part of his incapacity was.the result of his failure to carry out the instructions of his doctor. There is no contention that appellant’s failure to plead this issue of mitigation prior to the beginning of the trial was caused by any lack of diligence on its part or in an attempt to entrap Moulton.

It is our opinion from an examination of this record that the trial court abused its discretion in refusing to permit the filing of this trial amendment so as to conform the pleadings to the evidence previously introduced without objection. The interests of justice required that the jury be charged as to the elements of damage to be considered by them in order to subserve the presentation of the merits of this suit.

It is further our opinion that this error ¿mounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment and requires a remand of this case. Rule 434, T.R.C.P. The damage issue was the crucial issue insofar as Moulton was concerned. Under the undisputed evidence he was stopped just outside the intersection when his van was struck. His only apparent injuries were bruises and abrasions. The jury could have believed from Dr. Berry’s testimony, that these injuries would have healed without any permanent damage after a few weeks, if Moulton had stayed off the knee. Yet, because of the recurrent trauma to this right knee, he was still complaining of same nearly twenty months after the accident. The jury verdict of $10,000 under this record fully demonstrates the harm to appellant.

The other errors asserted by appellant are not likely to occur upon a retrial of the case and therefore are not considered by us.

The judgment of the trial court is reversed and the cause remanded. The costs of this appeal are taxed one-half to the appellee Moulton and one-half to appellee Cardenas.

MURRAY, Chief Justice.

I dissent from the opinion of the majority. The majority have held that the trial court abused its discretion in sustaining ap-pellee’s objection to appellant’s proffered trial amendment presented to the court for the first time after the close of the evidence and while the charge of the court was being prepared. The effect of the trial amendment was to raise a new defense to the damages alleged by appellee. The objection made to the filing of the trial amendment by appellee was that he would have to withdraw his announcement of ready in order to have time to prepare his case against this new defense, as he was taken completely by surprise by the offering of the trial amendment. The trial court sustained this objection and refused to permit the filing of the trial amendment, reading as follows:

“I. That Plaintiff Philip J. Moulton has wholly failed to take the necessary action to mitigate his damages in this cause and has, in fact, contributed to cause an injury of greater severity to himself than that which he received in the accident in question by failing to exercise the care of an ordinary prudent person in following competent medical advice to prevent the further aggravation of, or in the alternative, the complete healing of such injury. That such failure to exercise such care as an ordinary prudent person would have exercised was a proximate cause or contributing cause of the disability, if any, plaintiff may or might have received as a result of the injury in question.
“II. In the alternative, Plaintiff Philip J. Moulton, by the exercise of ordinary care and the expenditure of a small sum of money, could have avoided or eliminated any recurrence of the condition existing in his right knee after August 31, 1963.”

The majority have held that the trial court abused its discretion in refusing leave to file this trial amendment, citing the case of Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605. I do not consider that case as being in point. There the trial was before the court without the intervention of a jury, and there was no pleading of surprise by the opposing party. We quote from the opinion:

“ * * * Here the respondents’ objections were that the petitioner had neglected for more than a year to file the amendment, that it was tendered after the evidence was closed and without previous notice, and that it was without merit or support in the evidence and would prevent equity being done. It will be observed that these objections carried neither suggestion nor hint that the respondents were in any manner surprised or unprepared to meet the issues raised by the amendment; nor did they suggest that, in this trial without a jury, the amendment would otherwise prejudice them in maintaining their action on its merits.” (Emphasis mine.)

In the case at bar Dr. Berry’s testimony was admissible under the pleadings as they were, and it could not have been excluded even if objected to, so it cannot be said that this new defense was tried by the expressed or implied consent of all parties.

In Texas Employers Ins. Ass’n v. Cummings, Tex.Civ.App., 364 S.W.2d 255, the Court said:

“We think we should add that issues are not tried by consent merely by the hearing of testimony thereon, but that submission to the jury has been held to be a part of the process, and the mere facts that testimony may have been developed on issues not necessary to be submitted to the jury under the pleading does not mean that the party has consented to the trial of such issues.”

