author: BELCHER, Commissioner. McDonald, judge.

text:
    Donnie TEW, Appellant, v. The STATE of Texas, Appellee.
    No. 36806.
    Court of Criminal Appeals of Texas.
    April 22, 1964.
    Rehearing Denied June 3, 1964.
    Second Motion for Rehearing Denied June 27, 1964.
    Charles William Tessmer, Dallas (On Appeal Only), Emmett Colvin, Jr., Dallas (On Appeal Only), for appellant.
    Alton R. Griffin, Dist. Atty., Travis Shelton, Special Prosecutor, Lubbock, Roy B. Johnson, Asst. Dist. Atty., Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

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

The testimony of the state reveals that the appellant, Crickett Shirley, Homer Powell, Floyd McQueary, Barbara Jean Crawford, Janice Chapman, and the deceased, James Shobert, left the Lasso Club about 2 or 3 a. m., June 20, and went to the house of the appellant, where the appellant and the deceased began gambling with cards as the others watched while seated around a table. The deceased was defeated in the games, and when the appellant began teasing him about it, the deceased got mad, pulled a pistol, pointed it across the table at the appellant and told everyone to sit still. After a brief time, Powell started into another room, and the deceased shot him in the back, and also appeared to have kicked Powell while on the floor. Powell said he would report the shooting as an accident, and he, the appellant, and deceased shook hands and agreed to forget the incident. Powell left in a car, with Shirley following in another car. At this time it was daylight. Everyone left the appellant’s house except him. Without stating where they were going in the presence of appellant, the deceased, McQueary, Crawford and Chapman drove to Shirley’s house and parked in front at the curb. Crawford and Chapman remained in the car while the deceased and McQueary went to the house. Shirley soon arrived, parked his car in the driveway, and went to the front door, where the deceased was standing. At this time someone said “Get out of the way, Crickett (Shirley)” and appellant was then seen beside his car parked at the curb, with a shotgun pointing toward the house. A shot was heard, and the deceased fell face down inside the house with his feet in or near the door, with a pistol in his pants pocket. After the shot, the appellant immediately left in his car.

The physician who examined and treated the deceased at the hospital testified that pellets from a shotgun covered the left side of his face from the left side of the neck to the nose, and that the hemorrhage of the left temporal lobe of the brain was the cause of his death.

The appellant, testifying in his own behalf, stated that the during the time the deceased had the pistol pointed toward him at the close of the card game, the deceased said “I should kill you” and also said several times that he was going to kill him; that after the deceased had shot Powell he put his foot on him saying “I ought to finish you off.”

At this time appellant knew of four other persons the deceased had recently shot and of two he had assaulted with a gun.

According to the appellant, the following occurred:

When everyone had left his home, the appellant went next door to the home of his parents and obtained a shotgun. Appellant then went to Shirley’s house to see about Powell, and because he was afraid and did not know what the deceased would do if they met, he took the shotgun with him. When the appellant stopped at the curb in front of Shirley’s house he saw Shirley and the deceased on the front porch. The appellant, wanting to ask Shirley about Powell, called while seated in the car: “Hey, Crickett (Shirley).” Shirley did not respond, but the deceased turned around, reached for his pocket and as he pulled out his gun, the appellant grabbed the shotgun and got out of the car, when the deceased had leveled his gun on the appellant, he fired the shotgun at the deceased, the deceased fell, and appellant immediately left.

Shirley testified that as he opened the front screen door, the deceased was standing behind him, and when he was about one step inside the door he heard someone say “Hey,” and then he was shot in the right shoulder; and that he saw a pistol beside the deceased on the floor.

Billye Bownds testified that she was in Shirley’s home when Shirley and the deceased stepped inside the front screen door, that' when she heard someone say “Hey,” the deceased pulled a pistol and turned, facing the outside toward the street, and pointed his pistol outside, then she heard a shotgun discharged, and the deceased spun around and fell on the floor. She further testified that after she heard the shot, she saw the appellant in front of the house getting in his car with what looked like a shotgun.

Appellant contends that the trial court’s charge on provoking the difficulty was not justified upon the facts presented and hence calls for a reversal.

The court charged the jury upon the law of self defense, and also upon the law of provoking the difficulty which is a limitation upon the right of self defense.

The facts and circumstances of this case, including appellant’s acts in going to Shirley’s house, getting out of the car, and standing beside it at the curb with a shotgun, and saying “Get out of the way Crickett (Shirley)” or “Hey”, while Shirley and the deceased were at the door or entering the house, could be considered by the jury in determining whether the appellant intended to provoke the deceased and whether such acts or words or both were reasonably calculated to and did in fact provoke the deceased to attack him. It is concluded that the trial court was warranted in charging on the law of provoking the difficulty. Crowley v. State, 117 Tex.Cr.R. 372, 35 S.W.2d 437; Tapley v. State, 158 Tex.Cr.R. 495, 256 S.W.2d 583; Muckleroy v. State, 165 Tex.Cr.R. 629, 310 S.W.2d 315.

It is insisted that the trial court committed error in permitting the state to prove, over objection, the prior marriages and divorces of appellant’s witness Bownds.

The witness first testified that her name was Billye Bownds, and next that her true name was Billye Ann Huffman, explaining that Bownds was the name of her step-father. On cross-examination she stated that she was presently married to Judd; and that she was first married to Freeman Smalley.

At this time the appellant objected “ — to this, it has no bearing on the case.” The objection was overruled and exception was reserved.

The witness further testified, without objection, that after she divorced Smalley she married Aaron Gilstrap, then she divorced him and married James Witt, and after her divorce from Witt she married Judd.

The admission, without objection, of testimony of two marriages other than to Judd and Smalley, and three divorces, when considered in connection with the objection as made to the testimony of her first marriage to Smalley, does not show reversible error.

The complaint directed to the question propounded to the appellant on cross-examination, about his purpose for going to Shirley’s house, arose as follows:

“Q. Donnie (appellant), why don’t you tell this Jury the truth, that you went over there to pull that gun on Jimmy Shobert (deceased) ?
“MR. SALYARS: Your Honor, that’s improper cross examination. The witness is under oath and testifying under oath.
“MR. SHELTON: I withdraw the question.
“THE COURT: All right.”

The question was withdrawn and there was no request that the court instruct the jury not to consider the question or a motion to declare a mistrial. Therefore, no error is presented. Wall v. State, Tex.Cr.App., 240 S.W.2d 763; Meza v. State, Tex.Cr.App., 360 S.W.2d 403. However, the question does not appear to have been of such a nature as would call for a reversal under all of the facts and circumstances reflected from the record.

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

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

McDonald, judge.

Appellant’s able counsel strenuously urges that we were in error in holding that the trial court did not err in the submission to the jury of a charge on provoking the difficulty.

We have carefully re-examined the record and the opinion in this cause, along with numerous cases on this proposition.

We feel that a correct disposition was made in our original opinion. Appellant’s motion for rehearing is overruled.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Carl JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 36807.
    Court of Criminal Appeals of Texas.
    May 27, 1964.
    Rehearing Denied June 24, 1964.
    Leonard Howell, Midland, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of whiskey, wine and vodka for the purpose of sale in a dry area; the punishment, 90 days in jail.

No statement of facts accompanies the record. From the transcript it appears that appellant plead guilty on January 20, and that motion for new trial was overruled on January 21, “without the Defendant being present thereat, but being represented by his attorney.” It is only in those cases where the defendant desires to be present at the hearing of a motion for new trial and is denied such right that a reversal is called for, as will be seen by our opinion in Johnson v. State, 163 Tex.Cr.R. 101, 289 S.W.2d 249, in which we discuss Henderson v. State, 137 Tex.Cr.R. 18, 127 S.W.2d 902, upon which appellant relies.

We find no factual support in the record of the other contentions advanced in appellant’s brief.

No reversible error appearing, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    John Charles LOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 36957.
    Court of Criminal Appeals of Texas.
    May 27, 1964.
    Rehearing Denied June 27, 1964.

      Dalford Todd, Dallas, for appellant.
    Henry Wade, Dist. Atty., Don Wills, George Milner, Harryette Bercu and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

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

While Billy Ray Smith, about 7:30 p. m., was walking across a street to his car which was parked on the opposite side, three girls in an automobile asked him if he would like to take a ride, and he accepted. The appellant and another man soon joined the party, and after Smith bought some beer they drove to White Rock Lake. When Smith had opened a can of beer and stepped from the car the appellant thrust a pistol against his ribs, thereby bruising his body, and told Smith to lay his billfold on the seat of the car, which he did because he was in fear of his life or bodily injury. Appellant then directed Smith to walk in a certain direction and not to start back because he “wouldn’t make it.” Smith complied, and appellant and the other four left in the car. Shortly thereafter Smith notified the police and informed them of what had occurred. When he returned to his car he found that his billfold and some papers had been placed in the car. Smith further testified that his billfold contained eight dollars in money at the time appellant ordered him to place it on the car seat while holding a pistol against his body; that the money was not in the billfold when he next saw it in his car; and that he never gave anyone his consent to take it and it was taken against his will. The next day at the police station, Smith identified the appellant as the same person who, while holding a pistol, had commanded him to place his billfold on the car seat. At this time, he also identified appellant’s companions, who were present when his billfold was taken.

The officers found the appellant, two other men, and three girls asleep in and near a car in a park the morning after the report of the alleged robbery in this case. They found a loaded pistol in the purse of the girl who, with the appellant, was asleep in the back seat of the car. Smith testified that this pistol appeared to be the same one used by the appellant when his billfold was taken. Officer Boyd testified that Smith had a bruise on the side of his body.

