author: CALVERT, Chief Justice. NORVELL, Justice.

text:
    UNIVERSITY SAVINGS AND LOAN ASSOCIATION et al., Petitioners, v. SECURITY LUMBER COMPANY, Incorporated, Respondent.
    No. B-261.
    Supreme Court of Texas.
    Nov. 29, 1967.
    Dissenting Opinion and Rehearing Denied Jan. 17, 1968.

      Eastham & Meyer, Sam Dawkins, Jr., Townes & Townes, Edgar E. Townes, Jr., Houston, for petitioners.
    Bracewell & Patterson, William K. Wilde and Ronald C. Kline, Houston, for respondent.
   CALVERT, Chief Justice.

The trial court, in a trial without a jury, awarded Security Lumber Company, Inc. a joint and several judgment against Wieg-hard Construction Company, Jack C. West-moreland, Harold A. Currlin and Thomas A. Wieghard for the sum of $12,284.36, plus interest and attorney’s fees. The principal recovery represented the value of materials alleged to have been furnished to Wieghard Construction Company for construction of improvements on three city lots. Liability of Westmoreland, Currlin and Wieghard was based on written contracts, required by Security before it would deliver materials, guaranteeing payment of the construction company account. The trial court judgment also established validity of statutory mechanic’s and materialmen’s liens on the three lots in favor of Security; established priority of such liens over deed of trust liens on the three lots held by University Savings & Loan Association, which had foreclosed its liens under a power of sale and bought the lots, to the extent of material furnished before recordation of University’s deeds of trust; awarded Security a money judgment against University in a surtí representing the value of materials furnished for improvements on the three lots before execution of the deeds of trust, and against purchasers of two of the lots for their respective shares of such sum; foreclosed the mechanic’s and materialmen’s liens on the three lots and directed issuance of an order for sale of the three lots to satisfy the judgment. The judgment against Wieghard Construction Company and Thomas A. Wieghard was by default.

The court of civil appeals reformed and affirmed the trial court’s judgment. Security’s mechanic’s and materialmen’s liens were given priority over University’s deed of trust liens to the extent of the value of all materials furnished for improvements on the three lots, both before and after, execution of the deeds of trust; a money judgment was rendered against University for the value of all such materials, and against the purchasers of the two lots for the value of all materials furnished for construction of improvements on their respective lots. Security Lumber Company v. Wieghard Construction Co., 413 S.W.2d 745. We affirm the judgment of the court of civil appeals.

A joint application for writ of error was filed in this court by University and the two lot owners, and a separate application was filed by Westmoreland. Both applications were granted. Westmoreland’s application raises only one basic question, viz: Is there in the record evidence of probative force supporting that part of the trial court’s judgment awarding Security a recovery of money for materials furnished? The application filed by University and the lot owners raises the same question as Westmoreland’s application and two additional questions: (1) Is Security’s right to assert the priority of and to foreclose its liens barred by the two-year statute of limitation ? (2) Are Security’s liens prior and superior, in whole or in part, to University’s deed of trust liens? The questions will be discussed in the order in which they are listed.

The court of civil appeals held that the trial court’s money judgment for Security is supported by evidence. The holding is based in large part on certain business memoranda or records of Security which were admitted in evidence over objections by the defendants who are petitioners here. Westmoreland contends that the records were not admissible under Article 3737e, Vernon’s Ann. Texas Civil Statutes, the Business Records Act, and are therefore hearsay and incompetent to prove Security’s claim. University contends that even if the records were admissible under the statute to establish Security’s claim against the construction company, they were not admissible against it; that it was not the purpose of the statute to make a record of transactions with one person admissible in a suit against a third person who is not in position to disprove its accuracy.

Admissibility and competency of the business records as proof of Security’s claim must be determined in the following procedural and factual context. Security’s action was founded upon a sworn account as authorized by Rule 185, Texas Rules of Civil Procedure. Westmoreland filed a written denial,. stating under oath that the account was not just or true, in whole or in part. As proof of the indebtedness, Security offered in evidence a large number of invoices and “delivery tickets.”

The invoices are printed forms with blank spaces to be filled in showing to whom materials are sold, the quantity of materials ordered, the date of the order, the price of various materials included in the order and the total charge for all included materials. The first line of each of the invoices introduced in evidence contains this statement: “Sold to Wieghard Construction Company * * * ” The 'words “Sold to” are printed and the words “Wieghard Construction Company” are written in with ink or a pencil. Each invoice contains a list of the materials ordered, the date of the order, the price of the various materials included in the order and the total charge for all included materials.

Security’s president testified that the invoices were made in the regular course of business; that in the regular course of business an employee took the orders for the materials and wrote them down on cardboard “loading tickets” which were sent to employees whose duty was to load the materials for delivery; after the listed materials were loaded on trucks, the loading tickets were then returned to the office and from them other employees made up the invoices showing the sale to Wieghard Construction Company of the same materials as were listed on the loading tickets and the date of sale and delivery; another employee then checked the materials on the trucks against the invoices to make certain the orders were properly filled, and gave the truck drivers two copies of the invoices, one to be turned over to the purchaser upon delivery and the other to he signed by someone at the construction proj ect and returned to the office as a “delivery ticket”; prices were then entered on the- invoices and on fourth copies which were mailed to the construction company. Security’s president also testified that the construction company was given a written quotation of prices before any materials were ordered.

Article 3737e provides:

“Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:
“(a) It was made in the regular course of business.
“(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
“(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.
“Sec. 2. The identity and mode of preparation of the memorandum or record in accordance with the provisions of paragraph one (1) may be proved by the testimony of the entrant, custodian or other qualified witness even though he may not have personal knowledge as to the various items or contents of such memorandum or record. Such lack of personal knowledge may be shown to affect the weight and credibility of the memorandum or record but shall not affect its admissibility.
«⅜ * ⅜»

Under the provisions of the statute, the invoices were business memoranda and were properly admitted as competent evidence of acts or events included therein if their identity and mode of preparation in accordance with paragraphs (a), (b) and (c) of Section 1 were proved by a qualified witness even though the witness had no personal knowledge as to the various items or contents of the invoices. The president of Security was a qualified witness within the meaning and intent of the statute, and his testimony undoubtedly supports the implied finding of the trial judge that the invoices were made in the regular course of business and were made at or near the time of the recorded act or event or reasonably soon thereafter. The testimony of the president also supports a finding that it was the regular course of Security’s business for an employee having personal knowledge that Wieghard Construction Company had ordered certain materials delivered to it to transmit that information to other employees for filling the order and, after the loading for delivery, thence to still other employees to be included in the invoices. The invoices were admissible in evidence and under Art. 3737e the entries therein are competent evidence that Wieghard Construction Co. had offered to buy the listed materials and Security had accepted the offer.

But Westmoreland argues that there are no entries in the invoices and no independent evidence tending to establish two essential elements of a sale, to wit: (1) that the prices charged were agreed to or were reasonable, and (2) that the materials were actually delivered to and received by the construction company. The answer to the argument is that there is ample independent evidence which will support a reasonable inference by the trial court of the existence of these two elements of a sale. Upon proof that in the regular course of Security’s business materials which were ordered were loaded on trucks for delivery and that the “delivery tickets” were returned to the office only after delivery of the loaded materials, the trial court was authorized to conclude from Security’s possession of the delivery tickets that the ordered materials had been delivered. Also, proof that Wieghard was furnished a written quotation of Security’s prices in advance, then ordered the materials, and was thereafter furnished a copy of the invoices with prices shown thereon, furnishes an eviden-tiary basis for a reasonable inference by the trial court that the prices shown on the invoices were agreed prices. The invoices are evidence only, and petitioners were not precluded from proving, if they could, that the prices charged had not been agreed to or that the materials had not been delivered. See generally Roy R. Ray, Business Records —A Proposed Rule of Admissibility, 5 Sw. L.J. 33.

As authority for its position, West-moreland cites a number of court of civil appeals decisions in which the courts have held that there can be no recovery in a suit on a sworn account which is denied under oath in the absence of proof that the prices charged were agreed to or were reasonable and that the goods or materials were delivered to the person charged. We do not find it necessary either to quarrel with or separately to distinguish those cases. In none of them were business records, properly authenticated under Article 3737e, admitted in evidence to supply elements of necessary proof. Much emphasis is laid on a statement in the court’s opinion in Love v. Travelers Ins. Co., 395 S.W.2d 682, 685 (Tex.Civ.App. —Texarkana 1965, writ ref’d n. r. e.) that “When the records are offered in evidence it must be under pleading and proof that they were made in the regular course of business at or near the time the act or event of [or] condition is recorded or reasonably soon thereafter.” The statement is an obviously incorrect statement of the law. We expressly disapprove the holding that there must be pleading that business records meet the requirements of Article 3737e as a predicate for their admission in evidence. The notation on the new account card offered in evidence and excluded in North Texas Lumber Co. v. Kaspar, 415 S.W.2d 470 (Tex.Civ.App. — Dallas 1967, writ ref’d n. r. e.) was not shown to have been made by an employee with personal knowledge of the matter recorded and is not in point or persuasive.

We hold that the invoices were admissible in evidence and, with other facts and circumstances, constitute competent evidence supporting Security’s money judgment against Wieghard and the guarantors of the debt. We need not decide whether the invoices alone would support the judgment. A sufficient answer to University’s contention that business records should not be admissible against a litigant who was not a party to the business transaction is that the statute does not limit their admissibility to suits between the original parties to the business transaction. We would be reluctant to write the limitation into the statute when the Legislature could easily have done so if it had regarded it as wise. We accordingly hold that the invoices also were admissible in evidence and constitute competent evidence supporting Security’s money judgment against University and its co-petitioners.

