author: CALVERT, Chief Justice.

text:
    Owen M. LORD and C. H. Meyer, Petitioners, v. Harold R. CLAYTON et al., Respondents.
    No. A-8709.
    Supreme Court of Texas.
    Dec. 13, 1961.
    Rehearing Denied Jan. 24, 1962.

      Gilbert T. Adams, Beaumont, for relator.
    Will Wilson, Atty. Gen., F. J. Maloney, Jr., and N. V. Suarez, Assts. Dist. Atty., Austin, W. G. Walley, Jr., Acting Dist. Atty., Jefferson County, Beaumont, for respondent.
   CALVERT, Chief Justice.

In this direct proceeding in this Court Owen M. Lord, Judge of the Criminal District Court of Jefferson County, Texas, and C. H. Meyer, relators, seek writs of mandamus. Meyer seeks a writ directing Judge Lord to proceed to trial and hearing of his writ of habeas corpus and directing respondent, Harold R. Clayton, Judge of the District Court of the 136th Judicial District, to proceed no further with a suit to enjoin the habeas corpus hearing. Judge Lord seeks a writ directing Judge Clayton to proceed no further with the injunction suit. Other persons and public officials, unnecessary to name, are also respondents.

Normally we would not entertain mandamus proceedings to interfere with injunctive orders of a trial court. While the restraining order entered by the 136th District Court was interlocutory in nature and non-appealable, any temporary injunction entered by that court would have been reviewable by appeal. Ordinarily, the parties would have been relegated to that remedy. It appears, however, that the jurisdictional conflict between the Criminal District Court of Jefferson County and the 136th District Court, as hereafter indicated by our recitation of facts, has reached the point where the public interest and orderly administration of justice must suffer irreparably unless the conflict is relieved by this Court. Our jurisdiction to relieve it is established. Art. 1734, Vernon’s Ann. Tex.Civ.St.; Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063.

Prior to 1929 Jefferson County constituted two judicial districts, the 58th and the 60th, and the district courts of those districts had all jurisdiction, civil and criminal, conferred by the Constitution on district courts.

By Act of the 41st Leg., Reg.Session, 1929, Ch. 170, p. 374, an additional court for Jefferson County known as “Criminal District Court of Jefferson County”, was created. In the Act it was provided that the Criminal District Court should have and exercise “original and exclusive jurisdiction over all criminal cases of the grade of felony in the County of Jefferson of which district courts, under the Constitution and laws of this State, have original and exclusive jurisdiction”. Section 14 of the Act reads:

“From and after the taking effect of this Act, the District Courts of Jefferson County as now constituted, shall be, and they are hereby deprived and divested of all jurisdiction in all criminal cases, and of all jurisdiction given the Criminal District Court of Jefferson County by this Act, and all criminal cases pending in said District Courts at the time of the taking effect of this Act, and all matters pertaining to criminal cases pending therein over which the Court herein created is given jurisdiction, shall be, by the Clerk of the District Courts transferred to and entered upon the docket of said Criminal District Court, and when so entered upon the docket, the judges of said Criminal District Court shall try and dispose of same in the same manner as if such cases were originally instituted therein.”

At the Second Called Session of the 41st Legislature, c. 84, Secs. 58 and 60 of Art. 199 were amended. It was provided that Jefferson County should constitute the 58th and 60th Judicial Districts and that the district courts of those districts should “have and exercise concurrent jurisdiction coextensive within the limits of Jefferson County in all civil cases, proceedings and matters of which district courts are given jurisdiction by the Constitution and laws of this State”. It was further specifically provided: “Neither of said two district courts shall have or exercise any criminal jurisdiction in Jefferson County, such criminal jurisdiction having been by law vested exclusively in a criminal district court”.

In 1955 the Legislature created the District Court of the 136th Judicial District composed of Jefferson County. Acts 54th Leg., Ch. 216, p. 634. Sec. 2 of the Act provides : “The District Court of the 136th Judicial District shall have and exercise concurrent jurisdiction with the 58th and 60th District Courts within the limits of Jefferson County in all civil cases or proceedings and matters over which District Courts are given jurisdiction by the Constitution and laws of this State”.

Until recently the Criminal District Court of Jefferson County has exercised exclusive jurisdiction over all criminal matters in Jefferson County normally exercised by district courts. Until recently the 136th District Court has not exercised, or attempted to exercise, jurisdiction over any such matters.

On September 19, 1961, Judge Clayton appointed Grand Jury Commissioners to select a grand jury for the July term of the' 136th District Court. That duty performed, the court empanelled a grand jury on September 29, 1961. Thereafter, on November 1, the said grand jury returned a true bill of indictment against C. H. Meyer into the 136th District Court and delivered it to Judge Clayton who, in turn, delivered it to the District Clerk of Jefferson County. The Clerk entered the case on a docket sheet in the “Docket — Criminal District Court” after striking out the word “Criminal” from the heading on the docket sheet and writing “136th” in lieu thereof. A capias, issued by the Clerk and directed to any Constable of Jefferson County, commanded the arrest of Meyer and that he be brought before the 136th District Court: Meyer was arrested on November 3 and on the same day applied to Judge Lord for a writ of habeas corpus. The writ was duly issued on the 3rd directing the Constable to produce Meyer before Judge Lord in the courtroom of the Criminal District Court on November 9, then and there to show why Meyer was held in custody and restrained of his liberty. Judge Lord ordered Meyer released on bail pending the habeas corpus hearing. The record before us reflects that on November 3 the District Clerk transferred the case against Meyer to the docket of the Criminal District Court, if, indeed, it had ever been on the docket of any other court.

On November 8 the habeas corpus hearing before Judge Lord was postponed until November 17th. On November 9 the State of Texas filed a motion in the Criminal District Court seeking to have that court correct the writ of habeas corpus granted by it so as to make the same returnable to the 136th District Court. That motion was denied by Judge Lord by order entered on November 10th.

Before the habeas corpus hearing set for the 17th could be held, the State, acting by and through the acting Criminal District Attorney of Jefferson County and the Attorney General of Texas, filed suit in the 136th District Court against Judge Lord, the District Clerk, Meyer and Meyer’s counsel. A restraining order was sought and was granted by Judge Clayton restraining each of the defendants

“From proceeding with or taking any further action, orders or judgment in a certain habeas corpus proceeding on behalf of Charles H. Meyer, Sheriff of Jefferson County, Texas, presently pending before the Criminal District Court of Jefferson County numbered Cause No. 858 on the docket of said Court, except an order or judgment dismissing the Petition for habeas corpus; or an order or judgment transferring said habeas corpus proceeding to the 136th Judicial District Court; or an order making said writ of habeas corpus returnable to the 136th Judicial District Court; * * *".

Hearing on the prayer for a temporary injunction was set for November 27.

On November 22 we granted leave to file relators’ petition for writ of mandamus and stayed all proceedings in the habeas corpus hearing set for the 27th in the Criminal District Court and in the injunction suit set for the 29th in the 136th District Court.

The principal basis of relators’ claim to relief is that under the legislative acts creating the two courts only the Criminal District Court of Jefferson County has jurisdiction of the matters in controversy and that all orders made with reference thereto by the 136th District Court are absolutely void. They say this is so not only because the act creating the Criminal District Court expressly conferred on it exclusive jurisdiction over such matters but also because the act creating the 136th District Court expressly limited its jurisdiction to “civil cases or proceedings”.

Relators’ contention that the Criminal District Court of Jefferson County has exclusive jurisdiction of all criminal business in the county of which district courts would have jurisdiction under the Constitution is foreclosed against them by our decision in Reasonover v. Reasonover, 122 Tex. 512, 58 S.W.2d 817. There is no need to analyze that decision at length. It is enough to say that we held invalid a provision of an act creating a Criminal District Court which undertook to give the court jurisdiction of divorce cases to the exclusion of other constitutional district courts. We specifically held that while the Legislature could create special courts under authority of an 1891 amendment to Section 1, Article 5 of the Constitution, Vernon’s Ann.St. and could confer on such courts concurrent jurisdiction over subjects mentioned in section 8 of Article 5 of the Constitution, it could not deprive regular district courts of the jurisdiction Conferred on them by the Constitution. We adhere to that holding. See also Ex Parte Richards, 137 Tex. 520, 155 S.W.2d 597. There is nothing in Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641, contrary to our holding in Reasonover and both Harris County v. Stewart, 91 Tex. 133, 41 S.W. 650, and Cockrell v. State, 85 Tex.Cr.R. 326, 211 S.W. 939, were decided before and duly noticed in the opinion in Reasonover.

Neither do we agree that in creating the 136th District Court the Legislature created a special court, as distinguished from a regular or constitutional court, with jurisdiction limited to civil matters only. The 136th District Court is in all respects similar to the 58th and 60th District Courts. Each is a district court for a regularly created judicial district. Each is given concurrent jurisdiction in “all civil cases, proceedings and matters of which district courts are given jurisdiction by the Constitution and laws of this State”. There is nothing in the legislation affecting the existence and jurisdiction of the three courts to indicate that the Legislature intended the jurisdiction of the 136th Court to be any more limited than the jurisdiction of the 58th and ,60th Courts. We hold all three courts to be regular or constitutional district courts and that in so far as the legislative acts above referred to undertook to deprive them of their constitutional criminal jurisdiction those acts are unconstitutional and void.

Having constitutional criminal jurisdiction, it follows that the 136th District Court has jurisdiction to select and empanel a grand jury in the, manner provided by law, to receive and have felony indictments docketed in its own docket, to issue a capias for the arrest of one so indicted and have the capias returnable to the court where the case is pending, to try felony cases pending in the court, and to do and perform all other acts in connection with indictment and trial of persons charged with felonies which the Criminal District Court of Jefferson County or any other district court of general constitutional criminal jurisdiction might do. Its power and jurisdiction to select and empanel a grand jury was not nullified by the fact that the Criminal 'District Court had selected and empanelled a grand jury which was in existence and functioning at the time the 136th District Court acted. Farrar v. State, 162 Tex.Cr.Rep. 136, 277 S.W.2d 114; Hamman v. State, 166 Tex.Cr.Rep. 349, 314 S.W.2d 301. Art. 338a, Vernon’s Texas C.C.P., has no relevancy.