Testifying in his own behalf, the appellant stated that after loaning his car to three girls, they returned for him and his companion, after which they stopped for the other girl and Billy Ray Smith; and that after Smith bought some beer they started to White Rock Lake. On the way to the lake, Smith became familiar with his girl companion and after repeated objections by her the appellant told Smith to leave her alone. When Smith continued, they stopped, and appellant told Smith to get out and leave, which he did. No force or weapon was used to cause him to leave. Later, the girl discovered Smith’s billfold in the back seat. As she knew where Smith’s car was parked, the parties drove by and left the billfold in the seat after examining the billfold and finding that it contained no money.

Appellant denied taking any money at any time, or that any of his companions, within his knowledge, did so. Appellant stated that after riding around for some time he went to sleep and the next thing he knew it was morning and officers were awakening him and his companions, in a park.

Appellant identified the pistol exhibited to him at the trial as the same pistol that had been under the seat of his car for several days but testified that it was owned by a friend and had been left there after they had been practice-shooting with it.

Complaint is made that the jury arrived at their verdict by lot or in a manner showing that they did not understand the evidence in the case. He relies upon certain purported questions propounded by the jury to the court after they had retired for deliberation, and the purported instructions to the jury in response to the questions.

The questions referred to are not in the record. Apparently, said questions are included in the purported instructions appearing in the transcript. There is no showing that the jury saw said instructions. These instructions are not authenticated in any manner which would authorize their consideration. Bradford v. State, Tex.Cr.App., 372 S.W.2d 336.

It is insisted that the trial court erred in permitting the state’s witnesses to testify as to conditions surrounding appellant’s arrest the morning after the alleged offense. While testifying, the appellant related most of the conditions of which he complains, including the name of the girl who was sleeping on the trunk of the car when the officers awakened them, and also that a loaded pistol was found under the car seat. In view of all the evidence the admission of that complained of was not error.

Error is urged in allowing the state to cross-examine the appellant about his activities on Friday night before the alleged robbery on Saturday night. No objections were made to appellant’s testimony relating what he did Friday night until he met one of the men and one of the girls he was with Saturday night. Except that they were acquainted and were together, there is no evidence pertaining to or connecting them with the alleged robbery Saturday night. Hence no error is shown.

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

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

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Ex parte Samuel SPIVEY.
    No. 37038.
    Court of Criminal Appeals of Texas.
    June 17, 1964.

      J. Paul Pomeroy, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Carl E. F. Dally, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding denying appellant’s application for reduction of bail in a robbery case and remanding him to custody of the sheriff of Harris County.

The record reflects that at the time of the hearing, appellant was in custody of the sheriff of Harris County in default of bail fixed by the court in the amount of $100,000, after return of an indictment in Criminal District Court No. 3 of Harris County against him and three co-defendants for the offense of robbery with firearms, said indictment being then pending against appellant and his co-defendants in Cause No. 109,587 on the docket of Criminal District Court No. 4 of Harris County.

By supplemental transcript filed herein, it is now made known that, pending appellant’s appeal from the order remanding him to custody, the indictment upon which bail was set has been, dismissed by the court upon motion of the district attorney and a new indictment returned by the grand jury in Criminal District Court No. 2 in Cause No. 110,498, charging appellant and his co-defendants with commission of the same offense.

The dismissal of the indictment renders moot the question presented relative to the amount of appellant’s bail fixed thereon.

It follows that the appeal should be dismissed.

Appellant’s right to a hearing before the trial judge upon the question of his right to bail to answer the new indictment and the amount thereof is not before us and will not be prejudiced by the dismissal of this appeal.

The appeal is dismissed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Leo W. BLAKE, Appellant, v. The STATE of Texas, Appellee.
    No. 37023.
    Court of Criminal Appeals of Texas.
    June 17, 1964.

      Thomas D. White, Charles M. Leftwich, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Jimmy James, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is embezzlement of $970.00 in money; the punishment, 2 years.

Conviction upon a previous trial was reversed. Blake v. State, Tex.Cr.App., 365 S.W.2d 795.

The oral statement of the appellant to his employer, B. J. Stahlman, was admitted in evidence as was the written confession of the appellant subsequently made to Deputy Sheriff H. C. Carpenter.

As a witness in his own behalf, the appellant testified that while they were alone Mr. Stahlman told him that if he would help find all the shortages in his bookkeeping system he would not file charges against him, otherwise he would "more or less throw the book at me.”

Appellant objected to the court’s charge because it did not clearly instruct the jury not to consider any oral statement made by him after he was placed under arrest and “ * * * does not clearly charge the jury not to consider Defendant’s written or oral statements introduced herein if the— have a reasonable doubt as to whether Defendant made said statements because he was promised anything or threat_

The charge of the court included an instruction relating to the statement or confession signed by the appellant, but none relating to the oral confession shown by the testimony of Mr. Stahlman.

The objection appears to have been sufficient to direct the trial court’s attention to the omission of an instruction to the effect that the oral confession of the appellant to his employer could not be considered if induced by his employer’s promise or threat. Fisher v. State, Tex.Cr.App., 379 S.W.2d 900, and cases cited.

The omission of such an instruction was calculated to injure the rights of the appellant and requires reversal.

The judgment is reversed and the cause remanded.


author: McDonald, judge. WOODLEY, Presiding Judge.

text:
    Allen FISHER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36891.
    Court of Criminal Appeals of Texas.
    May 13, 1964.
    Rehearing Denied June 17, 1964.

      Donald Lasof, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and James I. Smith, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is felony theft with two prior felonies less than capital used for enhancement purposes; the punishment, life in the state penitentiary.

The facts, briefly stated due to our disposition of this cause, are as follows. Appellant was an employee of the Jackson Texaco Service Station at 7918 Eastex Freeway, Houston, Texas, operated by Aaron Jackson and his brother, Charles Jackson. Five automobile tires were found to be missing on November 30, 1962. Appellant first denied any knowledge of what happened to the tires.

Charles Jackson, co-owner of the station, in an attempt to discover who took the tires and find their location made the following statements to appellant, i. e., that he (Charles Jackson) would help pay for the tires if they had been sold, would not press charges against appellant, would not call the police and that appellant would not be fired.

The only serious complaint made by appellant is in the action of the court in refusing to submit appellant’s requested charge as to the voluntary nature of the confession made to Charles Jackson. The charge requested is as follows: “You are further instructed that if you believe from the evidence, or have a reasonable doubt thereof, that prior to the making of the alleged confession Charles Jackson told the defendant or promised him, the said defendant, that he the said Charles Jackson would not press charges against the defendant, and such promise or statement was operating on the mind of the defendant at the time said confession was made, and the defendant was induced thereby to make the confession, then the same should be entirely-disregarded by the jury and not be considered against the defendant.”

We conclude the trial judge was in error in his failure to so charge the jury.

It is a well established general rule affirmed by statute in this state, that a confession of guilt by an accused is admissible against him when, and only when, it was freely and voluntarily made without having been induced by the expectation of any promised benefit, or by the fear of any threatened injury or by the exertion of any improper influence. Art. 726 Vernon’s Tex. C.C.P.

The early case of Searcy v. State, 28 Tex.App. 513, 13 S.W. 782, was reversed upon similar grounds. That case held that a confession was inadmissible where defendant was induced to make the confession by the Sheriff, who after warning him, told him if he would tell all about it, he would do all he could for him in the case, the confession was not voluntary, being induced by promise, persuasive and positive, by one in authority.

We also recognize the rule as stated in the state’s brief that, “To render a confession inadmissible upon the ground that it was induced by the promise of some benefit to defendant, such promise must be positive, and must be made or sanctioned by a person in authority and it must also be of such character as would be likely to influence the defendant to speak untruthfully.” 1 Branch 2d Sec. 88.1 page 95.

It seems to us that a fair criterion to follow in determining the admissibility or inadmissibility of a confession where the contention is made that the confession was secured by influence or promise is to test the degree of influence exerted. That is, if the influence applied was such as to make the defendant believe his condition would be bettered by making a confession, true or false, then the confession should be excluded. On the other hand, if this is not true then the confession is admissible.

We adhere to and follow the rule announced by Judge Krueger in Ethridge v. State, 133 Tex.Cr.R. 287, 110 S.W.2d 576, wherein he quoted from Wharton on Criminal Evidence, Sec. 650-a, in discussing the meaning of the “person in authority,” which says:

“The actual relation between the parties, and perhaps the relation as it actually appeared to the accused, is the controlling factor.”

The same author further says:

‘The test is whether the accused was likely to view the promise as authoritative, and this test is to be determined by the standard of the person confessing.’ The injured party, the employer of the accused, and officers, have been held to be within the meaning of ‘persons within authority.’ ”

This, we think, sustains our view that the statement was made to a person in authority. Hanus v. State, 104 Tex.Cr.R. 543, 286 S.W. 218, opinion upon rehearing, is similar to the case at bar in that a priest was the injured party, and he largely induced the confession. This case was reversed because of the refusal of the Court to give the jury appropriate instructions to disregard the confession if not voluntary. The identical question that we have before us was determined in that case. The opinion by Judge Morrow also clearly sets out the rule as to inducements relied upon by a defendant when made by the injured party. See also Vol. 7 A.L.R. p. 434 where the rule is stated, “where a servant is charged with an offense against the property of his employer, the employer is ‘a person in authority,’ within the rule that a confession induced by a promise of immunity from such a person is inadmissible.” In concluding that the statements or promises made by Charles Jackson were likely to cause appellant to speak untruthfully, we point out that appellant had at least two prior convictions on his record and would, it seems, be inclined to admit a crime he had not committed which would not be prosecuted, rather than risk the loss of his freedom for life if he were prosecuted. Also, in this regard, appellant’s job was also in jeopardy had he not admitted the theft, whereas he had reason to believe there was no danger in admitting it. It should also be pointed out that besides being appellant’s employer, the record reflects that Charles Jackson was also a minister which would further lead appellant to rely on the promises made.