Under Article 5467, Vernon’s Texas Civil Statutes, Wieghard’s debt to Security is-deemed to have accrued on May 25, 1961, the date on which the last materials were furnished. Security filed its suit on August 2, 1962, well within the two-year limitation period. The only relief sought in the original petition was a money judgment against Wieghard Construction Company and the guarantors of its account. Relief establishing priority and ordering foreclosure of its liens was sought for the first time in a second amended petition filed on July 26, 1963, more than two years after the debt accrued. University and the lot owners were made defendants for the first time in the amended petition. In this fact situation, University and the lot owners contend that while the filing of the suit tolled the statutes of limitation as to Security’s cause of action for its debt and foreclosure of its liens against Wieghard, it did not toll the statutes as to the cause of action to establish priority of the liens and for foreclosure against them. If we correctly understand their argument, they then contend that inasmuch as they were not sued on the cause of action to establish priority of Security’s liens and to foreclose the liens as to them until more than two years after accrual of the cause of action on the debt, the cause of action against them was barred by the two-year statute.

The contention is novel and ingenious, and we can understand why neither party has cited us to any prior decision directly in point. We agree with the holding of the court of civil appeals that Security’s cause of action for foreclosure of its liens as against University and the lot owners was not barred by the two-year statute of limitation. Security’s suit on its cause of action for its debt was filed before the expiration of two years from the date on which the cause of action accrued. As pointed out by the court of civil appeals, the liens are incidents of and inseparable from the debt. West v. First Baptist Church of Taft, 123 Tex. 388, 71 S.W.2d 1090 (1934); Pope v. Beauchamp, 110 Tex. 271, 219 S.W. 447 (1920); Ball v. Hill, 48 Tex. 634 (1878) ; McAlpin v. Burnett, 19 Tex. 497 (1857). Since the cause of action for debt was not barred, neither was the cause of action to foreclose the liens. In this respect the position of University and the lot owners in the suit does not differ from that of Wieghard. They acquired their titles through foreclosure of the deeds of trust with constructive notice of Security’s liens. If they had not been made parties to the suit and the suit had proceeded to judgment establishing the debt and foreclosing the liens against Wieghard, and thereafter a controversy had developed between the purchaser at the judicial sale and University and the lot owners, the latter could not successfully have asserted the statute of limitation as a bar to the purchaser’s rights against them. This is well settled by our decisions. See Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d 865 (1940); King v. Brown, 80 Tex. 276, 16 S.W. 39 (1891); Paddock v. Williamson, 9 S.W.2d 452 (Tex.Civ.App. — Beaumont 1928, writ ref’d). The fact that they were made parties to the suit does not enlarge their rights.

This brings us to a consideration of the principal problem in the case, i. e., whether Security’s statutory materialmen’s liens are prior and superior, in whole or in part, to University’s deed of trust liens. The opinion of the court of civil appeals indicates that its holding that Security’s liens are prior and superior to the extent of the value of all materials furnished is based upon its conclusion that Wieghard and Security had entered into a special contract for the purchase and sale of all materials for the erection of the proposed improvements before any materials were delivered, and that Security’s liens had their inception in and related back to this contract.

The record before us does not support a conclusion that a special contract of purchase and sale of all materials was entered into by Wieghard and Security before the first delivery of materials. The record reflects that Security merely quoted its prices to Wieghard and required guarantors of Wieghard’s account for such materials as it might thereafter elect to purchase. Cf. Vaughan Lumber Co. v. Martin, 98 Tex. 80, 81 S.W. 1 (1904). We need not decide, therefore, whether in the absence of a general construction contract between an owner of land on the one hand and a building contractor on the other, the lien of one who supplies material pursuant to a special contract with an owner-builder will relate back to the date of the contract.

Security contends that even in the absence of a general construction contract or a special contract for materials antedating recordation of a deed of trust, a material-men’s lien for all materials furnished, both before and after such recordation, relates back to the date on which materials were first furnished; that the lien given a supplier of materials by the mechanic’s and ma-terialmen’s lien statutes is but one lien and its inception is in the first act of furnishing materials. Neither party has cited us to a case which is decisive of the question presented and we have found none in our research. The problem is primarily one of proper interpretation of the applicable statutes, not one of policy or of equities. For this reason, intermediate court decisions, discussed by the parties, which speak of the notice imparted to prospective lienors by the beginning of work on or delivery of materials for construction of improvements are neither controlling nor persuasive.

Article 5459 is one of the series of applicable statutes and controls priority. It provides:

“The lien herein provided for shall attach to the house, building, improvements or railroad for which they were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon which the houses, buildings or improvements, or railroad have been put, or labor performed, and the person enforcing the same may have such house, building or improvement, or any piece of the railroad property, sold separately; provided, any lien, encumbrance or mortgage on the land or improvement at the time of the inception of the lien herein provided for shall not be affected thereby, and holders of such liens need not be made parties in suits to foreclose liens herein provided for.”

The statute plainly provides priority for mechanic’s and materialmen’s liens over all liens except those “on the land or improvement at the time of the inception” of the mechanic’s or materialmen’s liens. The controlling factor in determining the relative standing of such liens with other liens is thus the time of inception of such liens. The narrower question, therefore, is this: When did Security’s liens have their inception? A brief review of the history of the applicable statutes and of our past decisions will be helpful in arriving at the correct answer.

Some form of security for claims of laborers and materialmen has been a matter of major concern in Texas since the days of the Republic. By an Act of the Congress approved in January, 1839, builders and mechanics with written contracts were given a lien on buildings and the land on which they stood, and an exclusive lien on improvements made by them, to secure their accounts for labor and material. 2 Gammel, Laws of Texas 66. Another Act of the Congress, passed in February, 1844, provided additional security for the payment of claims of laborers, materialmen and subcontractors, through retainages. The Statutes of the Republic were carried into the statutory law of the State by Art. XII, § 2 of the Constitution of 1845. 2 Gammel, Laws of Texas 1298.

Liens of mechanics and artisans upon chattels manufactured or repaired by them were made constitutional liens by Art. XII, § 47 of the Constitution of 1869. 7 Gammel, Laws of Texas 427. The constitutional lien provision was broadened to include materialmen and to give a lien on buildings by Art. XVI, § 37 of our present constitution, adopted in 1876. By an Act approved in November, 1871, liens were given on buildings and improvements and on lands connected therewith to secure payment of claims for labor, material, machinery, fixtures and tools furnished to erect any house improvement or to repair any building, or article, or improvement whatever. 7 Gam-mel, Laws of Texas 30. In 1876, the Legislature brought the lien security and the retainage security of mechanics and mate-rialmen who erected or repaired buildings or improvements into one act, and repealed all laws in conflict therewith. The act contained no reference to priorities. 8 Gam-mel, Laws of Texas 927.

All prior laws on the subject were codified in Articles 3164-3179, Chapter 2 of the Revised Statutes of Texas of 1879. There was no mention of priority in any of the Articles. Several of the Articles were amended in 1885. Liens were given to mechanics and materialmen for labor performed and material furnished to erect or repair buildings and improvements “under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or contractors.” Other provisions made clear that a lien was to exist if a contract were verbal. Article 3171 provided: “The lien herein given shall attach to the buildings * * * in preference to any prior lien or incumbrance or mortgage upon the land * * * ; provided any lien, in-cumbrance or mortgage existing on the land or improvements at the time of the accrual of the lien herein provided for shall not be affected thereby * * 9 Gammel, Laws of Texas 683. By § 8 of an Act of the Legislature, approved in 1889, Article 3171 was rewritten, and the word “accrual” in the proviso emphasized above was changed to “inception.” 9 Gammel, Laws of Texas 1138. The priority provisions of the Act of 1889 are now included in Article 5459, supra.

As early as 1886 this court held in Fagan & Osgood v. Boyle Ice Machine Co., 65 Tex. 324, 331, in language not to be misunderstood, that it was not the registration required by the law but the law itself which gave a mechanic’s or materialmen’s lien. Said the court: “The lien is the creature of the law; the registration provided for, preserves it * * *. The record of the contract * * * did not, therefore, newly encumber the property, but fixed and secured upon it an existing lien.” Fagan & Osgood was cited in Trammell v. Mount, 68 Tex. 210, 4 S.W. 377, at 379 (1887), for this judicial dictum: “The lien of a mechanic, though not fixed before record of the contract or bill of particulars, when it is fixed, relates back to the time when the work was performed or the material furnished, and hence takes precedence of all claims to the property improved which have been fastened upon it since that time.” To the same effect, see Keating Implement and Machine Co. v. Marshall Electric Light & Power Co., 74 Tex. 605, 12 S.W. 489 (1889). In Trammell v. Mount, there was no written contract between an owner on the one hand and a general contractor on the other to which the labor done was referable. The statutory lien was enforced to secure payment for labor done under a verbal contract between an owner and an artisan who agreed to build only the walls of a stone house. The court adopted a policy of liberal construction of the statutes for the protection of laborers and material-men, and the lien was given priority over an attachment lien perfected after the labor was performed but before the artisan filed his bill of particulars as required by law.

The next case decided by this court having significant bearing on the question before us is Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 L.R.A. 765 (1895). A careful analysis of the opinion in that case is important in determining whether it disavowed the dictum of Tram-mell v. Mount or extended it further for the protection of mechanics and material-men, and also in deciding whether and to what extent the interpretation there announced of the priority statute was later modified, if at all, in Sullivan & Co. v. Texas Briquette & Coal Co., 94 Tex. 541, 63 S.W. 307 (1901), and McConnell v. Mortgage Inv. Co. of El Paso, 157 Tex. 572, 305 S.W.2d 280 (1957).