It does not follow from what we have said that the Criminal District Court did not have jurisdiction of the habeas corpus proceeding or that it was proper for the 136th District Court to interfere by writ •of injunction with the habeas corpus hearing.

A necessary corollary of our holding that the 136th District Court has not been ousted of its constitutional criminal .jurisdiction is a further holding that there is, and can be, no mandatory duty on the District Clerk to docket all criminal cases 'in Jefferson County of the grade of felony in the docket of the Criminal District Court, .or to transfer to the Criminal District Court •all criminal indictments returned to and docketed in the 58th, 60th or 136th District Courts. Sec. 14 of the Act creating the Criminal District Court is permissive and directory only. On the other hand, sec. 14 contains a mandate of transfer, and it has been held that a transfer made by the Clerk in obedience to the mandate, although not ordered by the court, is a valid transfer. Floyd v. State, 117 Tex.Cr.R. 384, 36 S.W.2d 739.

Articles 584 and 585, Vernon’s Ann. C.C.P., contemplate that each court of record having criminal jurisdiction will have a criminal docket to be kept by the Clerk. The record before us indicates that the 136th District Court had no criminal docket when the indictment of Meyer was received and filed. The District Clerk entered the case in the docket of the Criminal District Court. If we may assume that jurisdiction of the case was retained to the 136th District Court by the change made by the Clerk in the printed heading of the docket sheet, we must nevertheless accept the fact that, absent an order by Judge Clayton to the contrary, jurisdiction of the case was transferred from the 136th District Court to the Criminal District Court when, on November 3, the District Clerk changed the docket sheet to one for the Criminal District Court in accordance with the directory provisions of the statute.

We need not here decide whether the 136th District Court had jurisdiction of the case pending against Meyer when Judge Lord issued the writ of habeas corpus, or whether the issuance of the writ under the circumstances and considering the provisions of Art. 120, Vernon’s Ann.C.C.P., was an unwarranted interference with the jurisdiction of the 136th District Court. After the case against Meyer was transferred by the Clerk to the Criminal District Court that court then had jurisdiction of the case with jurisdiction to conduct the habeas corpus hearing.

It is the duty of Judge Lord to proceed to trial in the habeas corpus hearing. He has declined to proceed in the face of Judge Clayton’s restraining order. The restraining order issued by Judge Clayton is void in so far as it purports to restrain Judge Lord from proceeding with the habeas corpus hearing. One court has no power to enjoin official action by the judge of another court of co-ordinate power and jurisdiction. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1072; Barrier v. Lowery, 118 Tex. 227, 11 S.W.2d 298, 13 S.W.2d 688; Millikin v. Jeffrey, 117 Tex. 134, 299 S.W. 393, 395. It is also void in so far as it purports to restrain Meyer and his counsel from further prosecution of the writ of habeas corpus in the Criminal District Court of Jefferson County. To deny to Meyer the right to prosecute his writ, personally and by counsel, in a court having legal authority to conduct a hearing, is a suspension of the writ of habeas corpus m violation of Sec. 12, Art. 1 of the Constitution of Texas and of Art. 6, Vernon’s Ann. Code of Criminal Procedure, and a denial of due process. Barrier v. Lowery, 118 Tex. 227, 11 S.W.2d 298, 13 S.W.2d 688.

The restraining order entered by Judge Clayton is annulled and vacated, and Judge Owen M. Lord is directed to proceed with a hearing on the writ of habeas corpus of C. H. Meyer now pending in the Criminal District Court of Jefferson County. In the event he does not so proceed, a writ of mandamus will issue.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PECOS VALLEY SOUTHERN RAILWAY COMPANY, Petitioner v. PARKHILL PRODUCE COMPANY, Respondent.
    No. A-8616.
    Supreme Court of Texas.
    Oct. 18, 1961.
    Rehearing Denied Dec. 20, 1961.
    Kleberg, Mobley, Lockett & Weil, Corpus Christi, Russell & Tomlin, Pecos, for petitioner.
    Ward & Brown, Corpus Christi, for respondent.
   PER CURIAM.

We are in agreement with the decision of the Court of Civil Appeals in this case, 348 S.W.2d 208, upon the points wherein there is conflict with the 1897 decision of the Galveston Court of Civil Appeals in First National Bank v. East, 17 Tex.Civ.App. 176, 43 S.W. 558. See Middlebrook v. David Bradley Manufacturing Company, 86 Tex. 706, 26 S.W. 935; Warner v. Gohlman, Lester & Co., 117 Tex. 145, 298 S.W. 890; Id. Tex.Civ.App., 8 S.W.2d 1049; Stevens v. Willson, 120 Tex. 584, 39 S.W.2d 1088; Shafer v. Brashear, Tex.Civ.App., 274 S.W. 229; Mutual Federal Savings & Loan Association of El Paso v. Anderson, Tex.Civ.App., 88 S.W.2d 499; Wolcott v. Hall, Tex.Civ.App., 111 S.W.2d 1140; Dickson v. Klett, Tex.Civ.App., 211 S.W.2d 381, mand. overr., 1 McDonald, Civil Procedure, 420, § 4.38. In accordance with the provisions of Rule 483, Texas Rules of Civil Procedure, the application for writ of error is refused, no reversible error.


author: NORVELL, Justice.

text:
    M. W. LEE, Petitioner, v. STATE of Texas, Respondent.
    No. A-8484.
    Supreme Court of Texas.
    Jan. 3, 1962.
    Davis, Kee & Thomas, Angleton, for petitioner.
    Will Wilson, Atty. Gen., J. Arthur Sand-lin, Asst. Atty. Gen., Joe G. Davis, Huntsville, for respondent.
   NORVELL, Justice.

The controlling question in this case relates to the constitutionality of that portion of Senate Bill No. 317 of the Acts of the Regular Session of the 56th Legislature (Acts 1959, ch. 201, p, 472) which purports to authorize the Texas Board of Corrections to condemn certain lands in Brazoria County, Texas. The caption of the Act reads as follows:

“An Act concerning State prison lands in Brazoria County; and declaring an emergency.”

Petitioner here asserts that insofar as the power to condemn lands is concerned, this caption is patently insufficient to meet the requirements of Article 3, § 35 of the Texas Constitution, Vernon’s Ann.St. which provides that:

“No bill, (except general appropriation bills, which may embrace the vari■ous subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one ■subject, which shall be expressed in its ■title. But if any subject shall be •embraced in an act, which shall not be •expressed in the title, such act shall be void only as to so much thereof •as shall not be so expressed.”

We agree with petitioner’s contention.

The trial court held for the condemnee Xee (petitioner here) upon the ground that •certain jurisdictional requirements prescribed by Article 3264, Vernon’s Ann.Tex. 'Stats., had not been met. The Court of Civil Appeals correctly held that the trial court •erred in the particular mentioned, but in reversing the judgment of the trial court the Court of Civil Appeals overruled Lee’s contention based upon Article 3, § 35 of the ‘Constitution. See State v. Lee, 346 S.W.2d 498.

Section 1 of Senate Bill No. 317 authorizes the Texas Board of Corrections to sell •and convey certain described land in Brazoria County. Section 2 of the Act provides that the Board shall have the right to acquire the surface estate in several •described tracts by eminent domain. Nine •separate tracts are described, including two ■tracts belonging to the petitioner. These tracts lie within the limits of the Ramsey State Prison Farm. Section 3 contains the emergency clause which recites that a security hazard exists because of the presence •of privately owned tracts within the limits •of Ramsey Prison Farm.

The courts have construed Article 3, § 35 of the Constitution upon numerous occasions. As a result, there is an abundance ■of authority to sustain certain broad, general principles governing its application.

It is well established that the caption of an act should be liberally construed so •as to uphold its validity if at all possible. Gulf Insurance Co. v. James, 143 Tex. 424, 185 S.W.2d 966. It has also been said that, '“None of the provisions of a statute should be regarded as unconstitutional when they relate, directly or indirectly, to the same subject, have a mutual connection, and are not foreign to the subject expressed in the title.” Austin v. Gulf, Colorado & Santa Fe R. Co., 45 Tex. 234. So long as the caption states the main subject of an act, it will also be construed to cover any subsidiary matters if they are reasonably connected, germane, incidental, or relevant to the main subject.

However, in Consolidated Underwriters v. Kirby Lumber Co., Tex.Com.App., 267 S.W. 703, 705, holdings approved by the Supreme Court, Judge Robert W. Stayton, writing for the Commission, said:

“[I]t has been held * * * that particular provisions are not within a given title where no subject at all is expressed in the title; where the ultimate subj ect expressed and that provided for are plainly different; where the provisions are palpably ulterior or foreign to the title; where they are separate, distinct from, and not germane to the subject expressed; where by no intendment they possess a necessary or proper connection with it; where they are disconnected from it and inappropriate to it; or where the provisions come clearly within the evil to be suppressed.”

There is no substantial difference between petitioner and respondent as to these basic principles but rather a divergence between them as to their application to the factual situation of this particular case.

Our agreement with petitioner is predicated upon the fact that Section 2 of the Act, authorizing the State to condemn the lands of private citizens, does not “concern” prison lands in any way. It is undoubtedly true that had the State successfully condemned these lands, they would have become prison lands. But the caption of the Act does not state that it concerns the acquisition of prison lands, or lands which are about to be prison lands. We do not believe that the caption would reasonably give fair notice to a legislator or any other person interested in the subject matter of the bill that the proposed act would provide for the condemnation of private lands. A most liberal interpretation would not allow us to say that a statutory provision which concerns the condemning and acquisition of private lands is reasonably related to the subject of the caption, which uses the words “concerning prison lands”, that is, lands owned for prison purposes. We must hold that Section 2 of the Act is unconstitutional and void.