It appears that the confession may not have been admissible as a matter of law as it is undisputed that the promises were made. See McHenry v. State, 163 Tex.Cr.R. 436, 293 S.W.2d 773, and Williams v. State, 164 Tex.Cr.R. 347, 298 S.W.2d 590, 355 U.S. 850, 78 S.Ct. 65, 2 L.Ed.2d 52. However, we are not called upon to pass on that question as no objection was made when the confession was received into evidence. We do conclude though that the jury should have had an opportuntiy to pass on the question. Jordan v. State, 163 Tex.Cr.R. 287, 290 S.W.2d 666. Roseburough v. State, 158 Tex.Cr.R. 593, 258 S.W.2d 332.

The judgment is reversed and the cause remanded.

ON STATE’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

The state contends that the court did not err in refusing the requested charge because the evidence did not raise the issue, there being no testimony in the record to the effect that the promise made by Charles Jackson “was operating on the mind of the defendant at the time the confession was made and the defendant was induced thereby to make the confession.”

We quote from the testimony of the witness Charles Louis Jackson:

“Q. Well, when you searched around the building in the vacant lot, did you find the tires? A. No, I didn’t.
“Q. Did you then come back to this Defendant Allen Fisher, Jr. and ask him about the tires? A. Yes, sir, I did.
“Q. And what was his reply to you at that time?
“A. He told me that he didn’t take the tires.
“Q. What did you then do?
“A. Well, I told him that I was going to call the police and have them pick him up.
“I told him that if he had the tires I would wish that he would give them to me, or tell me where they were.
“I told him that I would even pay half of the tires and he would pay half, if he would just tell me that he got the tires.
“Q. Did he still deny taking them?
“A. He denied that he had the tires.
“Q. Did you then call the police ?
“A. Yes, I called the police.
“Q. Subsequent to your calling the police, did you go back and talk to this Defendant again?
“A. Yes, I went back and talked to him.
“Q. Did he say anything to you at that time about taking the tires ?
“A. Well, after I had questioned him over a period of time, about fifteen or twenty minutes — I wasn’t questioning him, I was just telling him some things about how good I had been to him, and that I was trying to help him make it, and I would help him any way that I could, so he just broke down and told me that he had taken the tires."

We remain convinced that the requested charge or one of similar import should have been given and the jury allowed to pass upon the question of whether or not the confession was induced by the promise made by his employer.

The state’s motion for rehearing is overruled.


author: MORRISON, Judge WOODLEY, Presiding Judge (dissenting).

text:
    Telesforo DE LA GARZA, Appellant, v. The STATE of Texas, Appellee.
    No. 36939.
    Court of Criminal Appeals of Texas.
    May 20, 1964.
    Rehearing Denied June 27, 1964.
    Longoria & Evins, Edinburg, for appellant.
    R. L. Lattimore, Dist. Atty., Oscar B. Mclnnis, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge

The offense is the possession of marihuana, the punishment, two years.

Appellant’s written confession made to Beatrice Rodriguez recites that he left his home in Edinburg on the day in question in company with Velasquez, Corpus, Car-dona, Uribe and Humberto Garza in Velasquez’ automobile headed for a dance at Pharr, that enroute they stopped on the side of the road and that either Corpus, Humberto Garza or Uribe, who were seated in the back seat, handed him a marihuana cigarette. It continues, “I guess that two or three marihuana cigarettes were lighted while we were there parked, all of us smoked the cigarettes, passing them around, we smoked two or three cigarettes, they were marihuana cigarettes”, and that he knew that they were marihuana because he had smoked it before. The confession further recites that following the dance the same automobile occupied by the same persons, who were then on their way home, plus Oscar Mares, who was shown to be a juvenile, was stop-péd by thé police, and its occupants were searched, but that the officers found no marihuana about appellant’s person.

Police officers of the city of Pharr testified that they stopped the automobile as it left the dance because “the driver couldn’t control the car straight”, and as Velasquez, who was the driver, got out they observed him attempt to place a cigarette box under the front seat. The box was shown to contain some marihuana, but predominantly marihuana seeds, and some gummed cigarette papers. A few leaves and stems of marihuana and particles and seeds thereof were recovered from the clothing of two of the occupants of the automobile, but none from appellant.

On cross examination, appellant admitted that he remembered that the confession which he had made to Beatrice Rodriguez, the secretary to the Probation Officer, contained the recitation that all the occupants of the automobile had smoked the two or three marihuana cigarettes while they were parked and that he had signed the same, but that such was not true, and, in fact, he had only taken one puff off one cigarette and handed it back when he discovered that it contained marihuana.

Appellant’s principal contention on appeal is that the court erred in refusing to require the State to elect whether they would rely for conviction upon the smoking incident covered in appellant’s confession or the incident which occurred when the officers made the arrest. We are not impressed with the seriousness of this contention because it would appear that both incidents were part of the same entire transaction in which appellant acted as a principal throughout. The same automobile, six of the same occupants and the same evening and venture were involved.

The real question as we see it, is whether or not the possession of marihuana by Velasquez and the other two occupants of the automobile at the time of their arrest constituted sufficient corroboration of appellant’s confession. Particles of marihuana were found on the person of Corpus and Humberto Garza at the time of their arrest, and, according to appellant’s confession, they were seated in the rear seat of the automobile at the time someone from the rear handed him a marihuana cigarette. This, together with the other facts and circumstances in the case, we have concluded constituted sufficient corroboration of appellant’s confession that he possessed the marihuana which he consumed by smoking, and that he was a principal to the entire transaction which terminated with the finding of the remnants of the makings of marihuana cigarettes in the possession of his companions. See Kincaid v. State, 131 Tex.Cr.R. 101, 97 S.W.2d 175, Williams v. State, 156 Tex.Cr.R. 636, 245 S.W.2d 709, and Fancher v. State, 167 Tex.Cr.R. 269, 319 S.W.2d 707.

Clearly the court did not err in admitting the marihuana taken from the automobile and from the person of appellant’s companions.

No written objection to the charge or requested charges appears in the record, as required by the holdings of this Court in Gonzalez v. State, 164 Tex.Cr.R. 64, 297 S.W.2d 144, Cedillo v. State, 165 Tex.Cr.R. 371, 307 S.W.2d 267, and Gant v. State, 168 Tex.Cr.R. 448, 328 S.W.2d 768, nor do we find any ruling of the court on the oral objections made. Hence, no reversible error is reflected. Cox v. State, Tex.Cr.App., 368 S.W.2d 600.

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

WOODLEY, Presiding Judge (dissenting).

The state’s evidence shows that marihuana was found in an automobile driven by one Velasquez shortly after midnight. The appellant was a back seat passenger in the car and he and his companions had just left a dance.

The' state introduced in evidence the voluntary statement of the appellant in which he confessed to having smoked a marihuana cigarette on the way to the dance some four hours earlier.

The court’s charge authorized conviction of the appellant as a principal in the unlawful possession of the marihuana found in the car.

I can not agree to the affirmance of the conviction for the temporary possession of the marihuana consumed by the appellant. Aside from his confession there is no evidence that any marihuana was smoked or consumed, and the confession shows only the possession incident to smoking marihuana handed to him by another occupant of the car.

I would also direct attention to the rule that an election is required if the circum-stasices are such that a conviction of the defendant can he had for an act of his own or for an act of another to which he was a principal. See 42 Tex.Jur. p. 160, Sec. 119.


text:
    Alfred CASTRO, Appellant, v. The STATE of Texas, Appellee.
    No. 36930.
    Court of Criminal Appeals of Texas.
    May 27, 1964.
    Rehearing Denied June 27, 1964.
    Sam Harrison, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., R. Emmett Cater, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 1352, Vernon’s Ann.P.C., for knowingly causing cattle to go within the enclosed lands of another; the punishment, thirty days in jail and a fine of $100.

No statement of facts of the evidence adduced upon the trial accompanies the record, in the absence of which we are are unable to pass upon the question of the sufficiency of the evidence to support the conviction. Salyer v. State, Tex.Cr.App., 316 S.W.2d 420.

We have examined the formal bill of exception, filed by appellant, which complains of the court’s failure to rule on his motion in arrest of judgment in which he contends that the court was without jurisdiction to determine the issue of title to land, and find no reversible error therein. As qualified by the court, the bill shows a lack of due diligence on the part of appellant and his counsel in securing a ruling by the court on the motion.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Cecil KING, Appellant, v. The STATE of Texas, Appellee.
    No. 36791.
    Court of Criminal Appeals of Texas.
    June 17, 1964.
    Robert D. Peterson, Reagan & Welch, by Jack Welch, Marlin, for appellant.
    Thos. Bartlett, Jr., County Atty., Marlin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted of murder and given a term of twenty-five (25) years in the state penitentiary.

It has been made known to this court by proper affidavit that appellant died on or about May 12, 1964, after having perfected his appeal. The death of the appellant deprives this court of jurisdiction of the appeal.

Therefore our prior opinion in this cause is withdrawn and the appeal abated.


text:
    Henry CHAMBERS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 37066.
    Court of Criminal Appeals of Texas.
    June 17, 1964.

      G. Ray Lee, James W. Lee, III, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. F. Alexander, George Milner, Jim Miller and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of marijuana; the punishment, 7 years

No statement of facts showing the evidence adduced before the jury is found in the record and there are no formal bills of exception and no written objections relating to the court’s charge.