In Oriental Hotel Co. v. Griffiths, the relevant facts were: The Oriental Hotel Company began the erection of a hotel in August, 1889, and had completed and paid for the foundation prior to February 24, 1890. On February 24, 1890, the hotel company entered into a general contract with Griffiths to erect and construct the hotel according to an architect’s plans and specifications, and Griffiths began his work on April 4, 1890. On May 1, 1890, the hotel company executed a deed of trust to St. Louis Trust Company to secure the hotel company’s bonds issued and sold to obtain funds to erect the hotel. When the hotel was completed, Griffiths had not been paid the full amount due under his contract and claims of certain others who had furnished labor and material after recordation of the deed of trust were unpaid. All perfected their liens as provided by statute. The mortgagee’s opposition to the claims of priority of those who had no contracts was based upon the Trammell v. Mount dictum, that is, that these liens related “back to the time when the work was performed or materials furnished,” and thus were secondary to the deed of trust liens.

In deciding the question presented, the court restated its policy of liberal construction of the statutes for the purpose of protecting laborers and materialmen and examined the problem in considerable depth. Because of the change in the wording of the priority proviso — “accrual” to “inception” — the court made several holdings, some of which are of particular significance here, to wit: (1) liens of laborers and materialmen, when perfected, will relate back to the date of their “inception”; (2) the date of “inception” is not necessarily the date on which the labor was performed or the material was furnished as per the dictum in Trammell v. Mount; (3) the date of execution of a contract for erection of a building or construction of an improvement is the date of inception of all liens for labor and material necessary to completion of the building or improvement. Accord: McConnell v. Frost, 45 S.W.2d 777 (Tex.Civ.App. — Waco 1931, writ ref’d). Even a casual reading of the opinion in Oriental Hotel v. Griffiths makes quite clear that the court did not hold (1) that to have priority over a deed of trust or other lien, a mechanic’s or materialman’s lien must have had its inception in a general bilateral contract antedating recordation of a deed of trust or the date of perfection of such other lien; or (2) that when timely perfected as provided by statute, a mechanic’s or materialman’s lien for all labor done or material furnished will not relate back to the date when his labor was first performed or his material was first furnished. Neither were any such holdings made in Sullivan & Co. v. Texas Briquette & Coal Co., 94 Tex. 541, 63 S.W. 307 (1901), nor in the recent case, McConnell v. Mortgage Inv. Co. of El Paso, 157 Tex. 572, 305 S.W.2d 280 (1957). In Sullivan & Co. the trial court and court of civil appeals gave priority to liens of materialmen who furnished material and machinery for erection of a mining plant after a deed of trust had been recorded. This court reversed, holding that the deed of trust lien was entitled to priority under the provisions of the statute. We rejected the idea that such liens had their inception when the owner determined to improve his property, and added: “The rights of the parties in this case are fixed by the statute, and cannot be disposed of upon any supposed equitable ground.” In McConnell, we denied priority to mechanic’s and material-men’s liens for labor done and material furnished after recordation of a deed of trust, and refused to relate them back to a date, prior to recordation of the deed of trust, when work which had been paid for was done toward erection of the improvements. We were not called upon to decide, and did not decide, that the lien of a mechanic or materialman will not relate back to the date when his first labor is performed or material is furnished for which payment has not been made. Indeed, the opinion in McConnell has been interpreted as reaffirming the rule of the dictum of Trammell v. Mount in this situation. See Florey, Priority of Mechanic’s and Mate-rialmen’s Liens in Texas, 40 Texas L.Rev. 872, at 881 (1962).

On authority of the rule laid down in the dictum in Trammell v. Mount, we conclude that Security’s liens on the three lots had their “inception” in the first deliveries of materials to the three lots for erection of the improvements thereon, and that each of such liens had its inception before University’s deed of trust was recorded. Once that conclusion has been reached, the judgment of the court of civil appeals giving priority to Security’s liens to the full extent of the value of all materials furnished, both before and after recordation of the deed of trust, must he affirmed. By the express terms of Article 5467, Security’s indebtedness is “deemed to have accrued at the date of last delivery of such material”. It has one lien securing the entire indebtedness as to each lot, not a series of liens securing separate debts. That is the clear meaning of Art. XVI, § 37 of the Constitution and of Articles 5452-5472 of the statutes. There is no provision in Article 5459 for breaking a single lien into segments, and no authority therein for holding that one segment of a lien is prior to a deed of trust lien and another segment is secondary thereto. There is, therefore, no basis in the statute for the trial court’s judgment on this phase of the case. The entire lien is made prior or secondary by the statute. Giving the lien priority is in accord with our long-standing rule of liberal construction for protection of laborers and materialmen who by their contribution add to the value of the security for the deed of trust debt.

The judgment of the court of civil ap' peals is affirmed.

WALKER, NORVELL and HAMILTON, J., dissenting.

DISSENTING OPINION

NORVELL, Justice.

Security Lumber Company’s cause of action against Weighard Construction Company was founded upon a sworn account for materials furnished by Security Lumber to the Weighard Company at various times during the months of March, April and May of 1961. Apparently, there was no contract between the mentioned parties obligating the Weighard Company to pay a definite sum of money for specific materials, but the Weighard Company’s liability was controlled by the orders for materials which were placed with Security Lumber from time to time. Any special agreement that the Weighard Company may have had with Security was not in the nature of a “general contract” such "as that involved in Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 L.R.A. 765 (1895), so that it cannot be said that there was a contract which constituted the “inception” of the materialman’s lien. Such “inception” would then necessarily date from the time the materials were delivered upon the job site. Trammell v. Mount, 68 Tex. 210, 4 S.W. 377 (1887) . The record shows that three separate deliveries of materials were made to the three separate lots or job sites before the deed of trust securing the University Savings and Loan Association loan was filed for record on April 6, 1961. These deliveries took place on March 7, March 28 and April 3. After April 6, 1961, Security made three additional deliveries of materials on April 29, May 15 and May 25. In my opinion, Security’s lien securing the reasonable values of the materials before April 6, 1961 was superior to the University deed of trust, but as to the reasonable value of the materials delivered after April 6 (on April 29, May 15 and May 25), I find no compulsion in the wording of the material lien statutes which requires us to hold that the lien or liens securing these amounts must come ahead of the deed of trust. In the absence of statutory wording compelling such result, I would not so hold. The greater good lies with the security of land titles and the certainty of financial obligations.

I think the trial court’s judgment was correct and accordingly dissent from this Court’s order affirming the judgment of the Court of Civil Appeals.

      . Emphasis ours throughout unless otherwise indicated.

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

      . This Article was amended by Acts 1961, 57th Leg., p. 863, ch. 382 § 7, but the amendment does apply in this case.

      . In connection with Oriental, see, Sullivan & Company v. Texas Briquette & Coal Co., 94 Tex. 541, 63 S.W. 307 (1901), and McConnell v. Mortgage Investment Co. of El Paso, 157 Tex. 572, 305 S.W.2d 280 (1957).

      . Trammell v. Mount contains language which seems to infer that delivery to the job site would not be essential if delivery were directed to another place by the owner or he refused to accept delivery. When the liens of others are involved, the soundness of this inference may be doubted. However, the question is not before us in this case.


source: Caselaw Access Project

author: ONION, Judge.

license: Public Domain

text:
    Joe C. SALAZAR, Appellant, v. The STATE of Texas, Appellee.
    No. 40960.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1968.
    Ochsner, Nobles & Baughman by Frank J. Baughman, Amarillo, for appellant.
    Gene Compton, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The indictment drawn under the provisions of Article 489c, Vernon’s Ann.P.C., alleged that appellant, on or about April 14, 1967, had in his possession away from the premises upon which he resided, a pistol, he having been convicted on February 22, 1956, in Cause No. 9592 in the 47th District Court of Potter County, Texas, of robbery by assault and he having served a term in the penitentiary under such conviction.

A jury being waived, the trial was before the court upon a plea of not guilty. Judgment was rendered adjudging appellant guilty arid assessing his punishment at four (4) years confinement in the Texas Department of Corrections.

Appellant presents four grounds of error, two of which relate to the failure of the court to grant a motion for judgment of acquittal presented at the conclusion of the testimony. Appellant first contends that he is being unconstitutionally subjected to an ex post facto application of Article 489c, supra, as Section 1 thereof was not in effect in its present form on February 22, 1956, the date of his conviction for robbery by assault, which he contends was not a felony involving an act of violence with a firearm.

Article 489c, supra, was originally enacted in 1949. (Acts 1949, 51st Leg., p. 1186, Ch. 599, Sec. 1). Section 1 thereof at the time read as follows:

“It shall be unlawful for any person who has been convicted of a felony involving an act of violence with a firearm under the Laws of the United States or of the State of Texas, or of any other State, to have in his possession away from the premises upon which he lives, any pistol, revolver or any other firearm capable of being concealed upon the person.”

In 1957 Section 1 of Article 489c, supra, was amended to read as follows:

“Section 1 It shall be unlawful for any person who has been convicted of burglary or robbery, or a felony involving an act of violence with a firearm under the laws of the United States or of the State of Texas, or of any other state, and who has served a term in the penitentiary for such conviction, to have in his possession away from the premises upon which he lives any pistol, revolver or any other firearm capable of being concealed upon the person.” (Acts 1957, 55th Leg., p. 50, Ch. 28, Sec.1) (Amendments or additions italicized)

It is observed that the emergency clause of such legislation reads in part as follows:

“Sec. 3 The fact that many ex-convicts not now subject to the act amended herein are in possession of firearms which are used for violation of the laws of this state creates an emergency and * *

In Hill v. State, 146 Tex.Cr.R. 333, 171 S.W.2d 880, this Court quoted with approval the definition of ex post facto laws set forth in Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 as follows:

“Mr. Justice Chase has tersely summarized ex post facto law to be every law that makes an action done before the passing of the law and which was innocent when done to become criminal and punishable as such; every law that aggravates a crime or makes it greater than when it was committed; every law that changes and inflicts a greater punishment; and ‘every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.’”