The judgment of the Court of Civil Appeals is reversed, and the trial court’s judgment of dismissal is affirmed.


author: BELCHER, Commissioner.

text:
    Isaac SCOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 33777.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    See also 339 S W2d 207.
    Florence, Garrison & Holt, by F. L„ Garrison, Gilmer, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, five years.

The disposition hereof makes a summary of the facts unnecessary.

In its brief, the state does not seek am affirmance of this case because the jury,, after retiring to deliberate, received new testimony which was prejudicial to the appellant.

Appellant’s amended motion for a new trial was sworn to by him and supported, by the affidavits of Jurors Tucker, Chase,, and Wisenhunt. The motion recites that, from the beginning of their deliberations,, which continued several hours, until shortly before they returned their verdict of guilty, 9 jurors were for a conviction and Jurors. Tucker, Chase and Wisenhunt were for acquittal. It further alleged that shortly before they unanimously voted guilty,. Juror Tucker called Juror Chase to one-side and told her that he had heard through people for whom the appellant had worked that he was a pretty tough person among the Negroes.

At the hearing of the motion, Juror Tucker testified that after they had been-deadlocked for some time, he called Juror Chase aside and told her, but not the-•others, that he had heard some of the boys the appellant worked for at the store say that appellant was pretty tough among the other Negroes; and that they could be wrong in voting for an acquittal, but if she wanted to they would continue to vote for an acquittal.

Mrs. Chase testified that after the jury had been deliberating for a long time Juror Tucker called her aside and said:

“Well, I’m with you as long as you want to go along with it, but I want to call your attention to the fact that you might not know” said, "This is a bad Negro and he has a bad reputation and it is something you might take into consideration, * * *." She further stated:
“But when Mr. Tucker said that he was a mean Negro, that he had a bad reputation, perhaps we could be wrong, I agreed perhaps we might be wrong, we could be wrong.”

While testifying, Mrs. Wisenhunt, one of the three jurors for acquittal, stated that when it appeared that they could not agree, she said that although she believed he acted in self-defense she would vote for five years if Jurors Tucker and Chase would. Then Tucker moved and sat beside Juror Chase and she heard Tucker give Mrs. Chase the above-mentioned information and told her that he would go along with the jury for five years if she would.

The other nine jurors were called by the state. They each testified that they did not hear or recall the remarks or statements complained of as shown above, but none of the nine denied that they were made.

An examination of the record shows that there was no testimony introduced during the trial that the appellant was a bad, mean Negro, or that he was pretty tough among the Negroes and had a bad reputation.

Art. 753, Sec. 7, Vernon’s Ann.C.C.P., provides that a new trial shall be granted in felony cases where the jury, after having retired to deliberate, receives other testimony.

It has been the consistent holding of this Court that when the jury receives other material and prejudicial testimony such as that presented here, unless an issue is raised which may be resolved by the trial judge, then it becomes the duty of the trial judge to grant the motion for new trial. The evidence here fails to raise such issue. Jones v. State, 122 Tex.Cr.R. 146, 54 S.W.2d 145; Flowers v. State, 157 Tex.Cr.R. 635, 252 S.W.2d 191; Citizen v. State, 159 Tex.Cr.R. 519, 265 S.W.2d 109; Gibbs v. State, 163 Tex.Cr.R. 370, 291 S.W.2d 320; Templin v. State, 166 Tex.Cr.R. 583, 316 S.W.2d 746.

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

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Linda BLAYLOCK, Appellant, v. STATE of Texas, Appellee.
    No. 33793.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.

      W. E. Martin (On Appeal Only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., J. R. Musslewhite, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is unlawful possession of morphine, a narcotic drug; the punishment, 5 years.

The evidence shows: Police officers went to the premises described in a search warrant, arriving about 7:30 P.M. William Seelies was seated on one bed and Frederick Engel on another. Engel had a needle attached to an eye dropper and bulb inserted into his arm, giving himself an injection of some sort of fluid. Appellant was standing beside Engel.

The officers observed this through a window and made a forced entry as appellant started toward the kitchen. All three ran for the rear of the house when they saw the officers.

Appellant followed Engel into the bathroom and closed the door. The officers forced entry through said door and saw Engel flushing the commode in which there remained a piece of bloody rag.

Underneath some female clothing in a suit case the officers found an eye dropper and bulb with a needle attached thereto, which were introduced in evidence and identified as being adaptable for use of subcutaneous injection of narcotic drugs in a human being.

A clear bottle containing a brownish liquid, found in a cabinet in the kitchen, was also introduced.

A chemical analysis of a liquid in the syringe bulb offered in evidence, and the brownish liquid found in the kitchen, revealed that such liquids were solutions of morphine, a narcotic drug.

There was testimony that the appellant had on several occasions been seen entering and leaving the apartment, sometimes spending the night.

She testified that the overnight bag belonged to her, but denied that the eye dropper, syringe bulb and needle found in it were hers, and denied that she lived in the apartment.

Appellant questions the sufficiency of the evidence, contending that there was no proof that the liquid in the eye dropper and bulb was anything other than paregoric, and that the quantity of morphine was insufficient to show a violation of the law penalizing possession of narcotics.

The contention that the morphine was or could have been evaporated or boiled down paregoric, which could be lawfully purchased in small quantities without a prescription and for that reason its possession was lawful, was overruled in Platt v. State, Tex.Cr.App., 341 S.W.2d 930.

In view of the circumstances under which the morphine was found, the quantity is not deemed relevant on the question of its possession being unlawful.

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

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Jonathan FIELDS, Appellant, v. The STATE of Texas, Appellee.
    No. 33979.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.
    Richard D. Bird, Childress, for appellant.
    John T. Forbis, Dist. Atty., Childress, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is assault with intent to murder; the punishment, 2 years.

Jimmy Ann Davis testified that she was at appellant’s cafe on the night in question and that an argument erupted between appellant and one Oscar Davis, who was with her; that she sought to placate the men but that, in spite of her efforts, appellant cursed her, pulled out a pistol and shot at her twice, one bullet penetrating her stomach. She testified that she made no overt gesture toward appellant and that she was not armed. She testified further that after the shooting everyone fled the cafe and left her lying on the floor until the deputy sheriff arrived some thirty minutes later.

Oscar Davis testified that appellant accused him of breaking one of the windows in the cafe, that he denied his guilt, that Jimmy Ann offered to pay for the window, and appellant reached in his pocket, pulled out a pistol and shot the injured party. He testified that he was not armed and made no effort to injure appellant.

Dr. Goodall testified that Jimmy Ann was brought to his hospital on the night in question suffering from gunshot wounds, that he operated on her for three hours, and that she was in a critical condition.

Appellant, testifying in his own behalf, admitted the argument with Oscar about the broken window, stated that he asked Oscar and Jimmy Ann to leave, but that Jimmy Ann knocked over his soda water cases and began to shove his candy case when he shot her. He stated, “I was intending to try to stop her from tearing up the place. * * * That is all I was trying to do. * * * When she shoved the case, I grabbed the case and grabbed the gun and shot.” When asked if he was shooting at Jimmy Ann Davis, appellant replied, “Yes sir. I guess I was.”

We find the evidence sufficient to support the conviction and shall discuss the one contention brought forward on appeal. The careful trial court charged the jury on the issue of self-defense against an attack upon appellant’s person or upon his property. It is appellant’s contention that he should have further submitted the defensive issue that the appellant “merely fired his gun to cause the injured party to stop.”

Reliance is had upon Minor v. State, 108 Tex.Cr.R. 413, 1 S.W.2d 315. Minor testified that he shot over the head of the injured party, who he was seeking to arrest, not intending to hit him hut for the purpose of scaring him into submission. Such, as we view them, are not the facts before us here. The sole defense raised by appellant’s testimony was that he shot the injured person in the protection of his property, which was adequately and correctly submitted in the court’s charge.

Finding no reversible error, the judgment of the trial court is affirmed.


text:
    Roy MONTGOMERY, Appellant, v. The STATE of Texas, Appellee.
    No. 34045.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Frank Puckett, Jr:, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s-Atty., Austin, for the State.
   MORRISON, Judge.

The offense is unlawfully carrying a pistol; the punishment, one month in jail.

Officer Sowell testified that he received certain information on the day in question and went to a cafe located at 1708 Robin Street, that he entered, spoke to the woman in charge, and then escorted appellant outside, searched his person and found a pistol containing five rounds of ammunition in his pants’ pockets. He stated that at that time appellant said he was carrying the pistol to a gun shop on Travis Street to be repaired but that it appeared to him to be in working order and he knew of no gun shop located on Travis Street. Lillian Fielder, the person in charge of the cafe in question, testified that she had seen appellant with the pistol in his hand talking to another man prior to the arrival of the officers.

Appellant testified that he was at the time of his arrest carrying the pistol, as an accommodation to Hazel Montgomery, to the gun shop for repairs. Hazel corroborated his testimony, but admitted that appellant had not unloaded the pistol before starting on his journey.

The court instructed the jury that it was not unlawful to carry a pistol from home to a place where it might be repaired.

The jury found against appellant’s defensive theory, and we find the evidence sufficient to support the conviction.

We are not impressed with appellant’s objections to the charge. No formal bills of exception appear in the record, and no brief has been filed in appellant’s behalf.

Finding no reversible error, the judgment is affirmed.


author: McDonald, judge.

text:
    Alfred Ray NOLLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 33936.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    F. T. Gauen, Jr., Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is cattle theft; the punishment, ten years.