In Matthews v. General Accident Fire & Life Assur. Corp., 161 Tex. 622, 343 S.W.2d 251, the Supreme Court, speaking through Justice Griffin, said:

“The Court of Civil Appeals held that the defense of defendant embodied in its Requested Special Issue No. 3 had been raised by the testimony of plaintiff and the doctors who testified, which testimony was admitted without any objection being raised by the plaintiff. Therefore, the Court of Civil Appeals reasoned such defense had been tried by consent of the parties, and it was error for the trial court to refuse to submit the Requested Special Issue No. 3. We hold the issue was not tried by consent of the parties, and the trial court was justified in refusing to give it because there was no pleading to support it.”

In Jenkins v. Hennigan, Tex.Civ.App., 298 S.W.2d 905, the Court said:

“The refusal to permit filing of the trial amendment presents error only in the event the court abused its discretion in this respect, and we are not prepared to say that any such abuse is shown. Appellant argues that the issues were tried by implied consent of the parties, but we cannot agree that this is so. Except for the testimony of Williams himself, there was no evidence to show the rate of speed at which he was driving at the time in question, and his testimony in this respect was elicited while he was being cross-examined by defense counsel. Plaintiffs made no objection to his testimony, it is true, but no valid objection they could have made has been suggested and none occurs to us. When defendant requested leave to file the trial amendment and that the issues under consideration be submitted to the jury, plaintiffs promptly objected, and this was the first occasion they had had to declare themselves. We find nothing in their couduct, therefore, from which to imply their consent to a trial of the issues. See Salley v. Black, Sivalls & Bryson, Tex.Civ.App., 225 S.W.2d 426; Harkey v. Texas Employers’ Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919; Cadwell v. Dabney, Tex.Civ.App., 208 S.W.2d 127. The motion shows on its face to have been filed and presented after the evidence had been finally closed, and no reason for defendant’s failure to file it earlier is disclosed by the record. Furthermore, for all that the record discloses, plaintiffs may have demonstrated to the satisfaction of the trial court that allowance of the amendment would prejudice them in maintaining their action. We are convinced, therefore, that point seven presents no error and it is overruled. See Shepard v. Outley, Tex.Civ.App., 256 S.W.2d 652; Ragsdale v. Lindsey, Tex.Civ.App., 254 S.W.2d 843, 848; Rule 66, T.R.C.P.”

The burden of proof is upon the party contending that the trial court abused its discretion in refusing leave to file a trial amendment, and especially is this true where such trial amendment is tendered for the first time after both sides have rested and the charge to the jury is being prepared.

Here the burden of proof is not upon Moulton to show that he was in fact surprised, but upon appellant to establish that Moulton was not surprised. Westinghouse Elec. Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422; Consolidated Copperstate Lines, Inc. v. Standard Asbestos Mfg. & Insulating Co., Tex.Civ.App., 378 S.W.2d 704, wr. ref. n. r. e.; Weaver v. Bogle, 325 S.W.2d 457; Davis v. National Acceptance Co., Tex.Civ.App., 233 S.W.2d 321, wr. ref. n. r. e.

I cannot agree that this record shows that the trial court abused its discretion in refusing appellant leave to file a trial amendment after the evidence was closed, at a time that surprised appellee, and would compel him to ask that he be permitted to withdraw his announcement of ready

I respectfully dissent.


author: PRESLAR, District Judge.

text:
    Bobbie Wayne RODGERS and Patsy Willingham, Appellants, v. Bernard Luke McFARLAND, Jr., and Graystone Associates, Inc., Appellees.
    No. 5736.
    Court of Civil Appeals of Texas. El Paso.
    March 23, 1966.
    Rehearing Denied April 27, 1966.

      John J. Watts, Odessa, for appellants.
    Albert P. Smith, Lubbock, Grover Stephens, El Paso, Royce A. Oxford, Del City, for appellees.
   PRESLAR, District Judge.

This is a common-law damage suit brought by Bobbie Wayne Rodgers and Patsy Willingham against Luke McFarland, Jr., the driver of the car in which they' were riding, and the lender of the car, Graystone Associates, Inc. On the basis of jury answers to special issues, a take-nothing judgment was entered from which plaintiffs appeal. We affirm.