It is difficult for us to see how appellant can claim that his conviction under Article 489c as amended, resulting from his actions on April 14, 1967, rendered him subject to an ex post facto application of said statute.

The prior conviction for robbery was an essential element of the offense denounced by Article 489c, supra, and it was necessary that it be alleged in the indictment for jurisdictional purposes.

In Long v. State, 170 Tex.Cr.R. 177, 339 S.W.2d 215 (1960), while the specific question here presented was not raised, a conviction under Article 489c, supra, was affirmed under similar circumstances where the prior conviction (1954) was for burglary.

We further observe that at- the time of appellant’s conviction for robbery on February 22,1956, he was granted probation, which was subsequently revoked, causing him to be sentenced on March 22, 1960, long after the 1957 amendment to Article 489c, supra.

We cannot conclude that Article 489c, supra, was given an ex post facto application in the case at bar in violation of Article I, Sec. 10, U.S. Constitution, or Article I, Sec. 16, Texas Constitution, Vernon’s Ann. St., or Article 10, V.A.P.C.

Appellant further contends that his motion for judgment of acquittal should have been granted for the failure of the State to allege and to negate the exceptions contained in Section 4 of Article 489c, supra.

Such section, which has remained unchanged since its original enactment in 1949, reads as follows:

“Section 4 The penal provisions of this act shall not apply to any person commissioned as a peace officer, employed as a guard or watchman nor to any person who has not been convicted of a penal offense during the five-year period next immediately following his discharge or release from the penitentiary.”

The rules governing when exceptions to the operation of a criminal statute must be negatived in the State’s pleading is found in Baker v. State, 132 Tex.Cr.R. 527, 106 S.W.2d 308.

In Baker v. State, supra, at page 311, it was stated:

“From what we have said above, and as far as we have been able to ascertain, our courts have uniformly held that when the Legislature sees fit to create exceptions to the general penal provisions of a statute if such exceptions be placed in a separate section or article from the one containing the definition of the offense, or if they be not such as to be essential to the definition of the offense, it will not be necessary to negative such exceptions in the indictment charging such offense.”

See also McClane v. State, 170 Tex.Cr.R. 603, 343 S.W.2d 447; Stevenson v. State, 145 Tex.Cr.R. 312, 167 S.W.2d 1027; 1 Branch’s Ann.P.C.2d Ed., Sec. 530, p. 508.

The exceptions separately contained in Section 4 of Article 489c, supra, are clearly not a part of the definition of the offense. These exceptions are matters of excuse only, and it is for the party who claims such excuse to bring it forward in his defense. See Baker v. State, supra.

We therefore hold that the State was not required to plead or prove the exceptions contained in said Section 4 in order to sustain a conviction under Article 489c, supra.

The trial court properly overruled the motion for judgment of acquittal.

Appellant is in no position to complain on appeal about the introduction in evidence of an extraneous offense where he failed to object in the trial court. Freeman v. State, Tex.Cr.App., 357 S.W.2d 757. We, therefore, rej ect appellant’s ground of error that trial court reversibly erred when appellant’s 1963 conviction for assault with intent to rape was introduced by the State without objection. The State further contends that while not its obligation the same was introduced to negate one of exceptions contained in Section 4 which appellant insists the State was required to do. No error is presented.

We find no merit in appellant’s claim that the 1957 amendment to Article 489c, supra, was unconstitutional because the “caption” of said article, as amended, is in direct conflict with Section 1 thereof. Appellant confuses the “caption” used by the Vernon Law Book Company above said article' in Vernon’s Annotated Penal Code with the title of the bill as enacted by the legislature. The “caption” referred to by appellant and used by Vernon’s was not changed after the 1957 amendment, but such “caption” does not constitute a part of the statute.

The judgment is affirmed.


author: WOODLEY, Presiding Judge. MORRISON, Judge.

text:
    Palmer RAYFORD, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40939.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1968.

      D. Dalford Todd, Dallas, for appellant.
    Henry Wade, Dist. Atty., Malcolm Dade, Joe K. Hendley, Kerry P. FitzGerald and William S. Mason, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery with firearms; the punishment, SO years.

The indictment, returned April 26, 1965, alleged that appellant and Sammy Joe Jones acting together on or about March 5, 1965, made an assault upon Sophie Salverino and by assault and by violence and by putting her in fear of life or bodily injury and by using and exhibiting a gun, fraudulently took from the person and possession of Sophie Salverino without her consent and against her will one purse, one billfold and $15.00 in money.

The state having withdrawn its notice of intent to seek the death penalty and having given notice that it would not, the case came on for trial on September 9, 1966, and the jury having found appellant guilty, appellant elected to have the same jury assess the punishment.

The evidence upon which the state relied for conviction is summarized in the state’s brief as follows:

“On or about the 5th of March, 1965, Sophie Salverino and her husband Frank, were preparing to close their grocery store in Dallas, Texas. At about 10:00 p. m., her husband wálked out to get into his car, Sophie to follow when the car had been started. As soon as Frank started to open the car door, Sophie saw a flash and heard a ‘bang’ and shouted, ‘Oh my God! Frank has been shot.’ Sophie went to aid her husband, taking her purse, which she already had in her hand. While attempting to aid Frank, she placed her purse on the seat of their car, from where it disappeared. Four days later, the Appellant was arrested and made an oral statement which led police officers to the recovery of Sophie’s purse.”

Appellant’s brief sets out the state’s evidence as follows:

“The witness, Sophie Salvarino, testified for the State that her husband was shot in front of their grocery store, and that she lost a purse, and contents thereof, which had been placed in a truck nearby, but she did not testify that there was any direct contact with her person.

“J. L. Hoenburger, who worked for Sophie Salvarino in the grocery store, testified about the condition of Mr. Salvarino, and Mrs. Salvarino in front of the store.

“The officers for the City of Dallas, Texas, testifying in this case testified about the arrest of the defendant and the subsequent interrogation and oral confession, which was reduced to writing, received from the said defendant, but no one testified of having seen the defendant at the scene of the robbery, or connecting him with same, other than the defendant’s statement in this case.”

Mrs. Salverino testified that she had a purse in her hand when she went to the car to aid her husband and put the purse on the car seat. Asked if she was scared she replied: “Certainly I was. Who wouldn’t be ?” She further testified that her husband died in her arms.

She identified the purse which was found five days later as the result of the oral statement or confession of appellant, in which he confessed to having participated in the robbery. She also identified the contents of the purse which had been found spilled on the ground near the purse which was hanging open in a tree. She testified that the purse she put on the car seat, and its contents, belonged to her and that she did not give appellant or anyone else permission to take her purse.

We are in accord with the state’s contention that Mrs. Salverino did not relinquish possession of her purse and its contents by placing them on the car seat, and that one may be robbed of property not taken from his person. Ibeck v. State, 112 Tex.Cr.R. 287, 16 S.W.2d 232; Goodrum v. State, 172 Tex.Cr.R. 449, 358 S.W.2d 120.

Also, we find no merit in appellant’s contention that Mrs. Salverino was not put in fear of her life or bodily injury. Cranford v. State, Tex.Cr.App., 377 S.W.2d 957.

Appellant’s grounds of error 2 to 6 inclusive relate to the admission in evidence of the oral statement or confession of appellant and the evidence obtained as a result of such confession.

Ground of error No. 2 is: “The trial court erred in allowing, over the defendant’s objections and exceptions, the testimony from state’s witnesses as to the oral statement and confession made by the defendant in this cause.”

Ground of error No. 3 is: “The court erred in finding that the statement received into evidence in this cause met the requirements of the law to make it voluntary and useful against defendant in a criminal case.”

The robbery was committed March 5, 1965, and the statement was made March 9, 1965. Trial was on September 9, 1966.

The trial judge, upon the evidence adduced before him, found that the oral statement of appellant which implicated him as a principal in the robbery was given in accordance with the statutes of the State of Texas.

The applicable statutes at the time the statement was made were Article 726 C.C.P. 1925, now Art. 38.21 Vernon’s Ann. C.C.P. (not materially changed) which provides :

“The confession of a defendant may be used in evidence against him if it appear the same was freely made without compulsion or persuasion, under the rules hereafter prescribed.”

and Art. 727 C.C.P. 1925, which as it related to oral confessions provided in part:

“The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in custody of an officer, * * *. unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. * * * »

Article 38.22 of the 1965 Code of Criminal Procedure, in effect at the time the oral confession was admitted in evidence, contained the identical provision, but by reason of the inadvertent omission of a portion of the succeeding sentence of Art. 727, supra, (which related to the statement of a defendant unable to write his name, who signs it by making his mark), Art. 38.22 of the 1965 Code added to the above quoted provision of Art. 727 the following:

“ * * *, such statement shall not be admitted in evidence, unless it is witnessed by some person other than a peace officer, who shall sign the same as a witness.”

The evidence from which the trial court concluded that the oral confession was admissible included the following:

About 4 or 4:30 P.M. on March 9, 1965 (four days after the robbery), Detective Parks received information from appellant’s codefendant Sammy Joe Jones that appellant was with him when he committed the robbery and killed Mr. Salverino. Parks and his fellow officers then went to appellant’s home to arrest him and took him to jail.

About 7:30 P.M. appellant was brought out of jail into the Homicide Office.