The State’s testimony reflects that sixteen head of cattle were missing from the place of Horace Morgan near Naples; that a chain on the gate had been broken; that a truck with dual wheels had backed up to his loading chute; that Morgan later saw the cattle on the J. T. Humphries place in Van Zandt County; that new brands were peeling off of the cattle; that appellant had leased a place near the Sabine River that adjoined Humphries’; that appellant hauled some cattle there in a pickup truck; that rains caused the fences to wash out along the river; and that it was not unusual for cattle to get out. It was further shown that some of the stolen cattle were found on, and driven from, the nearby McCain place to Humphries’ by J. B. Rab.e, who thought that they belonged to Humphries, and that the cattle stayed there some three weeks ffntil they were taken back to the owner. Appellant purchased a dual wheel truck some time before the cattle were stolen, and a dual wheel truck had been seen on his place. After the cattle were returned, appellant asked Humphries if he had seen stray cattle; and, after being informed that the cattle had been returned, he told Humphries to forget about it, because he had been in trouble about some cattle that had been stolen. Appellant left town, and sometime later he was seen in jail in Tulsa, Oklahoma.

Appellant did not testify.

Appellant contends that the trial court erred, in overruling his motion to quash the indictment, because it did not allege that the offense occurred in Cass County. The allegation was: “ * * * that anterior to the presentment of this indictment, in the County of Cass and State of Texas, Alfred Ray Nolley * * * did then and there unlawfully and fraudulently take one head of cattle * * This allegation was held sufficient in Heath v. State, 156 Tex.Cr.R. 563, 244 S.W.2d 815.

The evidence is insufficient to support the conviction; there is no proof that appellant took the cattle in question, had them on his place, in his possession, or asserted that he owned them.

“To sustain a conviction it should not only appear that an offense as charged has been committed, but there should also he proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person who committed it or was a participant in its commission. There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him.” 4 Branch’s Ann.P.C.2d, p. 363, sec. 2053. See cases there cited.

The judgment is reversed and the cause is remanded.


author: DICE, Commissioner.

text:
    Isias Valdez GAMEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 33768.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.

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

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $350.

Officer W. E. Briles testified that on the night in question, while on patrol duty in the City of Hereford, he heard a noise which sounded like wood “pulling away” from a building; that he then observed a pickup truck backing up and driving away from a cafe building which he pursued across Highway 385 and on Higgins Street for approximately one-half mile, during which time it was being operated “all over the road” with no lights; that when he brought the pickup to a halt he ascertained that appellant was the operator of the vehicle. Officer Briles, in describing appellant’s actions and appearance after being stopped, testified that he could smell beer on his breath; that he talked with a “thick tongue”; that he “staggered” and expressed his opinion that appellant was intoxicated. He further testified that he found some beer in the pickup appellant was driving. Officer Donald R. Metcalf, who was called to the scene, corroborated Officer Briles in his description of appellant’s actions and appearance and expressed his opinion that appellant was intoxicated.

It was shown that following his arrest, appellant was' taken to a hospital where, with his written consent and in the presence of Officer Briles, a blood specimen was taken from him by a nurse, put in a test tube and after being sealed, placed in a container and mailed to the laboratory of the State Department of Public Safety at Lubbock. Officer Briles identified State’s Exhibit No-. 2 as .the test tube which he mailed.

Chemist and Toxocologist H. Wayne Anderson, of the Department of Public Safety, identified State’s Exhibit No. 2 as a test tube which he received in the U. S. mail at the laboratory in Lubbock. He stated-that after breaking the seal on the tube he performed a> test on the blood specimen therein which showed that the blood contained .15%’ alcohol by weight. Chemist Anderson, after reviewing the recognized levels -of alcohol concentration in a person’s blood which the National Safety" Council and American Medical Association deem a person intoxicated, expressed his opinion that the person' from whom the blood specimen was taken was intoxicated.

Testifying as a witness in his own behalf," appellant admitted driving the pickup truck on 'the night in question and having consumed two beers, but denied that he was under the influence of intoxicating liquor.

Appellant also called character witnesses who testified that his general reputation for being a -peaceable and law abiding citizen and for truth and veracity was good.

By bill of’exception No. 1 appellant complains of the court’s action in overruling his motion to quash the complaint and information on the ground that it was not alleged that he drove the motor vehicle upon a public highway. In charging the offense, the complaint and information alleged that appellant operated the motor vehicle upon a public road. Art. 802, Vernon’s Ann.P.C., in defining the offense of driving while intoxicated, makes it unlawful to' drive or operate a motor vehicle upon a public road or highway. A “public- road” has been held to be a “public highway” within' the meaning of the statute. Anderson v. State, 149 Tex.Cr.R. 423, 195 S.W.2d 368. We find no error in the bill.

Bill of Exception No. 2 presents appellant’s objections to the court’s charge. Appellant objected to the charge as a whole on the ground that the charge as drawn, “shifts the burden of proof and requires the defendant to prove his innocence.” While appellant’s objection was too general to specifically point out where the charge was erroneous, we observe that the charge as submitted to the jury properly placed the burden of proof upon the State. Appellant further objected to the charge on the ground that in submitting forms of verdict to the jury the court did not submit all of the forms of verdict which could be reached by the jury in the cause. The court submitted two forms of- a verdict in the charge, one for a verdict of guilty and the other for a verdict of not guilty. No other form was requested by appellant. The forms of verdict submitted were sufficient. -

Bill of Exception No. ,4 presents appellant’s contention that the trial court committed reversible error when during the voir dire examination'of the’jury panel he made the- following statement :

“THE COURT: I don’t know, it seems to me that the charge from the court — I believe if — Mr. Hall has made it pretty plain to the jurors that they consider only the evidence from the stand and base that on the charge of the court. I don’t know whether we ought to place — if we hold a vote here, everyone might be a little prejudiced one way or the other. If we put it on this basis, we might .not have enough jurors to conduct this trial.”

The bill certifies that appellant’s objection to the statement was overruled and his request for a mistrial was refused.'

We are unable to -agree with appellant that the court’s comment was such as to convey to the jury his opinion in the case, in violation of Art. 707, Vernon’s Ann. C.C.P. There is nothing in the court’s statement which would be of benefit to the State or injurious to appellant, in the absence of which, no reversible error is shown. Huckert v. State, 159 Tex.Cr.R. 368, 264 S.W.2d 121.

Appellant complains of certain rulings by the court during the selection of the jury in the case.

Complaint is made to the court’s action in overruling appellant’s challenge for cause to one of the prospective jurors. The record does not show that appellant exhausted all of his preemptory challenges. Nor is it shown that the juror challenged or one who was objectionable to appellant served on the jury. In the absence of such a showing, appellant cannot predicate a reversal upon the ground that his challenge, for cause was erroneously overruled. 1 Branch’s Ann.P.C.Supp.2d Ed., Sec. 563, p. 114. Complaint is made to a certain statement made by the prospective juror Kerchan when on his voir dire examination, he stated, “maybe I don’t exactly understand, under the law are you allowed to drive if you have one drink or a dozen?” We find nothing in the statement or inquiry by the juror which is injurious to appellant and calls for a reversal of the conviction. In his brief appellant complains of a statement made by the prosecuting attorney during his examination of the jury panel. The record does not reflect that appellant made any objection to counsel’s statement; hence, no error is shown.

We have considered appellant’s remaining bill of exceptions and find no reversible error therein.

The court did not err in permitting Officer Briles to testify that as the result of the search he found some beer in the pickup appellant was driving. The testimony of Officer Briles as to the manner in which appellant was driving the pickup, upon a public street, was sufficient to authorize his arrest without a warrant under the provisions of Art. 803, V.A.P.C. Granado v. State, 161 Tex.Cr.R. 128, 275 S.W.2d 680, and Mayo v. State, Tex.Cr.App., 344 S.W.2d 685. The arrest of appellant being lawful, the incident search of the pickup truck was lawful. Mayo v. State, supra.

Nor did the court err in permitting Chemist Anderson to testify as to the results of the blood test over appellant’s objection that it had not been shown that the blood specimen was properly taken from him and that the blood specimen had not been properly traced. The evidence was undisputed that the blood specimen was taken from appellant by a nurse at the hospital. It was further shown that the specimen was placed in a tube, sealed and mailed to the laboratory of the Department of Public Safety at Lubbock. Officer Briles identified State’s Exhibit No. 2 as the blood specimen which was taken from the appellant in his presence and which he placed in the U. S. mail addressed to the laboratory at Lubbock. Chemist Anderson identified the same as the sample he received through the mail and after breaking the seal testing the same. Under such evidence that blood sample was shown to have been properly taken from appellant and was sufficiently traced. Mora v. State, 159 Tex.Cr.R. 321, 263 S.W.2d 787; Gilderbloom v. State, 160 Tex.Cr.R. 471, 272 S.W.2d 106.

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

Opinion approved by the Court.


text:
    Luciano CEDILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 34051.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    Luciano Cedillo, pro se.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Edward N. Shaw, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is robbery; the punishment, enhanced by two previous convictions for a felony less than capital, life.

Appellant was identified by Ben F. Adkins as the man who came to the package store where he was employed, produced a pistol and pointing it at him said “Get down. Lay down. This is a hold-up”; took his purse out of his hip pocket and extracted some $53.00 from it. He then heard the man going through the cash register.

A check made after appellant left disclosed that some $307.00, in addition to the $53.00 taken from his purse, and two bottles of whisky were missing.

Juan Tudon testified that he went to the liquor store to get some change and when he arrived Adkins was lying on the floor and a man he identified as the appellant was on top of him searching his pockets. He testified that he went next door and asked a lady to call the police, and when appellant came out of the liquor store he got in a taxi and followed appellant to where he got in an automobile with a man and two ladies, and got the license number and gave it to the police.

Fernando G. Mendosa testified that he took appellant to the vicinity where the liquor store was located and, after letting him out, went to a telephone, leaving two girls in the car; that when he returned appellant was in the car and had two bottles of whisky.

Appellant points to the discrepancy between the testimony of Tudon that a man and two ladies were in the car which appellant got in, and Mendosa’s testimony that appellant was in the car when he returned to it. We do not regard the discrepancy as serious, in view of the other evidence in the case.