In his amended motion for new trial filed October 30, 1963, appellant complains of the overruling of his motion for mistrial, his complaint being that the trial judge amended his charge during the argument of appellant’s counsel and in connection therewith stated that counsel had misquoted the charge.

The record contains a statement of facts in a hearing on the amended motion held December 13, 1963, (which was more than 20 days after the amended motion was filed) and an order of the trial court dated January 3, 1964, refusing the amended motion.

The complaint regarding the amending of the charge and remarks of the court in connection with such amendment is not before us for review.

Appellant’s motion is not one of the motions included in or referred to in Art. 760e Vernon’s Ann.C.C.P. and a bill of exception was necessary. Thomas v. State, 171 Tex.Cr.R. 54, 344 S.W.2d 453.

Further, the amended motion for new trial was overruled by operation of law 20 days after it was filed, no action having been taken. Arts. 755 V.A.C.C.P.; Hart v. State, 171 Tex.Cr.R. 375, 350 S.W.2d 547.

If the matter is before us, we find no error in the court’s amending his charge in order to correctly state the law. Nowlin v. State, 76 Tex.Cr.R. 480, 175 S.W. 1070; Holt v. State, 39 Tex.Cr.R. 282, 45 S.W. 1016.

Upon the record before us and in the absence of the facts adduced before the jury, we are unable to agree with counsel’s contention that the remarks of the court were calculated to or did injure the rights of the appellant.

The judgment is affirmed.


text:
    Lee Andre DERAMEE, Appellant, v. The STATE of Texas, Appellee.
    No. 36400.
    Court of Criminal Appeals of Texas.
    June 3, 1964.

      Robert B. Hershey, Dallas, for appellant.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while license is suspended; the punishment, a fine of $150.-«0.

On a prior day in this term we affirmed appellant’s conviction. Deramee v. State, Tex.Cr.App., 372 S.W.2d 701. Since the rendition of such opinion and at the same term, we realized that we were in error in such affirmance and overruled the case against appellant. Adams v. State, Tex. Cr.App., 376 S.W.2d 832. Appellant now moves this Court to vacate our original judgment of conviction, recall our mandate and order the return of the fine which he has paid under our former judgment of af-firmance. Being a judgment at the present term, we have authority to do so and justice requires that we do no less.

Appellant’s motion for rehearing and to withdraw mandate is granted; the order affirming the conviction is set aside, and the judgment is now reversed and the prosecution under the present complaint and information is ordered dismissed.


text:
    Clara Smith DRISCOLL, Appellant, v. The STATE of Texas, Appellee.
    No. 37051.
    Court of Criminal Appeals of Texas.
    June 17, 1964.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $300.00.

No statement of facts accompanies the record on appeal. Appellant presents one formal bill of exception in which he complains of the action of the trial court in “permitting the result of a blood test to be introduced over the timely objection of the defendant, without proper predicate being laid by the State of Texas.” In the absence of a statement of facts, we are unable to pass upon the admission of testimony over the objection of appellant. Williams v. State, Tex.Cr.App., 378 S.W.2d 325, and Fletcher v. State, 162 Tex.Cr. R. 100, 282 S.W.2d 230.

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


text:
    Inez Perry GRAY, Appellant, v. The STATE of Texas, Appellee.
    No. 36970.
    Court of Criminal Appeals of Texas.
    May 20, 1964.
    Rehearing Denied. June 24, 1964.
    William F. Billings, Dallas, for appellant.
    Henry Wade, Dist. Atty., Howard Wein-berger, Don Koons and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Upon a trial before the court without a jury, the appellant was convicted for driving while intoxicated, and the court assessed her punishment at three days in jail and a fine of $125.

The evidence of the state sufficiently shows that appellant was intoxicated while driving an automobile upon a public street.

Testifying in her own behalf, the appellant admitted that she had had three or four drinks of Canadian Club between 6 p. m., and about 10 p. m., before she was stopped by an officer in the neighborhood of Ross, and Carroll while driving her automobile in Dallas and when asked, while testifying,, if she was intoxicated she replied “I didn’t think so.” She also testified that any weaving of her car was due to looking for street signs as she was trying to locate a particular street.

The sole contention urged for reversal is. that there is a fatal variance between the information and the proof, on the ground that the proof shows that the offense was. committed after the information had been filed.

The complaint and information were filed on June 4, 1962, alleging that an offense was committed on or about May 30, 1962.

In beginning the examination of Officer Michael, who arrested appellant for the offense here charged, the state’s attorney asked: “I would like to direct your attention to September 25th, 1962, that evening. Were you on Duty that evening ?” The witness answered: “Yes sir, I was.” Michael’s testimony does not refer to any other time or date, except that after stopping the car on Ross Avenue appellant was driving about 11:25 p. m., he radioed for assistance.

Officers Nichols and Varner testified that in responding to a radio call for assistance from Officer Michael, about 11:25 p. m., May 30, 1962, they found the appellant sitting in the front seat of Michael’s car on Ross Avenue. Officer Nichols further testified that when he saw the appellant on May 30 her eyes were watery and bloodshot, that she swayed while walking, and he smelled the odor of alcohol on her breath; and he expressed the opinion that she was intoxicated.

The testimony of the three officers and the appellant about what occurred after Nichols and Varner arrived at the scene of appellant’s arrest by Michael on Ross Avenue, does not vary materially except on matters bearing on whether she was intoxicated.

The court or jury trying the case are authorized to accept or reject any or all of the testimony of any witness. They may look to all the evidence in the case, that offered by the state as well as that offered by the appellant, in determining the facts and issues in the case. Cross v. State, 100 Tex.Cr.R. 88, 271 S.W. 621; Spears v. State, 103 Tex.Cr.R. 474, 281 S.W. 555; Hall v. State, 158 Tex.Cr.R. 243, 254 S.W.2d 523; Lopez v. State, Tex.Cr.App., 356 S.W.2d 674.

Estrada v. State, 88 Tex.Cr.R. 333, 226 S.W. 685, relied upon by appellant is not controlling here because from the opinion it appears that all the state’s evidence was that the offense occurred on a date different from that alleged, while here the court might believe all of Officer Michael’s testimony except as to the date and accept the date given by the other officers.

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

Opinion approved by the Court.


text:
    Ex parte James WILLIAMS, Jr.
    No. 36881.
    Court of Criminal Appeals of Texas.
    May 6, 1964.
    Rehearing Denied June 27, 1964.

      Frank Y. Hill, Jr., San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

By writ of habeas corpus filed in the 175th District Court of Bexar County, the appellant sought his final discharge from an accusation of passing a forged instrument, on the ground that he had been deprived of his constitutionally guaranteed right to a speedy trial.

From an order refusing to discharge him after a hearing, the appellant gave notice of appeal.

The evidence at the beginning of the hearing revealed that appellant was held under an indictment returned on August 14, 1963. There was no activity by either side in this cause until January 13, 1964, when it was called for trial, and on motion of the state due to the absence of a witness, it was reset for February 10, and on that day it was again reset for February 12, for the same reason. On February 12, because of the absence of the same witness, the state sought another continuance which was denied. The state immediately filed a motion to dismiss the indictment, which was granted, and an order of dismissal was entered February 12. At this time appellant requested the trial court to discharge him but the request was refused.

On application of appellant, a writ of habeas corpus was issued on February 12, returnable at 3 p. m., that day, at which time a hearing began on the writ, but the hearing was recessed from time to time on request of the state until February 21, when the court denied appellant any relief on the writ.

The evidence further shows that, on February 19, before the conclusion of the hearing on the writ, an indictment was returned by the Bexar County grand jury into the 144th District Court, charging the same transaction against appellant as charged in the case dismissed on February 12, and he was taken into custody by a warrant based on the second indictment.

The dismissal of an indictment does not prevent the grand jury from returning a subsequent indictment charging the same transaction. Ex parte Drane, 80 Tex.Cr.R. 543, 191 S.W. 1156; Whitehead v. State, 162 Tex.Cr.R. 507, 286 S.W.2d 947.

It appears that, on February 19, the appellant was taken into custody under an indictment returned by a legal grand jury into a court of competent jurisdiction, charging him with the offense of passing a forged instrument; and that the indictment is regular on its face, and is based upon a valid law under which such an offense could be charged. 27 Tex.Jur.2d 678, Sec. 15; Ex parte Drane, supra; Ex parte McKay, 82 Tex.Cr.R. 221, 199 S.W. 637.

From the record it appears that the appellant is legally restrained by virtue of an arrest warrant based on a valid indictment. The contention presented by the appellant may be raised when he is called upon to answer the new indictment.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Alfred Don RICHARDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 36979.
    Court of Criminal Appeals of Texas.
    June 10, 1964.
    Marvin O. Teague of Teague & Carlisle, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Edward N. Shaw, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery with two prior convictions for felonies alleged for enhancement; the punishment, life.

In view of "our disposition of this case, a recitation of the facts is not necessary other than to observe that the defense of alibi was raised by appellant’s own and other testimony. During the cross examination of the police officer Mackay, the following occurred:

“Q. Now, after you took the defendant to the police station, Officer, did you have anything further to do with the case?
“A. Yes, sir. I questioned him in the case, and he readily admitted that he was at this place of business at the time of this offense.
“MR. TEAGUE: I object.
“THE COURT: Objection sustained.
“MR. TEAGUE: I ask that the officer’s statement be stricken from the record.
“THE COURT: Of course, you asked the question if he had done anything else, but notwithstanding that I sustain the objection.”