Detective Verlon Monaghen testified in part:

“Q. I will ask you if before anything was said, if you knew the whereabouts of any of the fruits of the crime involving Frank Salverino nad Sophie Salverino?
“A. No, I did not.
“Q. At that time, did you know there was a purse and a billfold missing that belonged to Mrs. Salverino ?
“A. Yes.
“Q. I will ask you, sir, if Captain Fritz gave this Defendant a warning before a conversation was begun with him ?
“A. Yes.
“Q. Will you tell the jury what warning was given this Defendant?
“A. He was advised that he didn’t have to make a statement at all, but that if he did make one, it could be used against him on the trial of the offense, and he was advised that he had a right to an attorney. That’s about all.
“Q. After that, did Captain Fritz, yourself, and M. G. Hall have a conversation with this Defendant ?
“A. Yes.
“Q. Will you tell the Judge what that conversation was, please, sir ?
“A. Captain Fritz talked with the Defendant and asked the Defendant if he wanted to tell what happened and the Defendant said he would be willing to tell what happened and Captain Fritz said to go back down to the room with the officers and tell them what happened.
“Q. Was this done?
“A. Yes, it was.
“Q. How did you go about taking down what he told you?
“A. I copied it down in longhand on a piece of paper and I typed it up after that.
“Q. You wrote it down in longhand first, yourself, and then you typed it up, yourself ?
“A. Yes, I did.
“Q. Before you started talking to him, did you give him any type of warning?
“A. I told him the same thing Captain Fritz did, that is, that he didn’t have to make a statement, but if he did, it could be used against him in the trial.
“Q. After you had typed up this memorandum of what he told you, did you have a witness come in and witness taking the statement?
“A. Yes, I did.
“Q. Who was that person, please?
“A. He was a newspaper reporter, Warren Bosworth.
“Q. Is he a police officer?
“A. No, he is not.
“Q. Will you tell us what he told you regarding this offense — what he told you happened ?
“A. He said he was down at the Good-luck hamburger place on Dolphin with a boy named Coffee where they met Sammy Joe Jones, Jr., and Sammy had an automobile and said he was going to make some money and wanted to know if they wanted to go along and they did go along and Sammy drove over to his girlfriend’s house where he kept a pistol and picked it up and drove around awhile before he decided to hit the grocery store on, I believe, Scyene Road and parked the car behind the grocery store near some apartments and found that the grocery store was closed and Sammy said, ‘We will wait until the people leave out,’ and Sammy went beside the grocery store and had the gun and when the people came out of the store, Sammy fired the gun and then we ran back to the car where Coffee was in the car and Sammy came up a few minutes later with the woman’s purse.
“Q. Where did he say they threw the purse ?
“A. He said Coffee was driving and went on Hatcher Street and Sammy advised Coffee to throw the purse away and the best he could remember, it was a creek somewhere om Hatcher Street.
“Q. All this you’re talking about, was that all reduced to writing?
“A. Yes.
“Q. In other words, you made written memorandum on what you just related to us?
“A. Yes sir.
“Q. And after you’d taken this statement or memorandum, did Warren Bos-worth witness it, witness the taking of that?
“A. Yes, he did.
“Q. You say he told you that it was on a drainage ditch that Coffee had thrown the purse out, at a drainage ditch where it intersected with Hatcher?
“A. No, he told me a creek that intersected Hatcher near the projects, near the grocery store.
“Q. Did anything happen with this information ?
“A. Well, some detectives and I later went out to look for this purse.
“Q. Was it dark by then ?
“A. Yes, it was.
“Q. About what time did you all arrive at the place he described?
“A. I guess maybe around 10:00 o’clock.
'‘Q. Did you look for the purse?
“A. Yes, we did.
“Q. Did you find the purse?
“A. We did not.”
On cross-examination :
“Q. And he didn’t say that he’d like to talk to an attorney?
“A. No sir.
“Q. And no lawyer called on him?
“A. He was permitted one if he wanted one.
“Q. He didn’t call anyone that you know of, did he ?
“A. Not to my knowledge.
* * * * * *
“Q. Tell us what warning you gave.
“A. The warning was written out on the statement.
“Q. What did you tell him?
“A. I told him he didn’t have to make a statement, but that if he did, it could be used against him on the trial of the case and I advised him of the right to attorney and at the time he said he didn’t want to see one.
“Q. Who all was present when you told him that?
“A. Warren Bosworth, the newspaper reporter, and Detective Hall and myself.
“Q. Detective Hall would have heard you say this?
“A. Yes sir.
“Q. And Mr. Bosworth would have heard you say this?
“A. Yes sir.”
Captain J. W. Fritz testified in part:
“Q. Captain, at the time you talked with him, did you at that time know of any of the whereabouts of the fruits of the crime — the purse?
“A. No, we did not, not until I talked to him.
“Q. Did he tell you what had happened ? “A. Yes sir.
“Q. Prior to your having a conversation with him, did you give him any type of warning ?
“A. Yes sir.
“Q. Tell what warning you gave him.
“A. I told him he didn’t have to make a statement if he didn’t want to, but any statement that he made could be used against him at the trial of his case and, also, that he could have an attorney.
“Q. Did he want a lawyer?
“A. Not at that time.
“Q. Did he tell you what happened?
“A. Yes sir, he told me about the robbery and told me about his part in it.
“Q. Did he tell you what happened to the purse that had been taken in the robbery?
“A. Yes, sir, he said that they had driven around off Hatcher and near the projects and threw the purse near a slough.”
And on cross-examination he testified:
“Q. Did Palmer Rayford have a lawyer with him at the time ?
“A. No.
“Q. Did you tell him he could have a lawyer if he wanted one ?
“A. Yes sir.
“Q. Did he tell you he wanted a lawyer?
“A. He indicated he didn’t want one at the time.
“Q. Did he tell you he didn’t want one ?
“A. I don’t remember the exact wording. I just remember telling him he could have a lawyer if he wanted one and he indicated he didn’t want one.
“Q. Well, he didn’t indicate that he didn’t want a lawyer, did he ?
“A. He indicated he didn’t want one.
“MR. HENDLEY: Your Honor, I believe he’s arguing with the witness.
“THE COURT: All right.
“Q. What do you mean he didn’t indicate that he didn’t want one?
“A. He didn’t make any indication that he wanted one.
“THE WITNESS: I told him that any statement could be used against him and that he didn’t have to make one, but that it could be used against him, and he could have a lawyer if he wanted one.
“Q. Did you tell him in his hearing that he couldn’t talk to his mama?
“A. I didn’t.
“Q. Did you tell him he was not going to talk to a lawyer?
“A. I didn’t; I said he could have one any time he wanted to.
“Q. He didn’t, did he?
“A. Not to my knowledge, but he could have.”

Detective Preston Parks, the arresting officer, testified that on the morning of March 10, 1965, he and Captain Fritz had a conversation with appellant at the homicide bureau and further testified in part:

“Q. Will you tell what that conversation was about?
“A. The Captain told Palmer Rayford that we couldn’t find the purse ‘from what you told us,’ and we needed to know again, and he said, ‘Go out Hatcher to the drainage ditch — ■’
“MR. TODD: Will my objection go to this, Your Honor?
“THE COURT: Yes, sir.
“THE WITNESS: — and my partner said, ‘which one?’ And he said, ‘The one at the end of Hatcher where Spring comes in by the graveyard.’
“Q. With this information, where did you go?
“A. We went to where Hatcher and Watts Walk comes together.
“Q. Did you go there?
“A. Yes sir.
“Q. Did you find the purse?
“A. Yes sir.
“Q. I will ask you to look at State’s Exhibit No. 1 and ask you if you can identify that?
“A. That is the purse that we found out there.
“Q. The contents, are those part of the contents found out there also ?
“A. Yes sir.
“Q. Will you tell the jury where you found this purse?
“A. This purse was hung in a tree where, as you go down Hatcher and turn right, there’s a drainage ditch running parallel with Watts Walk and where they come together, you go up Watts about forty yards to this, where this purse was hanging in a tree.
“Q. Was it open or closed?
“A. It was open and the contents were spilled on the ground.
“Q. Will you look at State’s Exhibit No. 2, and I’ll ask you where you first found these ?
“A. These credit cards and personal papers were in the billfold that were in the purse.
“Q. Were they a portion of the stuff that had fallen out of the purse?
“A. Yes sir.”

After the court had ruled that the confession was admissible and it had been introduced before the jury, appellant was allowed to testify before the court in the jury’s absence. He did not testify before the jury.

He testified before the court that neither Captain Fritz nor anybody else advised him that he did not have to make a statement if he did not want to, or that he could have a lawyer or that any statement he made could be used against him. Except for the fact that he was not taken before a magistrate before being interrogated, all of the testimony of appellant relating to the vol-untariness or admissibility of the confession was controverted by the testimony of the officers.

Failure to take appellant before a magistrate did not render his oral statement inadmissible, no causal connection between such failure and the fact that the statement was made being shown. Dugger v. State, Tex.Cr.App., 402 S.W.2d 178; Ward v. State, Tex.Cr.App., 399 S.W.2d 567; Ferrell v. State, Tex.Cr.App., 397 S.W.2d 86; Nixon v. State, Tex.Cr.App., 406 S.W.2d 445.

Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was decided after the confession was made but prior to the trial at which it was admitted in evidence.

We overrule the contention that the oral confession of appellant was not admissible under the holding of the Supreme Court in Miranda v. State of Arizona, supra, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, or under the Texas Statutes relating to oral confessions.

Our holding that the confession was admissible disposes of appellant’s contention that the purse and contents found as a result thereof were not admissible under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

The court in his charge to which no written objections were made instructed the jury to acquit the defendant unless they believed and found beyond a reasonable doubt that appellant:

“* * * was warned by the officers receiving such statements that he did not have to make such statement and if he did, it could be used against him in the trial of this cause, and that said statement was freely and voluntarily given by the said Palmer Rayford, Jr. without any force, threats, or coercion or otherwise on the part of the said officers receiving same, further that the said Palmer Rayford, Jr. was warned that he had a right to a lawyer if he wanted one and that he was accorded every right to have an attorney if he wanted one, and unless you find and believe beyond a reasonable doubt that these said factors existed prior to the time said oral statements were received, * *

The trial court did not err in overruling appellant’s motion for instructed verdict of not guilty.