Appellant’s statement made to Detective J. A. Hodges was introduced without objection, in which he confessed that he went to the liquor store with a pistol and told the old man that was running the place that he wanted his money, and then he went behind the counter and took the money and two bottles of Seagrams VO Whisky from the store.

The prior convictions alleged in the indictment were proved by the records of the court and the penitentiary, including copies of the judgments and sentences. Appellant was identified as the defendant in said causes by comparison of the fingerprints forming a part of the penitentiary records and the testimony of an expert witness who took appellant’s prints and compared them and found them to be fingerprints of the same person.

Appellant has filed a brief prepared without assistance of counsel. We have examined his contentions and the record herein, and have found no error which would call for reversal of his conviction.

He complains that a pistol, two bottles of whisky and some money found in the apartment where he was arrested were improperly admitted in evidence.

The pistol and money, and the evidence relating to the finding thereof, were admitted in evidence without objection other than that the pistol recovered in the hallway “is not connected up.”

Officer Thomason testified before any objection was made that Officer Hodges removed the bottles of whisky from a cabinet in the kitchen of the apartment where he found appellant and two girls.

The jury was retired when the bottles were offered as exhibits, and it being shown that the officers had no search warrant “to search that cabinet”, the following occurred.

“MR. MAGEE: I obj ect to it at this time.
“THE COURT: Did he say it was the defendant’s place or not?
“MR. MAGEE: He said the defendant was there. If it was not the defendant’s place; he was just there, I have no objection, but he is trying to show to the jury it was the defendant’s place, and he found it.”

Appellant reserved exception “to his testimony about those bottles. There was no search warrant used to obtain them.”

On cross-examination Officer Thomason was asked and answered:

“Q. You say you found those bottles in the apartment house there? A. Yes, sir.
“Q. You don’t know whether that was this man’s apartment or not, do you? A. No, sir.”

In the absence of a proper and timely objection based upon the claim at least that the whisky was found in a search without warrant of appellant’s home, reversible error is not shown.

The judgment is affirmed.


text:
    Domingo PALOMO, Appellant, v. The STATE of Texas, Appellee.
    No. 33845.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.

      L. Aron Pena, Edinburg, for appellant.
    R. L. Lattimore, Criminal Dist. Atty., by Oscar B. Mclnnis, First Asst., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The conviction is for the felony offense defined by Art. 602-A Vernon’s Ann.P.C., which provides in part that any parent who has been convicted of the misdemeanor offense of deserting, neglecting or refusing to provide for the support and maintenance of his child or children under 18 years of age, and who shall thereafter wilfully desert, neglect or refuse to provide for the support and maintenance of his child or children under 18 years of age, shall for each and every subsequent such violation be guilty of a felony and, upon conviction, shall be punished by confinement in the County Jail not less than 10 days nor more than 2 years, or by confinement in the State Penitentiary for not more than 5 years.

The indictment properly alleged such of-fence and the jury found appellant guilty and assessed his punishment at 2 years in the County Jail.

Evidence was introduced showing that appellant was the father of five children under 18 years of age; that on February 9, 1960 appellant was tried upon complaint and information filed September 15, 1959 alleging that he did wilfully desert, neglect and refuse to provide for the support of his children under 18 years of age and upon his plea of guilty, was assessed a 60 day jail term.

On January 8, 1960, and while the aforesaid cause was pending, appellant’s wife was granted a divorce and given custody of the children, and appellant was ordered to contribute $15.00 per week for their support.

The indictment herein alleged that the felony offense was committed on or about November 9, 1960.

Appellant made several $15.00 contributions during April, May and June 1960, but contributed nothing in July, August or September 1960.

In October 1960 he contributed $32.00; in November $35.00 and in December $15.00. In January 1961 he contributed nothing. The indictment was returned February 21, 1961.

The foregoing are all of the contributions made by appellant for the support of his children from the time of his conviction of the misdemeanor offense to the return of the indictment, except for $20.00 he gave one of the children.

Beginning in June or July 1960, appellant worked for Raffic Sarraf for 8 or 10 weeks, his pay being $60.00 a week. He then started driving a truck for Mr. Sarraf, making two or three trips to California for which he was paid $165.00 to $175.00 per trip.

We find the evidence sufficient to sustain the jury’s finding that appellant wilfully neglected and refused to provide for the support of his children under 18 years of age.

We overrule the contention that the state failed to prove that appellant had the ability to support or could have contributed more than he did to the support of his children.

In this connection, attention is directed to Art. 605 Vernon’s Ann.P.C. which reads in part:

“ * * * Proof of the desertion of such wife, child or children in destitute or necessitous circumstances or of neglect or refusal to provide for the support and maintenance of such wife, child or children shall be prima facie •evidence that such desertion, neglect, or refusal is wilful.”

The judgment is affirmed.


author: McDonald, judge. WOODLEY, Presiding Judge

text:
    Beneditos T. DURAN, Appellant, v. The STATE of Texas, Appellee.
    No. 33878.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    Joseph J. Rey, El Paso, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is driving a motor vehicle on a public highway while intoxicated; the punishment, a fine of $50.00 and 3 days’ confinement in the county jail.

Appellant’s sole contention is that the evidence is insufficient to support the judgment.

The State’s evidence reflects that two cars were parked along the curb of a street in El- Paso. The cars had their bumpers hung together, one car having bumped into the one in front of it, pushing it into the one in front of it. As reflected by the statement of facts and counsel’s briefs, there is no question as to the intoxication of the appellant, as later pointed out by us, the sole question being the sufficiency of the evidence to connect the appellant as being the driver of the vehicle at the time of the accident. We shall quote from the testimony of the various witnesses.

The witness Galvan was asked:

“Q. You did not see him driving the car? A. No.
“Q. Was the defendant behind the steering wheel when you first saw him ? A. No.”

The witness Jose B. Drusina related that he turned to see a car without the driver moving faster than you would say a car could roll from an incline and hit his car in the rear bumper; that he walked up to the car and saw a man in a white shirt behind the wheel, not driving it but behind the wheel, the car was parked completely and the motor off, and another man that seemed to be a little lower in stature was sitting beside him; that Officer Rodriguez asked him to identify the man, and he stated that he couldn’t, other than a white shirt and the approximate stature that he was. This witness was then asked:

“Q. Let me indicate to you the defendant Mr. Duran — could you say that he was the driver of the car ? A. Not positively.
* * * * * *
‘‘Q. Then at that time you were able to recognize him, is that it? A. No, sir. I kept on saying it was a man with a white shirt, about 5' 6", 5' 8".
* * * * * *
“Q. As far as you know this is not the man that was behind the wheel? A. I would rather say that I don’t know, because if I could not identify him positively I would be harming the man.
“Q. All right, and at no time did you see the car being driven or the motor running, did you, at any time ? A. At no time.”.

State’s witness, Patrolman Cortez Martin, related that when he arrived at the scene he found nobody in vehicle No. 3 (the appellant’s vehicle as designated) ; that two witnesses told him what happened, and as he was taking measurements and investigating the accident the appellant “came back to his car with his wife and the witnesses stated that he was the driver and he also stated that he had been driving the car, too.”

“The Court: What did he say ? Witness : He had stated that he had been driving the car.
******
“Q. All right, at the scene at that time did you have occasion to question the Defendant as to whether he was the driver of the car at the time it ran into the No. 2 vehicle? A. That happened when we were taking him into the police car, sir.
“Q. All right, well, what did he say? A. He stated that it was his car and that he had been the driver.
“Q. Did he indicate that he had been in the — anything about the accident, why it had happened or what his reasoning was ? A. I don’t remember that there, sir, he — I was getting the measurements — at that particular time we escorted him over to the car and the reason he was processed for D.W.I. was on account of the witnesses.
* * * * * *
“The Court: Said what, now ? Witness: That he had parked the car. He was the driver of the car and he stated that he had parked the car.
“The Court: He didn’t say that he was driving the car at the time of the accident? Witness: Well, no, otherwise, he had stated that he had been driving the car, yes sir. I want to express myelf on that — he had said he did.
“Q. Well, what the Court is trying to find out, did he say he was driving at the time of the accident or that he had parked the car there? A. Well—
“The Court: Just if you can remember. A. Yeah, well, sir, I can’t recall the whole thing, I do know that he had told me that he had been driving the car.
“Q. He didn’t tell you what time? A. No, sir.
“Q. He didn’t admit the accident? A. No, sir, he never did.”

Officer Rodriguez of the El Paso Police Department related that he went to the scene of the accident and asked the appellant if that was his automobile and he said it was; that he asked appellant if he had been driving that automobile and he said that he had; that he took appellant to the patrol car and questioned him further if he had been the driver of the automobile during the accident and he said he was trying to gain a parking space and that’s the reason he had just bumped the car in front, but had no knowledge of that car hitting the other one in front. The witness Rodriguez further stated that he asked appellant “if he knew there were two vehicles involved in the accident, other than him,” and he said he had no knowledge of it.

The appellant’s testimony was to the effect that he had parked his car by New-berry’s to wait for his wife; that he parked his car at 5:00 o’clock; that his wife got off from work at 6:00 o’clock; that he locked his automobile; that he went to drink a few beers at the Lounge Bar on the other side of the post office; and that when he came back the officer arrested him.

“Q. The officers were there. And then what happened? A. They told me if I was driving the car and I told them yeah, I was driving.
* * * * * *
“Q. And you said you were? A. Yes, I was, but I wasn’t, I didn’t cause that accident or anything.
* * * * * *
“Q. Did you drive that car any time after 5:00 o’clock? A. No, ah, ah, the officer called the wrecker and took my car away.
“Q. Do you know anything about who moved that car after 5:00 o’clock ? A. No, sir.”