The unresponsive answer of the witness, who was a detective of sixteen years experience, in which he related an oral confession made by the accused while under arrest in violation of Article 727 Vernon’s Ann.C.C.P., which he knew or should have known was inadmissible, calls for a reversal of this conviction. Gremmel v. State, 169 Tex.Cr.R. 508, 335 S.W.2d 614; Sharp v. State, Tex.Cr.App., 217 S.W.2d 1017; and Weaver v. State, 146 Tex.Cr.R. 387, 175 S.W.2d 601.

Attention is also called to the fact that the trial court failed to instruct the jury not to consider the same when appellant’s counsel asked that the officer’s statement be stricken from the record. When the court did not grant such request, appellant had received an adverse ruling which preserved the error.

The judgment is reversed and the cause remanded.


text:
    Lee Otis JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 36959.
    Court of Criminal Appeals of Texas.
    May 20, 1964.
    Rehearing Denied June 24, 1964.
    Jack D. Bodiford, Will Gray, Houston, for appellant
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough, David Ball, Jr., and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appellant Lee Otis Johnson was jointly indicted with Kenneth Craig Johnson for theft of an automobile of the value of over $50 belonging to Ellis Bob Foy.

Severance was granted and, upon a trial on a plea of not guilty, the jury found the appellant guilty and assessed his punishment at two years in the penitentiary.

Ellis Bob Foy testified that on January 3, 1963, his 1959 Bonneville Pontiac automobile, which was worth more than $50, was parked in his driveway. He parked it there at 3:30 P.M. and at 1 o’clock that night he discovered that it was gone.

The owner testified that he did not know the appellant and did not give him or anyone else permission to take his car; that he reported the car stolen and recovered it the next day.

Menthea Ann Terry testified that the appellant and Kenneth Craig Johnson drove up to her house at 12:30 A.M. and she got in the back seat of a brown 1959 Bonneville Pontiac. Kenneth Johnson was driving and the appellant was sitting beside him. The witness testified that she had known the appellant and Kenneth Johnson for about six months and had never seen them in the 1959 Pontiac before.

Menthea Ann Terry further testified that they drove to a Crowflite filling' station on Almeda between 1 and 2 A.M. and when the attendant came to the car and leaned over to ask what they wanted, Kenneth Johnson pulled a pistol which belonged to her and said “Give me your money, man”; that the appellant reached his hand out and told the attendant to put the change in his hand, which he did; that Kenneth Johnson took the money and told the attendant to walk over toward some tires and when he did, Kenneth Johnson drove off; that a cab followed them several blocks and when it got close the three of them abandoned the Pontiac.

Alexander Roberts, taxi driver, testified that at the Crowflite Station he saw the attendant standing very close to a brown 1959 Pontiac; that the Pontiac left and the attendant, who had backed away, said he was just robbed and asked him to follow the car and get the number; that he followed the Pontiac which, after a series of turns, was parked and its occupants got out and walked toward a building; that he notified his cab dispatcher by radio and in a short time police arrived and he passed on to them what he knew; that he was unable to identify any of the occupants of the Pontiac.

Patrolman Joseph A. Gamino testified that he was in the area and arrested Kenneth Craig Johnson who “was hiding between a wall and an air conditioner unit beside a house * *

The state having waived any objection to his testifying, Kenneth Craig Johnson was called as a witness for the appellant. He testified that he was not related to the appellant; that he was serving a term in the penitentiary for theft of the 1959 Pontiac belonging to Ellis Foy; that he pleaded guilty to such theft and that the appellant had nothing to do with it and was not with him when he took the automobile.

On cross-examination Kenneth Craig Johnson was shown his statement to the police made after his arrest in which he said that “Juicy” stole the car, and he testified that such statement was true. He testified that “Juicy” was not Lee Otis Johnson, the appellant.

Menthea Ann Terry, being recalled, testified that “Juicy” was the nickname of Lee Otis Johnson; that she had heard Kenneth Craig Johnson address him by the name “Juicy” and “that’s what he was called amongst the people that knew him.”

The court instructed the jury on the law of principals; submitted the case as one of circumstantial evidence, and properly instructed the jury that Menthea Ann Terry was an accomplice witness whose testimony required corroboration.

Any question as to the identification of the Pontiac as the automobile stolen from Ellis Bob Foy was removed by the testimony of the defense witness Kenneth Craig Johnson and the rebuttal testimony of the accomplice witness.

We find the evidence, viewed in the light most favorable to the jury’s verdict, sufficient to sustain the conviction.

The appellant objected to the testimony relating to the robbery of the filling station attendant, and to the failure of the court to limit such evidence in his charge to the jury.

We are in accord with the state’s position that the evidence relating to the robbery committed in the stolen car; the flight after the robbery, and the apprehension of one of the principals in the robbery and theft was admissible as res gestae. McCoy v. State, 144 Tex.Cr.R. 309, 162 S.W.2d 976, relied upon by the state, supports such holding.

In Houston v. State, 112 Tex.Cr.R. 261, 16 S.W.2d 119, cited and relied on by the appellant, Houston and his companion charged with robbery were arrested some two weeks after the robbery and the state was permitted to prove that an officer “found out” that the automobile found ut the time of the arrest was a stolen car.

In the absence of any showing as to when and where and by whom the automobile was stolen, if it was, this Court concluded that the theft of the car was not res gestae of the robbery.

The facts as to the time and place the offenses were committed and the fact that the appellant acted as a principal in the robbery are sufficient to distinguish McCoy v. State, supra, and the case before us from the Houston case.

The evidence being admissible as res gestae, no limiting charge was required. See 1 Branch’s Ann.P.C.2d 245, Sec. 211, and cases cited.

No reversible error appearing, the judgment is affirmed.


author: BELCHER, Commissioner. WOODLEY, Presiding Judge.

text:
    William H. DEAN, Appellant, v. The STATE of Texas, Appellee.
    No. 36629.
    Court of Criminal Appeals of Texas.
    March 18, 1964.
    Rehearing Denied May 6, 1964.
    Second Motion for Rehearing Denied June 10, 1964.
    Warren Burnett, Odessa, Luther E. Jones, Jr., Corpus Christi, on appeal only, for appellant.
    Timothy P. Woolston, Albuquerque, N. M., on motion for rehearing only, for appellant.
    Dee D. Miller, Dist. Atty., Patrick H. Mulloy, Jr., Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for theft from the person; the punishment, five years.

J. A. Williams sold his business on March 31 for a substantial sum of money. Thereafter on April 3, about 11:15 p. m., be went to the Avalon Club. Shortly after Williams arrived, Bobby Manning approached and invited him to join him and his wife, Billie Manning, and June Clark at their table. They had several drinks and danced. Williams and June accepted an invitation to the Manning home for bacon and eggs. Soon after their arrival they began playing poker, but never ate. Appellant was by the side of Manning as they played three or four poker hands, which Williams won. Williams did not know appellant nor were they introduced. When only Manning and June were left, on the next poker hand, Williams saw appellant pass some money to Manning as the betting rose. While Williams was betting June’s poker hand he saw one card dealt from the bottom to Manning, to whom he lost $250 or $300 on the hand. An argument and scuffle ensued, as Williams and June left. Williams had exhibited a roll of money during the game. Appellant was present during this time.

Williams took June home, and they were followed by Bobby Manning. After Williams left, Bobby talked with June at her house, and they went to the Ramada Inn Coffee Shop, arriving about 2:30 a. m. Bobby asked June to telephone Williams to come “Because he wanted to take the man’s money.” Then they went to the Holiday Inn and Manning rented two connecting rooms, Nos. 216-217, and registered under a fictitious name, address, and automobile license number. They dialed Williams’ telephone number four or five times without success. At June’s request Bobby returned her to the Ramada and from there she went home in a cab.

About 9 o’clock that same morning, April 4, in response to an invitation by telephone from Billie Manning, Williams went to room 216 at the Holiday Motel. According to Williams, he had $9,280 in cash on his person when he entered room 216. Out of sight, in the bathroom, Billie mixed Williams a drink from a pint of Old Crow and in a brief time mixed another drink for him, and shortly thereafter Williams passed out.

Early in the afternoon of the same day, while June was in a room at the Ramada, the appellant and Bobby came in together and left together. Bobby soon returned, alone, and told June that Billie (his wife) had contacted Williams that morning and had taken $400 from him. Later, the same day, Bobby told June that he thought more money was involved and that appellant had gone back to the room to get Williams. Bobby also gave her some money which she thought was to be used to pay for the room at the Holiday Inn.

When Williams awoke that afternoon, he was lying on the bed in room 216 with his trousers down around his ankles and the appellant was feeling around the band of his (Williams’) trousers and searching his pockets, but Williams was not in physical condition to do anything about it. Williams did not know the appellant but recognized him as the man he had seen at the Manning’s just after midnight. Appellant gave Williams a drink of water and Williams passed out again. About 4 p. m., the appellant stopped the car he was driving at the office of the Holiday Inn, said he had an intoxicated man in the car, used the telephone, and drove away with the man slumped over in the car. The next thing Williams remembered it was about sundown on the same day, and he and appellant were riding around in Williams’ car, with the appellant driving. About dark, they parked near the Manning house. Williams got out, his legs buckled, and he sat down in some water. While this was occurring, the appellant cut off the car ignition and lights, and ran from the scene.

Later, on searching his car, Williams found a capsule and an almost empty pint bottle of Old Crow, which he delivered to the police. A chemist testified that this capsule contained a barbiturate known as seconal, and expressed the opinion that a person could be rendered unconscious by drinking alcohol mixed with two of such capsules; and that one capsule taken while a person was quiet would cause him to sleep from four to six hours.

Williams testified that, he had $9,280 in money taken from his person in the motel room without his' knowledge and without his consent.