Ground of error No. 6 is: The Court erred in not including in its charge to the jury relating to the confession of the defendant that the police authorities must have warned this defendant that he could be silent and did not have to say a word, in addition to the charge given.

In view of the charge given and the absence of objection in writing, as required by Art. 36.14 V.A.C.C.P., this ground of error is overruled.

The remaining ground of error complains that at the hearing on the issue of punishment to be assessed the trial court erred, in permitting testimony as to the prior probated sentence for Burglary received by appellant.

The evidence reflects that the period of probation had not expired. The evidence was admissible under the provisions of Articles 38.29 and 37.07, subd. 2(b), V.A. C.C.P. (1965).

The judgment is affirmed.

DISSENTING OPINION

MORRISON, Judge.

I need not address myself to the question of the sufficiency of the warning given appellant prior to the giving by him of a statement or confession, because there is another and far more fundamental error in this case which should not permit an af-firmance of this conviction.

Robbery is one offense and theft is another. Facts showing theft will not support a conviction for robbery. There were a number of cases which demonstrated the distinction prior to Van Arsdale v. State, 149 Tex.Cr.R. 639, 198 S.W.2d 270. See Reese v. State, 91 Tex.Cr.R. 457, 239 S.W. 619; Harris v. State, 118 Tex.Cr.R. 597, 39 S.W.2d 888; Bryant v. State, 122 Tex.Cr.R. 385, 55 S.W.2d 1037; Flores v. State, 145 Tex.Cr.R. 134, 166 S.W.2d 706; and Alaniz v. State, 147 Tex.Cr.R. 1, 177 S.W.2d 965. Still other cases have distinguished robbery from theft from the person. See Hammond v. State, 121 Tex.Cr.R. 596, 49 S.W.2d 779; Anderson v. State, 132 Tex.Cr.R. 255, 103 S.W.2d 753; and Alsobrook v. State, 134 Tex.Cr.R. 322, 115 S.W.2d 668.

Since Van Arsdale v. State, supra, this Court has in Woods v. State, 153 Tex.Cr.R. 457, 220 S.W.2d 644; Polk v. State, 157 Tex.Cr.R. 75, 246 S.W.2d 879; Bell v. State, 167 Tex.Cr.R. 460, 321 S.W.2d 302; and Cassidy v. State, 168 Tex.Cr.R. 254, 324 S.W.2d 857; said, “In Van Arsdale v. State, 149 Tex.Cr.R. 639, 198 S.W.2d 270, we had occasion to point out that a distinction between robbery and theft from the person lies in the fact that in robbery there must exist the actual or threatened violence to the person antecedent to the robbery, which is not true of theft from the person.” Polk v. State, supra. See also Gallagher v. State, 34 Tex.Cr.R. 306, 30 S.W. 557; Johnson v. State, 35 Tex.Cr.R. 140, 32 S.W. 537; Jarrott v. State, 96 Tex.Cr.R. 239, 257 S.W. 256; and Gonzales v. State, 136 Tex.Cr.R. 469, 126 S.W.2d 492.

The majority opinion quotes this unfortunate woman as saying she was scared. Of course she was scared, because her husband had just been shot, but there is not a scintilla of evidence that there was any actual or threatened violence to her. She ran to the aid of her dying husband, and on the way set her purse down because its presence in her hand hampered her in her efforts to assist her husband. If appellant’s co-defendant took the purse from where the woman had placed it, he became guilty of theft, but certainly not robbery.

No matter how guilty this accused may be, he has a constitutional right to be tried for the offense which he committed and not another. The cases cited above are but a few in which this Court has steadfastly adhered to this principal.

I respectfully dissent to the affirmance of this conviction for the reasons stated above.

ONION, J., joins in this dissent.

      . Art. 38.22 has since been amended and now provides, in part, that the statement made while defendant was in jail or other place of confinement or in the custody of an officer shall be admissible if
      “ (e) It be made orally and the defendant makes a statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.” The act of the Legislature amending
      Art. 38.22 and other Articles of the 1965 Code of Criminal Procedure contains the further provision:
      “See. 41. Saving Clause. Any confession admissible at the time it was made shall be admissible at any trial subsequent to the effective date of this Act.” Acts 60th Legislature (1967) Ch. 659, pp. 1732, 1752.


author: MORRISON, Judge.

text:
    James Medley GREEN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 40832-40834.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1968.

      Jon N. Hughes, Houston, (on appeal only) for appellant.
    Carl S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

Each of the above three cases charges appellant with separate offenses of robbery by assault. The punishment in each case is twenty years, and no effort was made to cumulate the sentences. They will be consolidated in this Court for the purpose of brevity.

Appellant plead guilty in each case. When these cases reached this Court on appeal, appellant was not represented by counsel. This Court instructed the trial court to see that appellant’s trial counsel prepared a brief in his behalf or to appoint another attorney to act for him on appeal. We called the trial court’s attention to the holding of the Supreme Court of the United States in Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.

The Honorable Jon N. Hughes of Harris County has been appointed and has filed an able brief in which he presented all arguable legal points apparent in the records of the cases and arising from his independent investigation. We find no merit in any of them.

Appellant has been furnished a copy of such brief. The mandates of Anders v. California, supra, and Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501, have been thoroughly met, and the judgments are affirmed.


text:
    O. D. FLEMING, Appellant, v. The STATE of Texas, Appellee.
    No. 40562.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1968.

      C. Benton Musslewhite, Lufkin, for appellant.
    James I. Perkins, County Atty., Rusk, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

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

The record has been approved, and the case will now be considered on the merits.

Appellant’s first ground of error is the trial court’s failure to permit him to procure the deposition of Constable McLain who was unable to personally appear and testify because of ill health. Appellant failed to comply with the requirements of Article 39.02, Vernon’s Ann.C.C.P., with regard to the taking of depositions by a defendant, and because of such failure his ground of error is overruled. Langston v. State, Tex. Cr.App., 416 S.W.2d 821.

His second and third grounds of error are the court’s failure to grant an instructed verdict because the State failed to show a “sale” of whiskey by appellant. State’s witness Vernon Lee' Hamilton testified that he “purchased a pint of * * * Whiskey from (appellant) and paid (appellant) $5.00” for the whiskey. This testimony was sufficient to show a “sale”. See Ridinger v. State, 146 Tex.Cr.R. 286, 174 S.W.2d 319; 50 Tex.Jur.2d 234.

Appellant’s fourth and fifth grounds of error which are urged separately relate to answers by State witnesses which he contends were so inflammatory as to require a mistrial. The answers were by Jerry Jones, a Liquor Control Board agent: “I first asked him if he had been to O. D. Fleming’s place”; and by Vernon Lee Hamilton: “I have been down there (referring to appellant’s house) many times before.” Objection was made to each statement immediately; each objection was sustained' and the careful trial court promptly instructed the jury not to consider the answers. We are unable to agree that the answers set forth above, coupled with the court’s prompt instruction, constitute reversible error.

As his sixth and seventh grounds of error, appellant complains of the failure of the court to find, as a matter of law, that entrapment existed, and to submit an instruction to the jury on the defense of entrapment. The evidence showed that Vernon Lee Hamilton was given $5.00 by Jerry Jones, and told to go to the appellant and buy some whiskey with the money. In clear view of Jones and two other witnesses, Hamilton did as he was told and purchased a bottle of whiskey from the appellant at appellant’s home.

It is apparent from the record that appellant was selling whiskey in a dry area, and the fact that an officer (or agent of the State) furnishes the opportunity for, or aids the accused in such enterprise, constitutes no defense to such prosecution and requires no charge on the issue of entrapment. Vela v. State, Tex.Cr.App., 373 S.W. 2d 505, and cases cited therein at 507; Cox v. State, 169 Tex.Cr.R. 332, 333 S.W.2d 849; Ridinger v. State, supra. Neither is entrapment shown in such circumstances as a matter of law. Dumont v. State, Tex.Cr.App., 398 S.W.2d 129.

Appellant’s eighth ground of error is based on the court’s failure to include a definition of “sale” in the charge. Such failure was not error. Ridinger v. State, supra.

Finding no reversible error, the judgment is affirmed.


author: DICE, Judge.

text:
    O. C. WILKINSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40889.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1968.
    Rehearing Denied Feb. 14, 1968.

      Paul Wisdom, Jr., Dallas, (Court Appointed on Appeal Only), for appellant.
    Henry Wade, Dist. Atty., Ross Teter and William S. Mason, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for robbery with firearms; the punishment, twenty-five years.

Insanity as a defense was interposed by appellant.

Witnesses were called by the state and the appellant, including two psychiatrists, who testified on the issue.

The jury, in their verdict, found appellant sane at the time of trial and that he was sane at the time of the alleged offense and guilty of the offense of robbery, as charged in the indictment.

Appellant urges as error that portion of the court’s charge on insanity which gave application to the “right and wrong” test of insanity, under the M’Naghten rule.

No objection was made by appellant to the charge. However, we find no error in the charge, as the “right and wrong” test is the legal test of insanity used in this state. Ross v. State, 153 Tex.Cr.R. 312, 220 S.W.2d 137; Freeman v. State, 166 Tex.Cr.R. 626, 317 S.W.2d 726; and Bush v. State, 172 Tex.Cr.R. 54, 353 S.W. 2d 855. While we are aware that such test is not accepted in some jurisdictions, we adhere to our holding that such is the proper legal test to be used in this state.

We also overrule appellant’s contention that he was denied a fair trial because adequate psychiatric examination was not offered to him. The record reflects that the two psychiatrists who testified in the case—Dr. James Hall for the appellant, and Dr. John T. Holbrook for the state—had each observed and examined appellant on two different occasions, for approximately one hour each, before expressing their opinions in the case.