There is no question presented as to the intoxication of the appellant. He voluntarily submitted to a blood test, and all of the evidence with reference to the blood test was stipulated by counsel. In the opinion of the expert witness, the blood sample, showing .22, indicated that the person from whom the sample was taken was intoxicated at the time it was taken.

In viewing the evidence adduced most favorably to the State, we find that although it was established that the appellant had been driving the car, it was not established when he drove it. We concede that the State’s evidence adduced from the witness Rodriguez is very favorable to the State, and from it we might infer that the appellant admitted to Rodriguez that he (appellant) was driving the car at the time of the accident, for appellant did state that he was trying to gain a parking space and that’s the reason he had just bumped the car in front. However, we find nothing in the evidence fixing the time of the accident. The car in front that appellant admitted bumping might not have been the same car involved in the accident in question.

Finding the evidence insufficient to sustain the judgment, the cause is reversed.

WOODLEY, Presiding Judge

(dissenting).

As I understand the evidence upon which the trial judge found appellant guilty, Galvan’s automobile, an Oldsmobile which was parked behind Drusina’s Ford automobile, was pushed by appellant’s Pontiac; automobile into Drusina’s Ford automobile at about 6 P.M. Appellant was arrested at the scene shortly thereafter by Officer Rodriguez, at which time the evidence shows he was intoxicated.

Appellant testified that he parked and locked his automobile about 5 P.M. at which time he was not intoxicated, and had not been drinking; that he consumed six beers before he returned to his car and found the officers there. He denied that he was involved in the accident or that he drove the car after 5 P.M. and testified that he did not remember telling Officer Rodriguez “about hitting the car because you needed some space”, but testified that the officers asked “if I was driving the car and I told them yeah I was driving. Q. Asked if you were the driver of the car? A. Yes. Q. And you said you were?' A. Yes, I was, but I wasn’t, I didn’t cause that accident or anything.”

Officer Rodriguez testified: “Q. All right, now Officer, would you tell the Court what your actions were on February 25th of 1961 in connection with the. Defendant Mr. Duran? A. Upon arrival at the scene of the accident I first talked to Mr. Drusina who sits over here in the courtroom and he stated to me that there were two subj ects in the car that had hit the car behind his— * * * as I was talking to him and the other gentleman, Mr. Galvan, the Defendant Mr. Duran came to the car and he stated, Mr. Drusina stated to me ‘That’s him, right there’. At that time I went and asked Mr. Duran if that was his automobile and he said it was, so I asked him if he had been driving that automobile and he said that he had. * * * After I got him in the car then I questioned him further if he had been the driver of the automobile during the accident and he said he was trying to gain a parking space and that’s the reason he had just bumped the car in front, but had no knowledge of that car hitting the other one in front.”

Drusina testified that he saw the Oldsmobile moving and turned to see who was pushing it and saw a man behind the wheel and another man in the third car (the Pontiac), and went to call the police.

According to appellant’s testimony, his car was locked and the officers were there when he came to it after the accident.

I would hold that the evidence, viewed in the light most favorable to the trial judge’s findings, is sufficient to sustain the conviction.


text:
    L. T. THORNTON, Appellant, v. The STATE of Texas, Appellee.
    No. 33843.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State,
   WOODLEY, Presiding Judge.

The indictment, in the ordinary form for charging felony theft, alleged that appellant took $350.00 in cash from Alvin Spencer without his consent, on or about August 21, 1957.

The case was submitted to the jury as one of theft by false pretext of $350.00 in cash.

The facts relied upon by the state, viewed in the light most favorable to the verdict finding appellant guilty as charged in the indictment, and assessing his punishment at 3 years in the penitentiary, are these.

Appellant owned a number of lots in the colored section of Littlefield, on one of which was a four room stucco house with a garage on the side, in which he lived.

In August of 1957, appellant offered the house for sale to be moved off the lot, and Spencer bought it for $2500.00.

There was no contract or agreement in writing. On August 21, 1957 Spencer gave appellant a check for $2000.00, out of which appellant paid a debt to a lumber company.

Spencer testified that appellant represented to him that this was all he owed on the property. Spencer, however, made an investigation for himself. He testified that he went to the County Clerk’s office even before he paid the first $2000.00; and “called several places, lumber yards and things like that, and I didn’t find where anybody had anything against it * * * I checked at the office here, in the courthouse here, and they overlooked it.” Spencer testified that he thought it was clear and on September 6, 1957, gave appellant a check for $500.00 bearing the notation “For last payment on house to be moved.”

Some two weeks later Spencer moved the house to a 10 acre tract of land a mile south of Littlefield.

Notices of Federal Tax Liens under the Internal Revenue laws of the United States had previously been filed in Lamb County for the purpose of fixing a lien upon all property and rights to property belonging to appellant and his wife.

On May 12, 1960, Spencer received notice that the house had been seized for nonpayment of delinquent internal revenue taxes due from L. T. and Lillie Thornton in the amount of $983.61.

After he found out about the tax lien, Spencer told appellant about it. Appellant said he was going to pay them $500.00 and then they would let him pay a little along until he got it paid up. A few days later appellant told Spencer he had paid $500.00, but he had not.

On May 27, 1960, Spencer paid $350.00 to D. L. King, Acting Group Supervisor for the District Director of Internal Revenue, and the lien on the house was released. He made no demand upon appellant for reimbursement and had no further conversation with him before the trial.

Appellant acquired no money from Spencer other than that represented by the $2000.00 check he received in August 1957 and the $500.00 check Spencer gave him in September 1957, in payment for the house.

To sustain his conviction for theft by false pretext of a part of this money upon the theory that he represented to Spencer that the debt he paid out of the proceeds of the $2000.00 check was all he owed on the property, the evidence must be sufficient to support a finding by the jury beyond a reasonable doubt (1) that appellant knew that there was a lien against the house in which he lived for his unpaid income taxes, which lien would follow the house after its removal from the land. (Proof that appellant intended to defeat the government’s lien would not suffice.)

(2) That appellant represented that the property was clear, intending at the time he received the checks to deprive Spencer of the proceeds of the check to the extent of the government’s lien on the house after it was moved.

(3) That appellant did appropriate a portion of such money he had acquired by such false representation, knowingly made.

(4) That when he delivered the check, Spencer relied upon appellant’s representation that the property was clear rather than the information he received at the County Clerk’s office to that effect.

The evidence as to what occurred almost three years after appellant sold his home to Spencer is not deemed sufficient to sustain a finding that he obtained the checks knowing that Spencer would be required to pay more because of the government’s lien for unpaid income taxes.

To sustain a conviction for theft by false pretext, it must appear that the false pretext was the inducing cause which moved the injured party to surrender to the accused the property in question. Parks v. State, 145 Tex.Cr.R. 150, 166 S.W.2d 704; see also Nichols v. State, 133 Tex.Cr.R. 294, 109 S.W.2d 1057; Eason v. State, 167 Tex.Cr.R. 224, 320 S.W.2d 11.

The evidence does not show that Spencer was induced to part with his $2500.00 by appellant’s representátion that the house was clear. He investigated for himself and was so advised by a deputy county Clerk.

The facts do show that Spencer has a claim against appellant for reimbursement of the $350.00. The payment of such sum by Spencer to the Internal Revenue Service does not, however, establish the theft of $350.00 in cash by appellant from Spencer.

The judgment is reversed and the cause remanded.


text:
    Eli Jackson BUTLER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 34036.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    Aubrey H. Poole, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Edward D. Michalek, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 30 days in jail and a fine of $200.

About 11:25 P. M. on November 6, 1960, State Highway Patrolmen J. W. Wilson and Bob H. Smith stopped appellant, who was driving a 1960 Oldsmobile on the highway. They each testified that they observed the automobile swerve back and forth upon the highway and followed it; that appellant was “driving all over the roadway, back and forth”. They stopped the patrol car behind him.

According to the testimony of the officers, Patrolman Wilson went up to appellant’s car to talk to him. Appellant got out and was “very unsteady on his feet”. When asked to produce his driver’s license, appellant had great difficulty in finding it in his billfold. Officer Wilson detected the odor of alcohol on appellant’s breath; the manner of his speech was broken; he was very slow of speech. Appellant told Officer Wilson that he had been drinking whisky— “an appreciable amount”.

Officer Smith’s description of appellant’s condition was “he could not walk without holding on to the car. * * * He couldn’t stand alone at the time” — he was a “little thick-tongued”; was hard to understand. Officer Smith also smelled alcohol on appellant’s breath.

Both of the patrolmen expressed the opinion that appellant was intoxicated at the time they stopped him.

A cold 6-pack of Pearl beer was found in appellant’s automobile.

Appellant called Mrs. Jones who testified that she sold him a 6-pack of beer at about 10 o’clock P. M. and in her opinion he was not intoxicated at that time. He also called Mr. Garrett, the proprietor of the drive-in grocery where Mrs. Jones was employed. He testified that he had seen appellant during the afternoon and evening and they each drank a beer. Asked whether in his opinion appellant was intoxicated, he answered “Not to the extent, in other words, that he could not attend to business. We talked the business over.”

Prior to taking the stand in his own behalf, appellant also called a character witness who testified that appellant’s general reputation for sobriety, for being a law abiding citizen and for truthfulness was good.

Testifying as a witness in his own behalf, appellant stated that he drank a beer with Mr. Garrett, which was the last beer he drank. He denied that he was intoxicated. He admitted that he had consumed three or four beers during the afternoon and evening. When the officer asked him if he had been drinking appellant replied: “I said yes, and he asked me how much and I said an appreciable amount. Q. Of whisky? A. I didn’t say whisky, I said an appreciable amount, period.”

The evidence heard by the jury about which appellant complains came into the record in this manner. Appellant testified that he was “mad, upset because he (Patrolman Wilson) stopped me for no reason.” This was his explanation as to why he answered “an appreciable amount.”

Appellant gave a different version of the facts surrounding his arrest than that given by the officers. According to Officer Wilson, appellant said he had been drinking whisky. He denied this.