An employee of Holiday Inn identified the appellant as the same person who paid a bill on April 9, in cash, and testified that appellant said at the time he was paying the bill that he thought it had already been paid because he had left the money therefor with a woman.

The appellant did not testify, but offered testimony that Williams had reported the loss of different sums of money less than $9,280; that Williams also indicated or said that persons other than appellant got his money; and, further, that this case would not go to trial as they would pay off, and he would end up with appellant’s elevators.

Johnny Austin, a porter at the Holiday Inn, while testifying, identified both the appellant and Williams, who was brought into the court room, as the same and only persons he saw in rooms 216-217 when he responded to a call about 3 p. m., April 4, and was asked to make coffee. He further testified that during this time Williams asked him “where is my money?” and that the appellant and Williams later came by the office in a car.

By brief and oral argument the appellant insists that the evidence is insufficient to sustain the conviction, and that the verdict does not support the judgment.

From a consideration of all the facts and circumstances as shown in the summary of the evidence, it is concluded that the evidence is sufficient to sustain the conviction.

The charge, among other requirements, authorized a conviction if the money was fraudulently taken from the person and possession of Williams, without his knowledge or consent, with the intention to deprive him of its value, and to appropriate it to the use and benefit of the appellant.

In his next contention, appellant insists-that the charge requiring a finding of only one of these elements to convict rendered the verdict insufficient to support the judgment of conviction, the indictment having alleged that the taking of the money was without the consent and without the knowledge of Williams.

There were no objections to the charge of the court and no requested charges.

To constitute the offense of theft from the person, the court charged the jury that as provided by statute the following was necessary:

“(1) The theft must be from the person; it is not sufficient that the property be merely in the presence of the person from whom it it is taken.
“(2) The theft must be committed without the knowledge of the person from whom the property is taken * *

When the charge is construed as a whole, along with the provisions of the statute, the indictment and the evidence, there is no showing of injury to the rights of the appellant. Robinson v. State, Tex.Cr.App., 39 S.W. 107.

The judgment is affirmed.

Opinion approved by the Court

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

In his motion for rehearing the appellant urges that the charge is fundamentally erroneous in that it authorized conviction without the essential finding that the money was taken both without the knowledge of Williams and without Williams’ consent.

The court, after charging the jury in terms of the statute that the theft must be committed without the knowledge of the person from whom the property is taken, instructed the jury that if they found that the defendant did fraudulently take from the person and possession of J. A. Williams, “without his knowledge or consent,” the property described in the indictment with intent to deprive the owner of its value and to appropriate it to his own use and benefit they would convict.

This is not a case where the disjunctive “or” was used when the conjunctive “and” would have been proper.

A better form would have been to require the jury to find that the money was taken from the person of Williams “without lixs knowledge and without his consent.”

The jury having been instructed in the language of the statute that it was necessary to constitute theft from the person that the theft be committed without the knowledge of the person from whom the property is taken, the jury could hardly have been misled by the use of “knowledge ■or consent” into believing that they need not find that the property was taken without the knowledge of Williams.

Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785, does not support appellant’s contention that no objection to the charge was required. In that case the charge was fundamentally erroneous in that the offense alleged was the possession of beer in a dry area for the purpose of sale, and conviction was authorized without the jury being required to find that the defendant possessed beer for the purpose of sale.

In Holloway v. State, 168 Tex.Cr.R. 264, 324 S.W.2d 886, there was an issue of fact as to whether the assault was made with a knife, as alleged in the indictment, or with a can opener, and it could not be ascertained from the verdict, in light of the court’s charge, which instrument the jury found to be a deadly weapon.

In the case before us there was no evidence raising the issue that the money, if taken from the person of Williams, was taken with his consent, though without his knowledge, or was taken with his knowledge, though without his consent.

Holloway v. State is further distinguished by the fact that Holloway excepted to the charge and pointed out that the jury was not required to find that a knife was used in making the assault.

We overrule the contention raised by the appellant that conviction herein operates to deprive him of his liberty in violation of the due process clause. U. S. Constitution, 14th Amendment.

Appellant’s motion for rehearing is overruled. '


author: DICE, Commissioner. McDonald, judge.

text:
    Dr. Earl F. TRITT, Appellant, v. The STATE of Texas, Appellee.
    No. 36719.
    Court of Criminal Appeals of Texas.
    April 8, 1964.
    Rehearing Denied May 27, 1964.
    Second Motion for Rehearing Denied June 24, 1964.

      Fred A. Semaan, San Antonio, Charles W. Tessmer and Emmett Colvin, Jr., Dallas (on appeal only), for appellant.
    James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant, on January 14, 1963, entered a plea of nolo contendere to an indictment for abortion and was assessed a term of four years in the penitentiary.

On February 14, 1963, the court ordered the imposition of sentence suspended and placed appellant upon probation upon certain terms and conditions, among them being that he “1. Neither commit nor be convicted of any offense against the laws of the State of Texas, any other State or of the United States * *

On September 25, 1963, a motion was filed by the district attorney to revoke the probation, in which it was alleged (1) that on or about the 18th day of September, 1963, the appellant did with the consent of Emma Solis, a pregnant woman, produce an abortion of the said Emma Solis, and (2) on or about the 18th day of September, 1963, the appellant did attempt to produce an abortion on Emma Solis, a pregnant woman, in violation of the penal laws of the State of Texas and in violation of the conditions of said probation.

After notice and hearing, án order was entered by the court revoking the probation upon a finding that the evidence adduced sustained the allegation in the state’s motion to revoke in that on or about the 18th day of September, 1963, the appellant did violate the terms and conditions of his probation by committing an offense against the penal laws of this state. Sentence was thereupon pronounced upon appellant.

From such order and sentence, appellant prosecutes this appeal.

At the hearing, the witness Emma Solis testified that in August, 1963, she went to a physician in San Antonio and had a pregnancy test made. Later, in September, she went to appellant’s office and told him she had missed a period, that she had two girls, and was in the process of getting a divorce and did not want to be pregnant. Appellant stated that he would help her, gave her a shot, and told her to come back. In about a week she returned and appellant gave her some more shots and told her to return the next day. When she returned the next day, appellant gave her more shots. She was then placed on a table and put to sleep and while “in the middle of being drowsy I felt something real cold * * * In my vagina * * * Something like steel,” and when she woke up she was bleeding from her vagina. She stated that she then left and returned that evening, when appellant gave her some pills for pain. The next day she returned to appellant’s office and he told her she needed an “operation right away.” She then sent for her brother, who came and took her to Dr. Carl Goeth, who, after examining her, sent her to the Baptist Memorial Hospital, where she was operated upon. The witness stated that she paid appellant $50 for his services and that when she left his office the last time appellant told her not to tell anyone she had been to him and if she did she would be in trouble.

Dr. Carl F. Goeth testified that he saw Mrs. Solis at his office on September 19, at which time she was complaining of severe abdominal pain, and after doing a pelvic and abdominal examination he sent her to a hospital and performed an operation upon her. Dr. Goeth testified that in the examination and operation he found dark blood passing from the mouth of the womb, which was open more than in a normal state. The opening was bruised and part of the opening scraped off. Upon opening the abdominal cavity a perforation of the uterus and a two-and-one-half-inch tear in the intestine were found. Dr. Goeth expressed his opinion that the cause of her condition was an improperly performed abortion which resulted in infection and peritonitis. He also stated that the patient’s uterus was large enough to be a pregnant uterus and that on the right ovary there was a corpus luteum cyst, which is normal in early pregnancy. It was further shown that the serum pregnancy test or frog test that was made of Mrs. Solis’s blood was positive, which was indicative of her pregnancy at the time she went to see appellant.

Appellant did not testify at the hearing but called, among other witnesses, a nurse in his employ who testified that on the occasion of Mrs. Solis’s last visit to appellant’s office she stated that she had not done anything to herself but that she had been to somebody on Buena Vista Street.

Mrs. Solis, called as a witness in rebuttal, denied that she had been to Buena Vista Street and had something done to her and denied having made any such statement at appellant’s office.

We find the evidence sufficient to support the allegations in the state’s motion that appellant, during the period of his probation, did perform an abortion upon Mrs. Solis, thereby violating the penal laws of this state and the terms of probation.

In revoking the probation, the court did not abuse his discretion.

The judgment is affirmed.

Opinion approved by the court.

On Appellant’s Motion for Rehearing

McDonald, judge.

In his motion for rehearing the appellant presents the contention that abortion is an offense “against morals, decency and chastity” and that such offenses being excepted in the Adult Probation and Parole Law (Art. 781b, Sec. 3, Vernon’s Ann.C.C. P.), the trial court was without authority to grant him probation.

The appellant having been granted probation and having violated the conditions thereof is in no position to complain that the trial court abused his discretion in revoking the order of probation and imposing sentence upon the judgment previously entered in which his punishment was assessed at 4 years in the penitentiary. Popham v. State, 154 Tex.Cr.R. 529, 228 S.W.2d 857; Hartley v. State, 169 Tex.Cr.R. 341, 334 S.W.2d 287.

Remaining convinced that the trial judge did not abuse • his discretion in revoking probation, appellant’s motion for rehearing is overruled.


text:
    Johnny PEDROSO, Appellant, v. The STATE of Texas, Appellee.
    No. 36923.
    Court of Criminal Appeals of Texas.
    June 3, 1964.
    Rehearing Denied June 24, 1964.
    John Shirley, Roland Matthews, Texas City, for appellant.
    Jules Damiani, Jr., Dist. Atty., Ralph J. Bernsen, Sr., Asst. Dist. Atty., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is aggravated assault by an adult male upon a female; the punishment, a fine of $50.00.

