author: CULVER, Justice. GRIFFIN, Justice

text:
    L & G OIL COMPANY, Appellant, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. A-9399.
    Supreme Court of Texas.
    May 28, 1963.

      Houghton Brownlee, Jr., Austin, H. M. Harrington, Jr., Longview, for appellant.
    Waggoner Carr, Atty. Gen., Austin, Cecil C. Rotsch and Linward Shivers, Asst. Attys. Gen., Lloyd Armstrong and Clyde E. Willbern, Houston, Powell, Rauhut, Mc-Ginnis, Reavley & Lochridge, Frank Douglass, Austin, for appellees.
   CULVER, Justice.

This is a direct appeal from a judgment of the 126th District Court of Travis County, denying appellant a temporary injunction in a cause involving the validity of administrative orders of the Railroad Commission.

The record in this appeal shows that during 1962 the Railroad Commission, in conjunction with the Attorney General’s office and the Department of Public Safety, conducted an investigation in the East Texas field to determine the extent of the violation of the rules and regulations of the Commission and the conservation laws of the State of Texas by certain oil operators in the drilling of illegally slanted oil wells.

In the Kilgore district within the last eight or ten months the Commission personnel have conducted approximately 420 inclination surveys and approximately 97 directional surveys. The Commission in the past has been obtaining a survey company to do this type of work whenever a directional survey was required, as the Commission does not have the necessary personnel or equipment. The cost has been paid by the Attorney General out of a trust fund accumulated for that purpose. Approximately 750 wells have been shut down as a result of the violation of the Commission’s rules and regulations reflecting a daily production of approximately 11,000 barrels and there are approximately 150 more wells that should be surveyed. The Commission itself operates upon an appropriation from the Legislature and has no funds available for running inclination or directional surveys.

In order to deal with this problem, the Commission on August 17, 1962, gave notice that on September 20, 1962, a hearing would be had in the Driskill Hotel in Austin “to consider the matter of changing Statewide Rule 54 so that the bottom hole locations of oil and gas wells in the State of Texas will be more accurately known to the Commission”. Such hearing was held, and pursuant thereto on November 2, 1962, the Commission entered an order amending Rule 54 to include § V, which reads as follows:

“V. Surveys on Request of Other Operators:
“A. The Commission, at the written request of any operator in a field, shall determine whether a directional survey, an inclination survey, or any other type of survey approved by the Commission for the purpose of determining bottom hole location of wells, shall be made in regard to a well complained of in the same field.
“1. The complaining party must show probable cause to suspect that the well complained of is not bottomed within its own lease lines, and must also show that he is the owner or operator of a well located within the field.
“2. Unless the Commission cam make the appropriate survey with its own personnel and equipment, the complaining party must agree to pay all costs and expenses of such survey, and shall assume all liability, and shall be required to post bond in a sufficient sum as determined by the Commission as security against all costs and risks associated with the survey.
“3. The complaining party and the Commission shall agree upon the selection of the well surveying company to conduct the survey, which shall be a surveying company on the Commission’s approved list.
“4. The survey • shall be witnessed by the Commission, and may be witnessed by any party, or his agent, who has an interest in the field.
“5. Nothing in these rules shall be construed to prevent or limit the Commission, acting on its own authority, in conducting spot checks and surveys at any time and place for the purpose of determining compliance with Commission rules and regulations.”

We are concerned in this appeal with whether or not the Commission may, in order to enforce its valid rules and regulations and to prevent the illegal, production of oil and gas, adopt the method set forth in § V.

We construe § V as contemplating that the survey authorized thereunder will be the act, and under the direction, of the Commission, and in the discharge of its statutory duties and powers.

Appellant L & G Oil Company, a trade name under which H. G. Lewis, Jr. operates and produces oil, has a well on the Alexander lease. Tidewater Oil Company has a producing well on the Castleberry lease, which adjoins the Alexander léase on the west. ’ Both leases are located in'the East Texas Oil Field in Gregg County.