Plaintiffs and driver McFarland were on a trip from Midland to El Paso, Texas, and were injured when the car driven by McFarland collided with another. The jury found. McFarland guilty of several acts of negligence proximately causing the collision, but it found that such acts were not done with a heedless and reckless disregard of the rights of plaintiffs within the meaning of the “guest” statute, Article 6701b. It was found that plaintiffs were guests of the driver; hence, the take-nothing judgment, because of the requirements of our guest statute which absolves a driver of liability to his guests unless his conduct amounts to a heedless and reckless disregard for the rights of his guests. Plaintiffs sought recovery against Graystone Associates, Inc. on the theory of negligent en-trustment, alleging that the driven was incompetent and had a long list of traffic violations, which incompetence and violations were known to Graystone, or in the exercise of ordinary care should have been known to it. It was alleged that the conduct of Graystone in entrusting the car amounted to both ordinary negligence and gross negligence — heedless and reckless disregard of the rights of the plaintiffs. Plaintiffs sought exemplary damages from both the driver, McFarland, and the owner, Graystone.

Before the case went to trial, Graystone filed a motion in limine to suppress evidence as to McFarland’s driving record, and in such motion Graystone stipulated and agreed that it would be liable to the same effect and extent that the verdict established the liability of McFarland; that if the verdict established liability against McFarland for damages to either of the plaintiffs, then Graystone would be jointly and severally liable to the same extent and degree, including exemplary damages.

Plaintiffs opposed the motion in limine and assign as- error the refusal of the trial court to permit the introduction into evidence of the driving record of McFarland. Under this assignment of error, plaintiffs maintain that they were deprived of a ground of recovery — the independent negligence of Graystone. They urge the proposition that such owner is not entitled to the protection of the guest statute; that having entrusted the car to an incompetent driver, it is responsible for his ordinary negligence; and they urge that their pleading of gross negligence on the part of Graystone entitled them to place in evidence the driving record of the driver on that issue, and a finding of gross negligence against the owner would satisfy the requirements of the guest statute.

We see no error in the court’s excluding the driving record. It would have been admissible on the issue of negligent entrustment, to establish the liability of the owner for the acts of the driver, but it became immaterial on that issue when the owner admitted liability. Public policy would not permit forcing the parties to try an issue where none existed. The doctrine of negligent entrustment is that the owner of a vehicle who knowingly turns it over to an incompetent driver is liable for wrong committed by such driver. It differs from master-servant or agency relationship, for it is founded in tort — the negligence of the owner in turning the incompetent loose on the public. If, in fact, the owner is negligent, his liability for the acts of the driver is established, and the degree of negligence of the owner would be of no consequence. Thus, in the case before us, the allegation of the owner’s gross negligence is no more material than the allegation of his ordinary negligence in the face of his admission of liability for the acts of the driver. In McIntire v. Sellers, 311 S.W.2d 886 (err. ref., n. r. e.), it was contended that an issue of proximate cause should have been submitted along with the issue of the owner’s negligence in entrusting, and the court said:

“We do not believe that it was necessary to submit an issue of ‘proximate cause’ insofar as concerned the owner’s negligence in entrusting the automobile to an unlicensed driver. In the Sprat-ling case the Supreme Court quoted from the Mundy case [Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587] as follows (Spratling v. Butler, 150 Tex. 369, 240 S.W.2d 1017):
“ ‘If, after the automobile is entrusted to such driver, he operates it negligently, and thereby causes damages to a third person, the causal connection is shown between the negligence of the owner in lending him the automobile and the damage to the third person.’ ”

Obviously, an owner who is negligent in entrusting his vehicle is not liable for such negligence until some wrong is committed by the one to whom it is entrusted. Even if the owner’s negligence in permitting the driving were gross, it would not be actionable if the driver was guilty of no negligence. The driver’s wrong, in the form of legal liability to the plaintiff, first must be established, then by negligent entrustment liability for such wrong is passed on to the owner. The proximate cause of the accident or occurrence is the negligence of the driver and not that of the owner. As stated in Luvual v. Henke & Pillot, Division of Kroger Co., Tex.Civ.App., 366 S.W.2d 831 (err. ref., n. r. e.):