The officers testified that Officer Wilson went up to appellant’s car and talked to him before he got out. Appellant denied this and testified upon his direct examination by his counsel that after he had stopped, and the patrolmen stopped behind him, “I then got out of my car and walked back. Many times when I am stopped by a policeman I always get out of my car and walk back to the police car and he got out approximately the same time I did, the driver.”

In his cross-examination, the attorney for the state made reference to this answer of appellant, and on re-direct examination appellant’s counsel asked him “ * * * the phrase always arrested is that applicable to you as a person who is always being arrested?” to which he answered “No, Sir.”

Appellant complains that on re-cross appellant was interrogated about and testified to seventeen arrests for traffic law violations.

Appellant appears to have invited such evidence. Be this as it may, most of the evidence was admitted without objection stating any ground therefor, or without objection, and on re-redirect examination appellant testified regarding the prior offenses.

No reversible error is here shown. Patterson v. State, Tex.Cr.App., 338 S.W.2d 469; Banks v. State, 165 Tex.Cr.R. 290, 306 S.W.2d 908, and cases cited under Criminal Law 1137(5), Texas Digest.

Appellant testified that he was suffering from stomach ulcers at the time in question and if he drank an excessive amount of beer and whisky it tended to irritate the ulcers and cause severe pain in his stomach and nervousness, consequently, he testified “I don’t do it.”

He testified that he had been to the hospital three times as a result of the ulcers, the first being in March 1961. This was some three months after he was arrested for the offense for which he was on trial.

Prior to testifying, appellant called two witnesses and sought, from the hospital records of which they were custodians, “to show that this man had a physical condition which the report will reflect.” The court sustained the objection after it was shown that appellant did not enter the hospital until several months after his arrest.

The record does not show that the excluded records were admissible in evidence or that the exclusion thereof was harmful to appellant.' ' -

The remaining claims of error have been considered and are overruled.

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

The judgment is affirmed.


text:
    Weldon L. RUSSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 33959.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    Appellant represented himself.
    , Leon B. Doúglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Our prior opinion in this cause is withdrawn.

The offense is driving-while intoxicated, as a second offender; the punishment, 5 days in .jail and a fine of $300.00.

Appellant . entered a plea of guilty, waived the right of trial by jury, and was tried before the court..

The punishment • prescribed by Article 802b, Vernon’s Ann.P.C., for the second offense of driving while intoxicated is “by a fine of not less than One Hundred ($100.00) Dollars nor more than Five Thousand ($5,000.00) Dollars, or confinement in the county jail not less than ten (10) days-nor more-than two (2) years, or by both'such fine and imprisonment, or. by confinement in the state penitentiary not to exceed .five (5) years.” .

Since the court' saw fit to impose a jail term, it was incumbent upon such court to comply with the statute. In Rutherford v. State, 79 Tex.Cr.R. 605, 187 S.W. 481, where the punishment was less than the minimum, this Court held that no court could assess a punishment that the law does not authorise! See also Justice v. State, Tex.Cr.App., 341 S.W.2d 431, and Henderson v. State, Tex.Cr.App., 318 S.W.2d 898.

Because of the error shown, the judgment is. reversed and the cause remanded.


text:
    Alfred LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 34013.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.
    C.-'C. Divine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is possession of heroin, with three prior convictions for felonies alleged for enhancement; the punishment, life.

Narcotic officers of the City of Houston (Hightower and Chavez) testified that, in company with two Federal narcotic officers, they placed a certain apartment house in the City of Houston under surveillance on the day in question; that about 6:15 P. M. appellant arrived at the apartment and admitted himself into apartment #1 by using a key; that shortly thereafter appellant left the apartment, proceeded to a shed in the rear thereof, where he stooped and picked up a small package with which he returned to the apartment; that within a few moments Frank Lozano and Helen Acker-Lo-pez arrived and entered apartment #1; that a short while thereafter appellant left the apartment and, as they approached him, he threw a small white package to the ground. Hightower recovered the package, and Chavez placed appellant under arrest. Following this, apartment #1 was searched by virtue of a search warrant which they served upon appellant, but no contraband was found.

The chain of custody of the package found by Officer Hightower was established, and it was shown to contain 3.7 grams of 46% pure heroin.

The prior convictions were stipulated.

Appellant, testifying in his own behalf, stated that he went to the apartment in question to collect an automobile payment from Helen Acker-Lopez; that he did so and, upon leaving the apartment, was apprehended by the officers. He denied that he dropped the package which Hightower had retrieved. He testified at great length that police brutality was inflicted upon him following his arrest and called his physician, who examined him upon his release on bond. Dr. Dew testified that he found two bruises on appellant’s arm and an abrasion on his knee and said that appellant complained of soreness in his ribs. Appellant called a U. S. weatherman, who testified that it was dark in Houston at the time the officers said they saw appellant dispose of the package in question.

Appellant called Helen Acker-Lopez as a witness, and she corroborated his account of the automobile payment, but went further and said that she was in the process of shooting herself with narcotics, “getting fixed,” when the officers arrived at the apartment. She admitted that she was an addict and that she and appellant “shot narcotics together * * * every day,” but refused to testify as to where the narcotics which she used on the day in question had come from.

This we deem a fair resume of the lengthy record. There are no formal bills of exception or written objections to the court’s charge. We shall discuss the contentions advanced by appellant’s attorney in the order advanced in his brief and in argument.

Appellant questions the sufficiency of the indictment to charge him with being amenable to prosecution under Article 63, Vernon’s Ann.P.C. An analysis thereof is called for. It was drawn in chronological order. That is, the first paragraph charged that appellant was a person who had theretofore been convicted of three felonies less than capital. The second paragraph alleged a 1945 conviction in the United States District Court for the Southern District of Texas, Houston Division, for unlawfully acquiring marijuana. The third paragraph alleged a 1947 conviction in the same court for the same offense. The fourth paragraph alleged a 1952 conviction in the same court, Laredo Division, for importing a narcotic drug. The fifth paragraph charged the primary offense; that is, a violation of the Texas Uniform Narcotic Act, in that he did on December 13, 1960, possess heroin.

Appellant first contends that the prior convictions in the Federal court were not available to the State for enhancement purposes. Appellant’s counsel frankly admits that he relies upon the concurring opinion on appellant’s motion for rehearing in Granado v. State, Tex.Cr.App., 329 S.W.2d 864, 868. Appellant’s motion for rehearing in Granado (p. 868) was granted on other grounds than those before us now, and the rule therein announced has since been overruled, with the writer dissenting, in Fairris v. State, #33,614, Tex.Crim., 350 S.W.2d 935. We quote from the opinion in State’s motion for rehearing (329 S.W.2d p. 867) as follows:

“The punishment for violation of the Uniform Narcotic Act * * * may properly be enhanced under Article 63, Vernon’s Ann.P.C., upon allegation and proof of two or more convictions for other felonies less than capital (than violations of Article 725b, V.A.P.C.).”

Clearly, the three Federal court convictions, were not for a violation of Article 725b and were properly alleged for enhancement under the holdings of this Court in Bowers v. State, 155 Tex.Cr.R. 401, 235 S.W.2d 449; Garcia v. State, 140 Tex.Cr.R. 340, 145 S.W.2d 180; and Arnold v. State, 127 Tex.Cr.R. 89, 74 S.W.2d 997.

Reliance is had upon Ex parte Puckett, 165 Tex.Cr.R. 605, 310 S.W.2d 117, and Ex parte Scafe, Tex.Cr., 334 S.W.2d 170. Neither case supports appellant’s contention. The facts necessary to establish appellant’s guilt under any of the prior convictions alleged for enhancement would have constituted proper grounds for a prosecution under Article 725b, V.A.P.C., for possession of a narcotic drug; such is not so in the cases relied upon.

Appellant’s second contention is that the 1945 and 1947 convictions had been ■once successfully used for the purpose of enhancement in the 1952 case. We are aware of but two means by which the question might be raised, to-wit, (1) by formal hill of exception, or (2) by objection to the introduction of the prior judgments, stating the proper grounds for such objection. Article 759a, Vernon’s Ann.C.C.P. Appellant chose neither method. At no time did he inform the court that he was objecting to the introduction of the judgment in the prior case on the grounds which he now asserts, and the record does not affirmatively •show such grounds to be true.

Appellant objected to the introduction of copies of the final judgment, sentence and commitment certified as being a true and full copy of the original by the deputy district clerk of the United States District Court for the Southern District of Texas. Such copies were admissible under the terms of Article 3731a, Vernon’s Ann. Rev.Civ.St., and the holding of this Court in Turley v. State, Tex.Cr.App., 327 S.W.2d 580, and the cases there cited. We find no reversible error in the remarks of the court made while ruling on the admissibility of such documents.

Appellant’s motion to quash the panel cannot he considered. It is not raised by c, formal bill of exception. The statement of facts in connection therewith is not filed as a separate statement of facts under the terms of Article 759a(6), V.A.C.C.P. Pierce v. State, 159 Tex.Cr.R. 504, 265 S.W.2d 601. We observe, however, that the careful trial judge immediately examined the juror in question and established that appellant had not been injured.

Appellant questions the legality of his arrest. Such question is not in the case. The contraband was not found as a result of the arrest and incident search of appellant’s person and was therefore admissible, irrespective of the validity of the arrest. Garcia v. State, 163 Tex.Cr.R. 146, 289 S.W.2d 766.

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


author:
MORRISON, Judge.
      WOODLEY, Presiding Judge

text:
    Claude Neil LOCKHART, Appellant, v. The STATE of Texas, Appellee.
    No. 33725.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.

      Frank D. McCown, Dumas, for appellant.
    Eli Willis, County Atty., Dumas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.00.

The record reflects that appellant’s automobile jumped a curb and ended up in a vacant lot near his home in the City of Dumas.