On November 29, 1962, Tidewater requested the Commission to authorize a directional survey oh the L & G Oil Company No. 2 M. E. Alexander well, in conformity with § V of Statewide Rule 54. The application of Tidewater alleged that there is probable cause to suspect that L & G’s well is not bottomed within its own lease lines, and that while the. surface location of the well is 331 feet from the west lease line, an old survey filed by L & G with the Commission, showed the bottom hole location to be only six feet from the west line.

On December 4th the Commission granted the application, its order reading in part as follows: ,

“The Commission being unable to make a directional survey with its own personnel and equipment, hereby authorizes Tidewater Oil Company to make the directional survey through the use of an approved surveying company, subject to the following conditions : .
“1. Tidewater Oil Company shall pay all costs and expenses of the survey.
“2. .Tidewater. Oil Company shall post bond for the full'value of $25,000 payable to L. & G. Oil Company, as security against all costs and risks-associated with the survey, which bond must be approved by the Commission before becoming effective and to remain effective until released at the conclusion of the surveying operation. Commission approval and release shall be recorded on the face of this order.
“3. Tidewater Oil Company, in addition to acceptance of the bonding. condition, shall assume all liability without limitation for damages to such well resulting from the directional surveying operations, including the preparation of the well for survey, and the replacing of the well to the same condition as existed when operation's commenced.
“The Commission approves Tidewa-, ter Oil Company’s-selection pf’Sperry-Sun Well Surveying Company to run the- directional -survey., ; '
“Such survey shall be witnessed by Railroad Commission "personnel, and it may be witnessed by' any party,' or his agent, who has an interest in the field.
“Authority to conduct the directional survey in the manner and subject to the conditions above set out is granted on this the 4th day of December, 1962, and it is so ordered.
“IT IS FURTHER ORDERED, and L & G Oil Company is so directed, that interference by such operator in the conduct of the directional survey authorized herein shall result in the severance of pipeline connections for such lease.”

L & G challenges the validity of this order on the ground that the Commission has attempted to usurp the rule-making power of the Supreme Court and before it may conduct or order a directional survey to ascertain the bottom hole location, it must resort to the court for that authority as provided by Rule 167 of Texas Rules of Civil Procedure relating to discovery as amended in 1957. In support of that contention it cites the case of Hastings Oil Company v. Texas Company, 149 Tex. 416, 234 S.W.2d 389. Apparently L & G .is claiming that the Commission, absent court permission, would not have the authority to enter upon L & G’s property and conduct the survey even with the Commission’s own personnel and equipment. Hastings makes no such holding. In that case the Texas Company alleged that- Hastings' had so deviated its well that it had penetrated the subsurface of the Phillips tract, which amounted to a trespass. After :a-hearing the trial court found that there was probable cause to believe that the- allegation of the Texas Company was correct. We.held merely that the court was authorized -to order -.a .directional survey as an integral part of the temporary injunction under Rule 737 relating to discovery. Hastings Oil Company was insisting that the court was vested with no such authority.

Admittedly-if Tidewater had sought authority for this action independently and for its own purposes it would have had to resort to the court just as Texas Company did in the above case. But that is not the situation here. The directional survey has been authorized by the Commission upon the request of Tidewater, which actually is'in the nature of a complaint, but it is not for the private advantage and benefit of that company. While incidentally the location of the bottom hole of L & G’s well may be of some value to Tidewater, yet that is not the reason for the issuance of this order to any extent or degree. To the contrary the information is sought by the Commission in accordance with § V of Rule 54, to enable the Commission to enforce its regulations and to discover and prevent the illegal production of oil and gas. The fact that the courts have a discovery procedure for private litigants does not require the Railroad Commission, in the performance of its statutory duty to enforce conservation laws of the state to follow the same procedure. Rule 167 requires that an action be pending before discovery relief will be granted. The Legislature has delegated to the Railroad Commission broad and extensive powers to regulate and control the drilling for and production of oil and gas to the end that these natural resources be conserved and that the interest of.the public as well as individual operators be.. protected. For instance, Art. 6029, Vernon’s Ann.Civ.St., provides that the Commission shall not only make but.shall enforce rules, regulations and orders for the conservation of these resources, inchid-ing rules, regulations and orders to prevesit waste, to require dry or abandoned wells to be plugged; for the drilling of wells and preserving the record thereof;. and to-require wells to, be drilled and operated in such manner as to prevent, injury to adjoining property. Surely the Commission, invested . with all of these powers , and responsibilities, is not required to bring a suit each time that it seeks to make an investigation or inspection as to whether its rules and regulations are being enforced. Such a requirement has, so far as we know, never been urged before and if adopted would cripple the Commission and incapacitate it from carrying out and performing the duties imposed upon it by legislative command. It would effectively nullify the statutory enactments. We expressly hold that Rule 167 has no application here.