We also overrule appellant’s contention that the court erred in admitting in evidence the judgment in a preliminary sanity hearing because, as urged in appellant’s brief, the “prior sanity hearing contained the same defects as the main trial and denied the Defendant his liberty without due process of law, contrary to the fourteenth amendment to the United States Constitution as did the main trial.” The only objection made to the admission in evidence of the prior judgment was: “We object to it under the best evidence rule. It is apparently a copy of some court judgment.” T'he objection was not well taken, as the exhibit was a duly certified copy of the judgment under the hand and seal of the district clerk of Dallas County.

In oral argument before this court, appellant cites the case of Greer v. Beto, 379 F.2d 923 (Fifth Circuit) in support of his contention. In the Greer case it was held that the failure of defense counsel to offer testimony on the question of sanity at the trial on its merits was compounded by the introduction in evidence of the jury verdict in a prior sanity trial and made out a prima facie case of ineffective and inadequate assistance of counsel. We do not construe this case as supporting appellant’s claim of reversible error in merely admitting the prior judgment in evidence upon the main trial when there was testimony offered on the issue of insanity.

Error is urged on the ground that appellant was tried while dressed in jail clothing.

While, in the testimony, reference was made to appellant being dressed in “white coveralls,” no objection was made to the manner of his dress and there is no showing that he had other civilian clothing at hand. Under the facts, we do not consider Brooks v. State of Texas, et al., 381 F.2d 619, Fifth Circuit, 1967, which condemned the trial of an accused in jail clothing, as authority for a reversal of the conviction on the ground urged.

In the absence of a showing of injury or prejudice to appellant, no reversible error is perceived. Xanthull v. State, Tex.Cr. App., 403 S.W.2d 807.

Appellant’s last ground of error is to the court’s action in refusing his request to reopen the case after both sides had rested and the testimony was closed to permit appellant’s mother to testify and rebut certain testimony given by Dr. Hol-brook, who had been called by the state and testified on the issue of insanity.

The record reflects that the mother’s testimony was to be offered as impeachment of Dr. Holbrook’s testimony. Dr. Holbrook had been excused and was not then available in court to testify as a witness. Had the case been reopened, an indefinite delay would have resulted. While Art. 38.02, Vernon’s Ann.C.C.P., permits the court to allow testimony to be introduced at any time before argument, the matter of permitting either party to reopen the case is held to be discretionary. Adams v. State, 154 Tex.Cr.R. 92, 221 S.W.2d 264, cert. denied, 338 U.S. 906, 70 S.Ct. 302, 94 L.Ed. 558.

We find no abuse of discretion. The ground of error is overruled.

The judgment is affirmed.


text:
    Hoover L. COOK, Appellant, v. The STATE of Texas, Appellee.
    No. 40961.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1968.

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

DICE, Judge.

Appellant was convicted, under Art. 802b, Vernon’s Ann.P.C., of the subsequent offense of drunk driving, and his punishment was assessed at confinement in the Texas Department of Corrections for a term of five years.

Imposition of sentence was suspended by the court and appellant was placed on probation upon certain terms and conditions.

This is an appeal from the judgment of conviction at the time he was placed on probation. Art. 42.12, Sec. 8, Vernon’s Ann. C.C.P.

The record does not contain a transcription of the court reporter’s notes.

One bill of exception appears in the record, which complains of the trial court’s refusal to permit appellant to show a conflict in the testimony given by Officer Buchanan at the trial with that given by him at the examining trial.

The bill was approved by the court, with certain qualifications. Notice of the court’s qualification of the bill was given to appellant’s counsel, as required by Art. 40.09-6 (a), C.C.P., but no bystanders bill was filed by appellant.

As qualified, the bill reflects that Officer Buchanan testified at the trial that, after his arrest, appellant told him he had drunk two six packs of beer and that, in his examining trial testimony — a copy of which was among the papers filed in the cause, the officer testified that in the conversation with appellant after his arrest appellant did not disclose a definite number of beers he had consumed. In his qualification to the bill, the court certified that, upon the trial, appellant sought to show “by improper method and predicate” a conflict in the officer’s testimony, to which “improper impeachment methods” state’s counsel objected, and such objection was by the court sustained. The court further certified that several other attempts were made by appellant to show conflict in the officer’s testimony, “all being improper, in form and predicate,” and the court in each instance sustained the state’s objection.

In his brief, appellant urges one ground of error, which is as follows:

“The Appellant was not accorded due process of law as guaranteed under the United States and Texas Constitutions thru the admission of perjured testimony.”

Appellant insists that under the record he stands convicted upon perjured testimony which state’s counsel knew was false and which constitutes a denial of due process. Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9, and other federal authorities are cited by appellant, in support of his contention, which stand for the proposition that a conviction obtained upon testimony known by the prosecution authorities to be perjured is in violation of due process and cannot stand.

The record before us does not support the conclusion that Officer Buchanan gave perjured testimony at the trial. His mere contradictory statements would not have supported a conviction for perjury. King v. State, 112 Tex.Cr.R. 425, 16 S.W.2d 1072. See, also United States v. Goldberg, 290 F.2d 729, Second Circuit (1961).

Further, assuming that the officer’s testimony at the trial was false, the record does not show that the prosecution knew he was giving perjured testimony.

Such facts distinguish this case from Alcorta v. Texas, supra, relied upon by appellant.

The ground of error is overruled.

The judgment is affirmed.


text:
    Jackie Ray EASON, Appellant, v. The STATE of Texas, Appellee.
    No. 41039.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1968.
    Guy H. McNeely, Vernon McDaniel, Wichita Falls, for appellant.
    Sam Cleveland, Dist. Atty., Stephenville, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Murder without Malice under the provisions of Article 802c Vernon’s Ann.P.C.; the punishment assessed by the jury, two (2) years confinement in the Texas Department of Corrections.

It is appellant’s sole ground of error that the trial court erred in failing to charge the jury on the law of circumstantial evidence in response to his timely presented written objection.

It appears to be appellant’s position from the ground of error assigned in his brief filed in the trial court that there is no direct evidence identifying appellant as the operator of the motor vehicle that caused the death of Loyd Samson Brock as a result of a collision on U. S. Highway No. 281 at approximately 2:30 p. m. on Sunday afternoon, October 23, 1966, in Palo Pinto County. We observe, however, from appellant’s written objection to the court’s charge that it was his only contention at that time that there was no direct evidence to establish that the death of Loyd Brock resulted from the collision in question.

Norman W. Alston, a United States Army Captain, testified that on October 23, 1966, he was enroute to Fort Sill, Oklahoma with his family. He related that he traveled north behind a blue Thunderbird automobile on U. S. Highway No. 281 for approximately 12 or 13 miles, and that at the time of the fatal collision he was 50 to 75 yards behind the said Thunderbird. He further testified that just prior to the collision the blue Thunderbird ahead swerved to the left, crossed the center line of the highway, and crashed almost head-on with an automobile driving south. Captain Alston stopped immediately and checked the occupant of each car. It was his testimony that there was only one person in each car, and no one got out of either automobile before his inspection of them.

It is true that Alston was not asked if he could identify the appellant as the driver of the Thunderbird, but his testimony followed that of a number of other state’s witnesses who arrived on the scene within minutes of the collision and who positively identified appellant as the sole occupant of the Thunderbird and described his injuries.

Further, on cross-examination Captain Alston was asked:

“Q. Did I understand you to say that you moved the occupant of the Thunderbird, which we take to be Mr. Eason (appellant) ?
“A. I only moved him to straighten his head up, because his head was down, like that, and he was leaning over and I straighten him up.”

Jimmie Davis of Perrin, Texas, testified that he was driving south behind Brock’s automobile approximately a quarter of a mile at the time of the collision and observed the smoke resulting from the crash. He related that upon his arrival he went to the Thunderbird and observed that the appellant was its sole occupant and that he did not see anyone getting out of or leaving the automobile after his immediate arrival.

Mrs. Joan Arnold, a registered nurse on her way to work in Mineral Wells, came upon the scene within minutes after the collision. She identified appellant as the only person in the Thunderbird. She administered first aid to both the appellant and the more seriously injured Loyd Brock. She testified that she would not allow anyone to remove appellant from his automobile until the ambulance arrived because of his injuries. Mrs. Arnold was present when emergency treatment was administered to both men at Nazareth Hospital in Mineral Wells by a Dr. Hamilton and later rode in the ambulance that carried both men to Fort Worth.

There is other evidence supporting the recited testimony that appellant was the only person seen in the Thunderbird automobile, but we do not deem it essential to set it forth.

Appellant’s intoxication at the time of the collision was clearly established by the testimony of Mrs. Arnold, a registered nurse, and the ambulance driver, as well as by expert testimony based on the results of a blood test taken by a physician in a Fort Worth hospital approximately three hours after the collision with the written consent of the appellant. We do not understand appellant to question the sufficiency of the evidence as to his intoxication at the time of the collision.

We further observe that Mrs. Grace Brock testified that her healthy, able-bodied nineteen-year-old son, Loyd Brock, left her home in Perrin at 2:15 p. m. (some fifteen minutes before the collision) for Graford in a blue and white Chevrolet. Jimmie Davis related that while following the deceased’s automobile on U. S. Highway No. 281 the deceased drove “steady” on the proper side of the highway.

Mrs. Arnold, the nurse, testified that upon arrival at the scene the deceased was pinned in the car, not breathing well and bleeding from the mouth, and had a deep gash in the left side of his head “clear to the brain.” She kept his mouth and air passage open first with a pocket knife and later with a spoon so that he could breath.

Other testimony offered by the state reflects that the deceased expired in the ambulance approximately five minutes before reaching a Forth Worth hospital less than three hours after the collision. After clearance of deceased’s body through the Tarrant County Medical Examiner’s office, the body was brought to the Haltom’s Funeral Home in Jacksboro.