The variance between the allegations of the complaint and the information is shown by supplemental transcript to have been a clerical error in the preparation of the transcript. Our original opinion is withdrawn.

Trial was before the court and the evidence is before us in narrative form.

We need not pass upon the serious question of the sufficiency of the evidence to show that the prosecutrix was injured or that the incident caused her a sense of shame, constraint or some disagreeable-emotion of the mind because we are unable to find in the statement of facts any evidence to sustain the allegation of the complaint and information that the appellant was an adult male.

Without such proof, the evidence is insufficient to sustain the conviction. 4 Branch’s Ann.P.C.2d, Sec. 1736.

The State’s motion for rehearing is overruled and the judgment is reversed.


text:
    Ex parte Luther Earl DAVIS.
    No. 37015.
    Court of Criminal Appeals of Texas.
    June 10, 1964.

      Luther Earl Davis, in pro. per.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Petitioner, an inmate of the Texas Department of Corrections, made application to this Court for writ of habeas corpus alleging that he was not represented by counsel at the time of his trial for burglary in 1945, when he was found guilty and sentenced to life imprisonment as an habitual offender. He further alleges that he was without funds to hire counsel and that he requested that counsel be appointed to represent him, but that such request was by the court refused.

Petitioner appealed his conviction to this Court and the judgment of the trial court was affirmed in Davis v. State, 148 Tex.Cr.R. 452, 188 S.W.2d 177. In this opinion it was observed that petitioner was not represented by counsel and that he personally attempted to examine the witnesses. After the receipt of this application, the judge of the trial court where petitioner was convicted, in answer to an inquiry from this Court, reaffirmed the fact that petitioner was tried without the benefit of counsel. The record also reflects that petitioner was financially unable to employ counsel for his defense. Since the rendition of our opinion in petitioner’s case, a far reaching change in the law has been brought about by several opinions of the Supreme Court of the United States construing the constitutional rights of an indigent accused to court appointed counsel.

There is no affirmative showing that petitioner requested that counsel be appointed to represent him, however, under the holding of the United States Supreme Court in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, this would not constitute a waiver of his constitutional right to be so represented, and there is nothing in the record to show that the petitioner competently and intelligently waived such right. Viewed in the light of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, petitioner’s 1945 conviction is void. See also Ex parte Hope, Tex.Cr.App., 374 S.W.2d 441; Ex parte Parsons, Tex.Cr.App., 374 S.W.2d 442; Ex parte Bushnell, Tex.Cr.App., 375 S.W.2d 720; and Ex parte Hamilton, Tex.Cr.App., 376 S.W.2d 575.

It is therefore ordered that petitioner be released from his present custody and delivered to the custody of the Sheriff of Smith County to stand trial under the original indictment in Cause No. 13,951.


author: ARCHER, Chief Justice.

text:
    Edward G. MERCHANT, dba Rox-Ex Exterminating Co., Appellants, v. The STATE of Texas et al., Appellees.
    No. 11206.
    Court of Civil Appeals of Texas. Austin.
    May 13, 1964.
    Rehearing Denied June 10, 1964.
    McCulloch, Ray, Trotti & Hemphill, Sam Dawkins, Jr., Dallas, for appellants.
    Waggoner' Carr, Atty. Gen., J. H. Broad-hurst, Ernest Fortenberry, Asst. Attys. Gen., Austin, for appellees.
   ARCHER, Chief Justice.

This is a suit brought by the State of Texas on behalf of the Texas Employment Commission for collection of unemployment compensation taxes alleged owed hy appellants on certain persons who were doing insect extermination work for appellants. By order of the District Court, the following causes were consolidated: No. 132,540, State of Texas vs. Edward G. Merchant, d/b/a Rox-Ex Exterminating Co.; No. 132,541, State of Texas vs. E. G. Merchant, d/b/a Rox-Ex Exterminating Co.; and No. 132,554, State of Texas vs. Edward G. Merchant and Mrs. Hilda Pringle, Administratrix of the Estate of Herbert Pringle. The sole question is whether these persons are independent contractors, thus excluded from coverage by Article 5221b — 17, Vernon’s Ann.Civil Statutes of Texas, or whether they are regular employees upon whom appellants should have remitted unemployment taxes pursuant to Article 5221b-12(b), Civil Statutes of Texas.

Judgment was rendered for the State of Texas on November 19, 1963, in the sum of $2,361.96 (including penalties and interest) from which judgment appellants have duly perfected this appeal.

The appeal is predicated on two points and are that the Trial Court erred in failing to hold that appellants were not liable for unemployment compensation taxes on persons doing extermination work, and in failing to hold that persons doing extermination work for appellants were not engaged in employment subject to unemployment taxes.

Article 5221b-17(g) (1), V.A.C.S., reads:

“ 'Employment’ means any service performed * * * for wages or under any contract of hire, written or oral, express or implied, provided that any services performed by an individual for wages shall be deemed to be employment subject to this Act unless and until it is shown to the satisfaction of the Commission that such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact.”

The only witness testifying in the trial was Edward G. Merchant, who was either a partner or sole proprietor in each of the companies.

As may be noted the statute, Art. 5221b-17(g) (1) places the burden of proof on the employer to show that the services in question were not employment, once it is shown that the services were performed for any type of remuneration.

In his testimony Mr. Merchant recited the method of operation of his business and the work done, that a bulletin board or a book is kept on which the name, address and location in the city of all persons calling for service, whether it is insect, roofing, termite, or lawn, and any other information is written, and set out the pay schedule.

The witness testified that he did not withhold social security or income taxes from the pay of the persons who do the work. In the insect department the pay is $1.00 per room, $15.00 per day to the subcontractors and the inspectors in the termite department. Those who work on lawn and tree spraying are paid 20% of the job cost.

On cross examination the witness testified that the person who made inspection of premises is paid $15.00 or $20.00 per day; that all solicitation was done by advertising; that each contractor comes to the place of business and is given a vehicle completely equipped to perform the services. The vehicles or trucks furnished are owned by the employer and carry the name of the concern painted thereon; that the witness fixed the prices to be charged based on so much a square foot, or so many dollars per room ; that the company furnished insurance and bonds necessary to protect all clients and the general public, but did not carry Workmen’s Compensation Insurance.

The witness testified his companies fux-nished a billing and collecting service, and some financing of the work; that all booking is done at the office, and any profit or loss from the business belonged to the witness.

We believe that the persons who performed the various services for appellants’1 pest control company were not independent contractors, but were employees.

There can be no question but that two of the three classes of workmen, that is, inspectors and termite exterminators, who received fixed salaries, as stated by the witness Merchant, were employees. Mr. Merchant made all basic decisions, what equipment would be used, the chemicals to be applied, the prices to be charged, what advertising would be done, what insurance would be carried, and how any deferred payments would be carried. The insect exterminators were paid $1.00 per room and the same degree of control as other workmen was exercised.

Each of the persons engaged in the work entered into a written contract with Mr. Merchant, setting out what Merchant would do and furnish, which as stated, included all equipment for spraying etc., automotive transportation, insurance to protect all clients and the general public, billing and collecting service, an up-to-date list of past and prospective clients, and a course of training and instruction sufficient to qualify the persons to perform any and all services.

The “second party,” the persons doing the work bound himself to diligently pursue the business of pest and termite extermination in accordance with instructions furnished by Merchant, and the compensation was fixed. The second party agreed not to engage in any way in the business of pest control anywhere in Tarrant County within a period of two years, etc.

As stated in Gulfcraft, Inc. v. Henderson, Tex.Civ.App., 300 S.W.2d 768, no writ history :

“The fact that an employer entrusts to an employee the exercise of wide discretion with respect to the details of the employment does not change the legal relationship between them.”

30 Tex.Jur.2d, Independent Contractors, Secs. 8 and 9, pages 486-89.

The judgment of the Trial Court is affirmed.

Affirmed.


author: BATEMAN, Justice.

text:
    William FLATT et al., Appellants, v. Joanne HILL, Appellee.
    No. 16342.
    Court of Civil Appeals of Texas. Dallas.
    May 8, 1964.
    Rehearing Denied May 29, 1964.

      G. H. Kelsoe, Jr., Fred Bruner and Clifford S. Dillard, Dallas, for appellants.
    Hartson, Waters & Bonnett, Gerald T. Waters, Dallas, for appellee.
   BATEMAN, Justice.

Joanne Hill brought this suit for damages against William and Adis Flatt, who operated a beauty school and in connection therewith furnished beauty services, rendered by the students, to members of the public. Appellee claimed, and the jury found, that while having her hair shampooed and “set” by one of appellants’ student operators she was injured by being struck in the right eye by a comb. The jury also answered a}l special issues on negligence, contributory negligence, unavoidable accident and assumed risk favorably to appellee and found her damages to be $1,500. Appellants assign four points of error on appeal. We overrule all of them.

The first complains that the court erroneously overruled their motion for mistrial, made on the ground that the word “insurance” was elicited by appellee’s attorney during his cross examination of appellant Adis Flatt. She had testified on direct examination that she had received a letter from appellee’s attorney, which was her first notice of the claimed injury. The letter was marked as an exhibit and the court, observing in the last paragraph thereof a suggestion that her insurance carrier be notified, called the attorneys to the bench and, outside the hearing of the jury, admonished them not to bring out the fact that insurance was mentioned in the letter. In his cross examination appellee’s counsel asked this question:

“Do you recall in that letter us asking you to contact us?” to which Mrs. Flatt replied :
“I recall that you asked that if I had insurance to cover this, for me to get in touch with my insurance agency, because you was bringing charges.”