“The only theory under which the previous acts of alleged negligence would be admissible would be to show negligence on the part of the owner of the vehicle in entrusting an incompetent driver with the vehicle, so as to make an owner liable even though the driver was not his agent or was not acting in the course or scope of employment. When agency and course and scope of employment were admitted, previous conduct became immaterial in this case. Patterson v. East Texas Motor Freight Lines, Tex.Civ.App., 349 S.W.2d 634, C.C.A., ref., n. r. e. Even if Henke & Pillot should be shown to be negligent in entrusting this truck to Whitfield, there would be no liability unless appellant showed further that Whitfield was guilty of a negligent act that was a proximate cause of the accident. There is no such finding here. Seinsheimer et al. v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Mundy et al. v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587; Spratling et al. v. Butler et al., 150 Tex. 369, 240 S.W.2d 1016.”

The wrong committed by the driver must be one for which he is liable. He is entitled to his defenses. This would include the guest statute where applicable, as here. In Farney v. Herr, 358 S.W.2d 758 (n. w. h.) it was held that the evidence did not raise the issue of gross negligence on the part of the driver, and because of the guest statute the driver was not liable for his ordinary negligence, and there would be no liability on the part of the owner as his liability was derivative of the driver’s. In the case before us the driver, McFarland, was found to be guilty of ordinary negligence, for which he was not liable because of the guest statute, and the owner having admitted liability for McFarland’s acts, we see no error in excluding the driving record when its admission would have given plaintiffs nothing more than they already had.

Appellant’s Point of Error No. Two is that the trial court erred in not granting their motion for new trial based on jury misconduct, in that the jurors discussed their own personal experiences and knowledge of the curve in question in determining that the speed of 71 miles per hour was not negligence. Rule 327, Texas Rules of Civil Procedure, governs the requirements for new trial based on jury misconduct, and under that rule the complaining party must establish: (1) that such misconduct did in fact occur; and (2) that injury probably resulted to him. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259. The first question is a fact question, as to which there is here an implied finding that such misconduct did not occur, in support of the trial court’s judgment overruling the motion for new trial. The question for this court is whether such finding amounts to an abuse of discretion. Viewing the entire record in this case, we are of the opinion that there is support in the evidence for the finding, and that such finding is not an abuse of discretion by the trial court. State of Texas v. Wair, 172 Tex. 69, 351 S.W.2d 878; Selmikeit v. El Paso City Lines, Tex.Civ.App., 365 S.W.2d 840. In the absence of misconduct, the question of probable injury does not exist. The point of error is overruled.

Appellants, by their assignment of error number Three, complain of the argument of counsel for appellees as being so prejudicial and inflammatory that no instruction of the court could have cured same. No objection was made to the particular portion of the argument here complained of, and there was no motion to instruct and no motion for mistrial. As this court said in Travelers Insurance Company v. Bohanon, Tex.Civ.App., 381 S.W.2d 929, at page 930:

“Certainly improper argument and inflammatory argument is to be deplored and should be excluded from any court of justice. In this respect it has long been the rule that if the improper argument is incurable, the injured party does not have to make objection at the time; but if it is curable, and an instruction to the jury by the court would remedy the matter, then such improper statement or argument is considered waived unless objected to at the time it was made.”

The assignment is that the argument is incurable; so we have examined its effect, rather than its having been waived, under the rule set out in Aultman v. Dallas Railway & Terminal Company, 152 Tex. 509, 260 S.W.2d 596, wherein the Supreme Court said:

“Before a judgment is reversed because of argument of counsel two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.”

Our review of the argument, in the light of the entire record, does not satisfy us that the argument was reasonably calculated to cause and probably did cause the rendition of an improper judgment. The assignment is overruled.

We have examined the remaining points of error and are of the opinion that they present no reversible error, and they are accordingly overruled and the judgment of the trial court is affirmed.