We reject appellant’s contention that the court erred in failing to charge on circumstantial evidence.

An instruction on circumstantial evidence need not be given when the state’s evidence is direct, or where the facts proved are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony. 31 Tex.Jur.2d, Instructions, Sec. 123, p. 682.

We conclude that the facts stated constitute direct evidence that the appellant was the driver of the Thunderbird automobile in question and that deceased died as a result of injuries received in said collision. If we be in error, then we observe that the facts are in such close juxtaposition to each other as to eliminate the necessity of the giving of a charge on circumstantial evidence. See De La O v. State, Tex.Cr. App., 373 S.W.2d 501.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Theodore Alexander HORMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 40978.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1968.
    M. Gabriel Nahas, Jr., George Ellis, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Ted Nirtz, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

Upon his plea of guilty to the offense of driving a motor vehicle upon a public highway while intoxicated, appellant was on June 14, 1966, found guilty and his punishment was assessed by the court at 20 days in jail and a fine of $100.00.

No judgment was entered, the court having granted appellant’s application for probation, and he was placed on probation for a period of one year. (Art. 42.13 Vernon’s Ann.C.C.P.)

The conditions of such probation required by Section 5 of said Art. 42.13 were imposed, one being that appellant “commit no offense against the laws of this or any other state or the United States.”

Upon application of the state, the court caused the arrest of appellant (Sec. 6(a) of Art. 42.13, supra) and on May 16, 1967, after hearing, found that he had violated said term of his probation.

We find no merit in the contention that it was incumbent upon the state to offer as an exhibit the order made by the same judge in the same court finding appellant guilty; assessing his punishment and placing him on probation, and showing the conditions imposed.

Under such facts the judge could take judicial notice of such order and no proof thereof was required. Baker v. State, 79 Tex.Cr.R. 510, 187 S.W. 949; Armstrong v. State, 120 Tex.Cr.R. 526, 46 S.W.2d 987; 23 Tex.Jur.2d 47, Evidence — Sec. 27.

The serious question presented is whether the trial court abused his discretion in revoking probation upon the evidence adduced at the hearing on the state’s motion to revoke.

The state’s motion, upon which the court directed the arrest of appellant and conducted the hearing, alleged that appellant violated the condition that he “commit no offense against the laws of this or any other state or the United States” in that he “was arrested on April 4, 1967, for suspicion of Driving While Intoxicated. He was involved in a minor accident Case U-94607 and placed in Harris County Jail.”

It is apparent that this was not an allegation that appellant committed an offense against the laws but rather an allegation that he was arrested on suspicion of driving while intoxicated. Also the record reflects that no competent evidence was offered at the hearing showing that appellant did drive his motor vehicle on a public highway while intoxicated.

It follows that the trial court abused his discretion in revoking probation on the state’s motion and the evidence adduced in support thereof. See Padillo v. State, Tex. Cr.App., 420 S.W.2d 712.

The order revoking probation is reversed.


text:
    Carvin JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40893.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1968.

      Paul J. Chitwood, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Stauffer, Al Valvoord and William S. Mason, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

It has now been shown that appellant’s brief was filed in the trial court, but was inadvertently omitted from the record sent to this Court. Our prior opinion is withdrawn, and the following substituted in lieu thereof.

The offense is robbery with firearms; the punishment, 20 years.

Appellant’s sole ground of error is that “in charging the jury as to the law of the case, the Honorable Judge (committed fundamental error) by charging that should the jury find that the defendant took property of the complaining witness with intent to appropriate the same to the use and benefit of the said complaining witness, they should find the defendant guilty.”

No objections to the charge were made, and no motion in arrest of judgment was submitted.

It has been the uniform holding of this Court under Article 36.19, V.A.C.C.P. and its predecessor, Article 666, Vernon’s Ann. C.C.P., that a case will not be reversed on appeal because of an error in the charge of the court to which no objection was made, unless the error was calculated to injure the rights of the defendant or unless it appears that he has not had a fair and impartial trial. Aston v. State, 120 Tex.Cr.R. 534, 48 S.W.2d 292; Barfield v. State, 118 Tex. Cr.R. 394, 43 S.W.2d 106; McCue v. State, 75 Tex.Cr.R. 137, 170 S.W. 280; Bonds v. State, 71 Tex.Cr.R. 408, 160 S.W. 100; and Coleman v. State, 68 Tex.Cr.R. 182, 150 S.W. 1177.

Appellant’s motion for rehearing is overruled, and the judgment is affirmed.


text:
    Ex parte Lew A. KANAZIZ.
    No. 41018.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1968.
    Lew A. Kanaziz, pro se.
    Carol S. Vance, Dist. Atty., James C.. Brough, Asst. Dist. Atty., Houston, Crawford C. Martin, Atty. Gen., Monroe Clayton, Asst. Atty. Gen., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The petition for writ of habeas corpus presented to this court and ordered filed attacks the validity of the conviction for robbery affirmed by this court in Kanaziz v. State, 382 S.W.2d 485.

The state and the Respondent, Dr. George Beto, Director of the Texas Department of Corrections, move that the Petitioner’s application be dismissed, the grounds being that such petition as well as the petition previously presented to the Judge of the 174th District Court of Harris County each fails to comply with Art. 11.07 Vernon’s Ann.C.C.P. as construed in Ex parte Young, Tex.Cr.App., 418 S.W. 2d 824, and Ex parte Eiland, Tex.Cr.App., 420 S.W.2d 955, in that each is sworn to be true only to the best of the applicant’s knowledge and belief.

Certified copies of the petition presented to the District Court and the Court’s order thereon sustain the state’s contention. Such certified copies reflect that the district judge denied permission to file the application on September 22, 1967.

The petition before this court was received October 20, 1967, and thereafter on November 1, 1967, an affidavit was received from applicant with the request that it be considered with his petition.

The affidavit was sworn to on October 20, 1967, hence it is apparent that it was not before the District Judge in connection with the petition he denied leave to file on September 22, 1967.

We deem it appropriate in this connection to say that we see no reason why, especially in cases where a prior conviction in another jurisdiction used for enhancement is attacked, the judge conducting the post-conviction habeas corpus hearing may not consider affidavits such as the Federal Courts are authorized to do under Title 28, Sec. 2246, U.S.C.A.

The petition for writ of habeas corpus filed in this court is dismissed without prejudice to applicant’s right to obtain a hearing in the 174th District Court by petition meeting the requirements of Art. 11.07 C.C.P., 1965, as amended, and the opinion of this court in Ex parte Young, supra.

CONCURRING OPINION

MORRISON, Judge.

While I agree with the disposition of this application, I wish to call to petitioner’s attention the fact that this Court has before it an affidavit executed by the Chief Appellate Counsel for Oakland County, Michigan, in which he swears that a thorough search of the records of the Circuit Court of said county reveals that petitioner was not represented by an attorney at the time he was convicted of the offense alleged for enhancement in paragraph two of the indictment in Kanaziz v. State, supra.

Such affidavit will be made available to petitioner when he makes his new application to the trial court.

I concur.


text:
    Willie Lee BRYANT, Appellant, v. The STATE of Texas, Appellee.
    No. 40964.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1968.

      John Richard Howard, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is murder without malice; the punishment, 5 years.

The indictment alleged that appellant, with malice aforethought, killed Robert Lee Moore by shooting him with a gun. The case was submitted to the jury as an accidental killing by appellant, while wil-fully committing an assault upon the deceased with a pistol which he was unlawfully carrying on or about his person. (Art. 42 P.C. and Art. 1151 Vernon’s Ann.P.C.)

The jury rejected the plea of self-defense and found that the assault and killing were without malice.

Seven grounds of error are set forth in defendant’s brief filed in the trial court. The first five relate to the overruling of motions made or filed on the day of the trial.

The first motion was to require the state to produce the grand jury minutes pertaining to the proceeding which resulted in the return of the indictment.

In the absence of any showing of a particularized need for such record, the trial judge did not err in overruling the motion. Bryant v. State, Tex.Cr.App., 397 S.W.2d 445.

The second motion was for Discovery, Inspection and Copying (Art. 39.14 Vernon’s Ann.C.C.P.).

The trial court ordered the state to produce photographs taken at the scene of the killing, and received a commitment from the state that it did not have the gun and did not intend to introduce the slug or bullet. Copy of the autopsy report was tendered appellant’s counsel and he was advised by the court that the autopsy report was a public record. Also the trial court received a commitment from the district attorney that he had no written statement of the appellant which he proposed to use at the trial.

The refusal of the court to grant the motion as to offense reports and tangible evidence not shown to have been available at the time, if in fact such existed, is not ground for reversal.

The third motion was for an examining trial.

Appellant having been indicted August 22, 1966, his motion for an examining trial presented March 8, 1967, came too late. Trussed v. State, Tex.Cr.App., 414 S.W.2d 466; Ash v. State, Tex.Cr.App., 420 S.W.2d 703.

The fourth and fifth motions were for a continuance. The motions were addressed to the discretion of the trial court and it is not shown that he abused his discretion in overruling them.

The sixth ground of error relates to “Have you heard * * * ” questions propounded to a character witness called by the defense. No reversible error appears. Villarreal v. State, Tex.Cr.App., 384 S.W.2d 891; Ellis v. State, Tex.Cr.App., 379 S.W.2d 342; Vance v. State, Tex.Cr.App., 365 S.W.2d 182; Clowers v. State, Tex.Cr.App., 365 S.W.2d 14.

The remaining ground of error relates to oral objections to the charge of the court which are insufficient. Art. 36.14 V.A.C.C.P.; Smith v. State, Tex.Cr.App., 415 S.W.2d 206.

The judgment is affirmed.