Ted M. Cassleberry, a policeman for the City of Dumas, testified that he was driving down a street and noticed headlights following him rather closely; that he stopped his car and appellant stopped behind him; that he walked back to appellant’s car and had a conversation with him and told appellant to meet him at the police station; that there was a small child in the front seat of appellant’s car; and that he did not have an opportunity to observe appellant very closely because he was standing outside of the car talking through a lowered window. He stated that he waited a few minutes at the-police station for appellant who did not appear and then went back on patrol; that about fifteen minutes later he received a call about a wreck and went to the scene of the accident, arriving there about the same time-as Officer Crockett; that a woman came up- and identified herself as appellant’s wife; that she appeared very excited and said her husband had been in an accident and had been drinking, and that he was in the house.,

Joe Crockett testified that he was a police-officer in Dumas; that he went to investigate the accident, and appellant’s wife came-up with a small child in her arms and seemed very upset and nervous; that she told’ them that appellant was in the house, that she was afraid the baby. was hurt, that appellant had been driving all evening with the baby, that she had heard a crash and' looked out and saw their car in the vacant lot. Officer Crockett stated that he asked appellant to come out to the scene of the accident; that appellant did so, saying he-had had a few drinks; that he found a bottle of Gordon’s Gin in appellant’s car with approximately an inch of its contents-remaining; that appellant smelled of alcoholic beverages, talked with a thick tongue,, was rowdy, was weaving and erratic in his-walking, and, in his opinion, was intoxicated.

Cathleen Jo Oliver testified that she was a police dispatcher for the City of Dumas; that she was on duty the night in question;. that appellant’s wife called her and advised-her that appellant was drunk and had had an accident in their automobile with their little girl therein. She stated that she had' attended school with appellant’s wife and knew her voice, and that appellant’s wife seemed very excited when she called to* report the accident.

Hugh Poage and Arlie Maxwell, Texas Highway Patrolmen, both testified that they had observed appellant at the scene of the accident, that his speach was slurred and he was unsteady on his- feet, and that he was, m their opinion, intoxicated.

Appellant testified that, as he approached the stop sign at the intersection where the accident occurred, he applied his brakes but the street was iced over and he slid on the ice and went through the intersection, hitting the curb on the other side, and ended up in the vacant lot immediately behind his house; that he went into his house carrying the little girl with him; that he told his wife he was not hurt but he was not sure about the child; and that he started to make .a call to the police department when his wife told him that she had already called. He stated that he had drunk one can of beer about four o’clock in the afternoon and denied having anything else to drink prior to the accident, which happened around 1:30 A.M.; he denied telling the officer he. had had a few drinks and contended that he did not know how the bottle of gin got in his .automobile.

Gerry Lockhart testified that she was the wife of appellant; that they had been to Perryton and returned at eleven or twelve o’clock at night; that appellant drank some coffee and then drove to the station where he worked, taking the little girl along with him; that she later heard a loud crash and looked out the window and was pretty sure it was their car in the vacant lot; that she ■called the police and told them she thought there was an accident behind her house and ■■wished they would send someone to do whatever was necessary; that she walked out in the yard and saw appellant coming with the baby and that the baby did not appear to be hurt. She stated that her husband was not drunk and had not been drinking, that she told the officer he had only had one can of 'beer that afternoon, and that she did not tell the police dispatcher her husband was ■drinking.

Wayne Randolph and David Slagle testified that appellant took them home from the service station a short time before the accident and that he was not intoxicated.

Charles Lockhart, appellant’s father, testified that he saw appellant early the next morning and did not notice any evidence that indicated appellant had been drinking.

H. L. Hooten testified that he was a former mayor of Dumas, that he was acquainted with appellant and his reputation as a peaceable, law-abiding citizen was good and he had the reputation of being a sober person.

The jury resolved the disputed issue against appellant. We will discuss the contentions advanced by counsel in brief and argument.

Appellant contends that the State’s failure to introduce any evidence from Officer Cassleberry as to appellant’s intoxication evidences a reasonable doubt as to the sufficiency of the evidence under the rule in Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251. In the case at bar, the State based its case upon direct evidence as to appellant’s intoxication, which testimony was not obviously weak; therefore, the rule of the Ramirez case is not applicable. Barker v. State, Tex.Cr.App., 329 S.W.2d 889, and Lowe v. State, 163 Tex.Cr.R. 578, 294 S.W.2d 394.

Appellant next contends that the trial court erred in allowing into evidence the statements made by appellant’s wife to Officers Cassleberry and Crockett as they were not a part of the res gestae.

Since appellant permitted the testimony of the witness Oliver to go to the jury without objection, any error in permitting the officers to testify as to what appellant’s wife told them was waived. Andrews v. State, 161 Tex.Cr.R. 550, 279 S.W.2d 331.

We have examined all of appellant’s complaints with care, and, no reversible error appearing, the judgment is affirmed.

WOODLEY, Presiding Judge

(concurring).

Appellant relies upon Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251, and directs our attention to the fact that we were in error when we said, in Lowe v. State, 163 Tex.Cr.R. 578, 294 S.W.2d 394, that the Ramirez case was submitted to the jury on the law of circumstantial evidence. I would overrule the Ramirez case.


text:
    Marvin Austin BOOKER, Appellant, v. The STATE of Texas, Appellee.
    No. 33969.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.
    Robert B. Billings and Neal De Shazo, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., William F. Tucker, Frank Watts, Jack Hampton, Phil Burleson, Asst. Criminal Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for incest; the punishment, 2 years.

The statement of facts in the record is denominated a “Partial Statement of Facts” and shows that it does not contain all of the evidence adduced upon the trial.

There are no formal hills of exception.

The sufficiency of the evidence and the informal hills of exception, relating to the court’s rulings on the admission of evidence, cannot he appraised without a complete statement of facts or other showing that the claimed errors were not waived or cured. See Tomlin v. State, Tex.Cr.App., 338 S.W.2d 735 and cases there cited.

Likewise, in the absence of a complete statement of facts, we may not pass upon the questions relating to the court’s charge. Bailey v. State, Tex.Cr.App., 342 S.W.2d 338.

Appellant complains of the court’s refusal to grant him fifteen peremptory challenges in selecting the jury in the case; it being contended that he was entitled to that number of challenges because the first count of the indictment charged the offense of rape, a capital offense. While appellant’s complaint is not before this Court by a proper bill of exception, we observe from the record that prior to the examination of the jury panel, the first count in the indictment was dismissed by the court upon motion of the State and the trial proceeded upon the second count of the indictment for the offense of incest, a non-capital felony. Under such record the court did not err in refusing appellant fifteen peremptory challenges, but instead allowing him only ten. Hogue v. State, 155 Tex.Cr.R. 310, 234 S.W.2d 687.

The judgment is affirmed.

Opinion approved by the Court.


author: POPE, Justice.

text:
    Bobble BROUSSARD, Appellant, v. Lawrence DAVILA et al., Appellees.
    No. 13829.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1961.
    Rehearing Denied Dec. 6, 1961.
    Keys, Russell, Keys & Watson, M. W. Meredith, Jr., Corpus Christi, for appellant.
    Wade & Howard, Corpus Christi, for appellees.
   POPE, Justice.

Bobbie Broussard, defendant below, has appealed by writ of error from a default judgment. Plaintiffs undertook to serve her by substitute service under Rule 106, Texas Rules of Civil Procedure. In our opinion, the judgment must be reversed, because (1) plaintiffs did not comply with the terms and conditions of the court’s order which authorized substitute service, and (2) the sheriff’s return is fatally defective.

Plaintiffs, Lawrence Davila, Lupe Davila, and Southern Insurance Company, had difficulty in locating defendant, Bobbie Brous-sard. Failing to serve her with citation, they resorted to that part of Rule 106 which states that, in cases “where it is impractical to secure personal service, as above directed, the court, upon motion, may authorize service * * * in any other manner which will be reasonably effective to give the defendant notice of the suit.” Plaintiffs made a motion, and the court’s judgment recites that it heard evidence in support of the motion for substitute service. The court then granted the order. The order provided that service could be made upon Harold Easley, manager of Boyd and Easley, Inc., an independent adjusting concern, who had been in touch with Bobbie Broussard, and who had been asked to investigate the claim by defendant’s insurer. However, the court’s order carefully stated the manner in which the service on Easley should be made. It required plaintiffs to serve citation on Easley and to deliver to him (1) the plaintiffs’ petition, (2) a copy of the motion for substitute service, and (3) the order authorizing the substitute service. Good reasons exist for such an order, for otherwise a person not named as a party in the petition may ignore the service because the pleadings show that he is not a party. The other documents were necessary to explain the procedure.

Rule 106, T.R.C.P., empowers a judge to authorize service by methods other than personal service. The judge is the one who prescribes the manner of such service. Except upon the terms and conditions stated by the judge in his order, there is no authority for substitute service. If the manner prescribed is not followed, then service is accomplished in a manner not authorized by the judge, but by someone else. When the judge states the terms and conditions, they must be followed. 42 Am.Jur., Process, § 121. The order must be strictly followed. 72 C.J.S. Process § 43. The court order was not followed and there was no substitute service. The fact that Easley knew why he was given notice does not excuse compliance with the court’s order.

The sheriff’s return is also faulty. The petition names Bobbie Broussard as the sole defendant. The sheriff’s return shows that service was made by delivering to the within-named defendant, in person, a true copy of the citation. The person served is then shown to be Harold Easley. The return affirmatively shows that a copy of plaintiffs’ petition, but nothing else, was delivered to Harold Easley. The sheriff’s return recites that ordinary service was made upon a named defendant. The same return on its face shows that service was not made on the defendant, Bobbie Brous-sard, but upon a non-defendant, and not in the manner required by the court. Hyltin-Manor Funeral Home, Inc. v. Hill, Tex.Civ.App., 304 S.W.2d 469; Delgado v. Delgado, Tex.Civ.App., 253 S.W.2d 708.

The judgment is reversed and the cause remanded.