When the attorney again propounded substantially the same question, she said:

“I don’t recall that you asked me to contact you; I recall you asked if I had insurance, I had better get in touch with my insurance — ”

When counsel for appellants then moved for a mistrial, the court instructed the jury not to consider any reference at all to insurance because it had nothing whatever to do with the case, and overruled the motion for mistrial. The use of the word “insurance” having been made voluntarily by one of -the appellants, and not through any fault or improper question of appellee’s attorney, appellants will not be heard to complain of any prejudice that may have resulted to them thereby. Texas Textile Mills v. Gregory, 142 Tex. 308, 177 S.W.2d 938; Finck Cigar Co. v. Campbell, 134 Tex. 250, 133 S.W.2d 759. Appellants’ first point is overruled.

The second point, which complains because the court overruled appellants’ motion for mistrial when appellee’s counsel asked Mrs. Flatt about other pending lawsuits against her, is likewise without merit. Appellee’s counsel first asked her if she had many accidents at the school. She answered, “No, sir, we do not.” He then asked her, “How many other lawsuits have you got pending against you ?” She promptly answered, “None,” after which her counsel objected on the ground that it was highly prejudicial and inflammatory, and moved for a mistrial. The court sustained the objection, instructed the jury not to consider the question and answer for any purpose, and overruled the motion for mistrial. We approve these rulings, but even if they were incorrect it is obvious that no harm could have resulted to appellants. Rule 434, Vernon’s Texas Rules of Civil Procedure. The second point is overruled.

By their third point of error appellants say the court erred in overruling their motion for instructed verdict in the light of a release signed by appellee. About three and a half months prior to the accident in question, the appellee had received a permanent wave at appellants’ place of business and signed an instrument reading as follows:

“Date July 13, 1961.
“I, Joanne D. Hill, do hereby agree to release the MARINELLO BEAUTY COLLEGE, Instructors and Student Body for any damages or resulting damaged condition which might occur now or later from beauty service and solution used on me.”

Appellee testified that she was required to sign the release prior to the permanent wave treatment on July 13, 1961 because she refused to remove the dress she was wearing and don a smock tendered her by the operator, and that she was not asked to sign any release prior to or in connection with her shampoo and “set” on the date of her injury, or on any of the several previous occasions when she had received similar services there. Mrs. Flatt testified that the release in question is signed by all customers when they receive a tint or dye or permanent wave, and that if a person came into the shop for only a shampoo and “set” she would not be required to sign one of them.

It seems quite clear to us from the language used by appellants in preparation of the release, as well as the testimony of Mrs. Flatt, that this release was intended to cover only such damages as might result from the services then about'to be rendered, even though such damages might not be discovered until some future date. It was not intended by either party as a blanket acquittance of all liability for damages which might result from other services indefinitely in the future.

Moreover, appellee pled that there was no consideration for the release. No consideration is recited in the instrument itself, and none was proved. For this additional reason, we hold that the release did not bar appellee’s action, and the third point of error is overruled.

Appellants’ fourth point of error asserts excessiveness of the $1,500 award. We cannot agree. The evidence is undisputed that appellee sustained a fairly serious injury to her eye, involving the loss of a portion of the cornea and damage to underlying tissue, together with a secondary iritis; that she was under the care of an eye specialist for approximately a year; that she suffered pain and was required to adopt precautionary measures up to the time of trial, and would in the future, such as wearing special protective glasses and avoiding excessive amounts of dust, chemicals, air conditioning blasts, heat from heaters, “or any type of drying or damaging effects to the eye”; that her doctor’s bill was $100 and she was compelled to hire household help one day a week at a cost of $6.66 each time. The injury has caused appellee to be very conscious of her eyes and possible injury to them.

We find nothing in this record to indicate that this award was the result of any improper' motive. So far as the record reveals, it was conscientiously arrived at by due deliberation, and it is not so excessive as to shock our sense of justice. We have no right, then, to set it aside. Green v. Rudsenske, Tex.Civ.App., 320 S.W.2d 228, no wr. hist.

Finding no error sufficient to require reversal, we affirm the judgment.

Affirmed.


author: PHILLIPS, Justice.

text:
    John Henry MEIER and Meier Motors, Inc., Appellants, v. D. W. VAN HUSS, Appellee.
    No. 11180.
    Court of Civil Appeals of Texas. Austin.
    May 13, 1964.
    Rehearing Denied June 10, 1964.
    Upton, Upton, Griffis, Shannon & Porter, San Angelo, for appellants.
    O’Neal Dendy, San Angelo, for appellee.
   PHILLIPS, Justice.

We withdraw our original opinion and submit the following.

This suit was brought by appellee, D. W. Van Huss, to recover certain sums of money alleged to be owing to appellee by appellants, John Henry Meier and Meier Motors, Inc.

Appellants repossessed appellee’s 1955 model Dodge pickup truck allegedly under the terms of a promissory note and chattel mortgage lien when appellee became delinquent in the payment of the note.

Appellee brought suit against appellants, jointly, to recover the following: The sum of $128.34, being twice the amount of the alleged usurious interest of $66.17 paid to appellants; the sum of $85.00 alleged to have been wrongfully paid to appellants by appellee in order to obtain possession of the pickup; the sum of $30.00 for the loss sustained by appellee in being unlawfully deprived of the use of the pickup by appellants; and the sum of $1,500.00 as exemplary or punitive damages. Appellee had paid appellants the alleged interest and the $85.00 item mentioned above in order to regain possession of the truck. The $85.00 consisted of $35.00 described as a “pick up charge” and $50.00 as a “late charge.”

The court entered judgment for appellee upon the jury’s verdict for the total sum of $658.34, together with interest and court costs, said amount representing $30.00 for the loss of the use of the pickup, $128.34 being twice the amount of $64.17 as usurious interest, and $500.00 as exemplary damages.

We affirm part of the judgment of the trial court subject to the reformation hereinafter described; and reverse and render part of said judgment.

The court submitted, and the jury answered issue No. 2 as follows:

“From a preponderance of the evidence, what sum of money, if any, do you find was included as interest in the note signed by D. W. Van Huss, on July 31, 1961? Answer in dollars and cents, if any. Answer: $-.
“The jury answered $44.63.”

Appellants maintain that the court erred in submitting in the court’s charge to the jury the definition of “interest” in connection with special issue No. 2 of the court’s charge to the jury over appellants’ timely objection. That such definition should have also contained the additional words:

“You are further instructed that a seller may have a cash price for his commodities and may have also a different and higher time credit price for the same commodity, and that such difference in said prices do not constitute interest for the forbearance, use and retention of money or credit.”

That the court erred in refusing to submit in the Court’s charge to the jury, appellants’ requested special issue, which reads as follows:

“Requested Special Issue No. —-.
Do you find from a preponderance of the evidence that the plaintiff, D. W. Van Huss, paid to the Defendants usurious interest on his contract of indebtedness : Answer ‘yes’ or ‘no.’ Answer: -. In connection with the foregoing Special Issue, you are instructed that by the terms ‘usurious interest’ is meant that interest which is greater than 10% per annum on the amount of the contract. In this connection, you are further instructed that a seller may have a cash price for his commodities and may have also a different and higher time credit price for the same commodity, and that such difference in said prices do not constitute interest for the forbearance, use or detention of money or credit.”

The evidence discloses that appellee signed a “purchase Money Chattel Mortgage” reciting that the described pickup had a “Total Time Credit Price” of $773.80, less a down payment of $295.00 leaving a “Total Time Balance” of $478.80 which appellee agreed to pay to appellants in six monthly installments of $79.80.

Appellants’ testimony was that the price of the car, that is, the cash price of the car, was $695.00, that the tax license and transfer was $34.63; that the sum of these two figures was the total cash selling price ; that the time selling price was $773.80; that the difference between the total cash selling price and the time selling price was $44.17. The jury found that this last amount was interest. To this was added a $20 fee which appellants testified they collected by adding 10% to the delinquent payments. The total of $44.17 and the $20 interest fee is $64.17, which doubled is $128.34. Art. 5073, Vernon’s Ann.Civ.St.

Art. 5074a, V.C.S., allows a dealer a cash price and a different and higher time credit price. Under the evidence presented, appellants would possibly have been entitled to their requested charge and issue had they plead the provisions of Art. 5074a as a defense.

We must overrule appellants’ contention that the court erred in refusing to submit their requested issue and charge to the jury. Rule 279, Texas Rules of Civil Procedure, states that a party shall not be entitled to an affirmative submission of any issue in his behalf where such issue is raised only by a general denial and not by an affirmative written pleading on his part. Appellants answered by general denial only, thus precluding the defense they sought to assert in their requested issue and also by the definition of usury that they requested. Matthews v. General Accident Fire & Life Assurance Corporation, 161 Tex. 622, 343 S.W.2d 251.

Inasmuch as we affirm the judgment for usurious interest as plead by appellee, we reform it so as to allow appellee to recover from appellants the $35.00 item described as “pick up charge” and the sum of $50.00 collected from appellee by appellants as a “late charge.” This is in addition to the $128.34 which is twice the amount of the usurious interest allowed by the court and the $30 for the loss of the use of the pickup.

We reverse and render that portion of the judgment that grants appellee $500 for exemplary damages. For exemplary or punitive damages in a case such as this there must be evidence of aggravated circumstances showing malice, fraud or gross negligence. There is no evidence in this record to sustain any of these elements. Panola Motor Co. et al. v. Corbin, Tex.Civ.App., 253 S.W.2d 688, writ refused.

Part of the judgment of the trial court is affirmed as reformed and part reversed and rendered.

Reformed and affirmed in part and in part reversed and rendered.