Next, L & G says that the adoption of § V as an amendment to Rule 54 is invalid because in giving notice of its intention to amend Rule 54, the Commission did not advise the public or the industry as to how the rule would be amended or that it would be amended by the discovery procedure as was thereafter provided in the amendment that was adopted. We believe there is no merit in this objection. The hearing was called on the Commission’s own motion and gave notice that it was called “to consider the matter of changing Statewide Rule 54 so that the bottom hole locations of oil and gas wells in the State of Texas will be more accurately known to the Commission.” The notice further provided :

“The scope of this Hearing shall be limited to the consideration of the amendment of Statewide Rule 54.
“PURSUANT To said Hearing, the Commission will enter such rules, regulations, and orders as in its judgment the evidence presented may justify.”

As a result of that hearing § V was adopted as an amendment to Rule 54. Since the meeting was called for the purpose of considering what amendment should be adopted to carry out the expressed objectives it would be wholly unreasonable to require that the notice necessarily set forth all possible amendments that might be considered and adopted.

L & G urges that State v. Blue Diamond Oil Corporation, Tex.Civ.App., 76 S.W.2d 852, no writ history, is particularly apposite here. To the contrary we believe it to be clearly distinguishable. The notice of the hearing in that case spoke of the prevention of physical waste in the production of crude oil and the protection of the rights of the crude oil producers. The court held that the notice was insufficient to apprise interested parties that as a result of the hearing the Commission would adopt rules and regulations affecting those dealing with refined products obtained from crude oil. In the case here the notice apprised all concerned that the hearing was called for the purpose of considering how Statewide Rule 54 might be changed so that bottom hole locations of oil and gas wells would be more accurately known to the Commission.

L & G next contends that Rule 54 as amended is invalid because it does not provide for notice or hearing before the Commission authorizes a directional survey in accordance with the amendment (§ V). We overrule this contention. The order here under attack does not authorize the Commission or anyone else to take charge of plaintiff’s property. Matters of title and possession are not involved. It is no more and no less than an inspection to determine the bottom of L & G’s well, and according to the testimony the only way that can be ascertained accurately is by a directional survey.

We do not agree that the Commission in this case has dispensed with the notice requirement of 6036a and 6038. The former article reads: “No rule, regulation or order shall be adopted by the Commission under the provisions of this Act or of Title 102 of the Revised Civil Statutes of Texas, 1925, as amended, dealing with the conservation of oil and gas and the prevention of the waste thereof, except after hearing upon at least ten (10) days notice given in the manner and form prescribed by the Commission; * *

The latter article provides: “No order establishing or prescribing rates, rules and regulations shall be made except after hearing and at least ten days and not more than thirty days notice to the person, firm, corporation, partnership, joint stock association, or association, owning or controlling and operating the pipe line or pipe lines affected.” In our opinion neither of these statutes have to do with the action of the Commission here taken under § V of Rule 54.

The Legislature has delegated to the Commission the power not only to enforce the statutory mandate for the conservation of oil and gas, but also the power to make rules and orders necessary to carry into effective operation the legislative purposes. Rules and orders of the Railroad Commission made under authority of a statute are considered under the same principles as if they were the acts of the Legislature for the reason that the power was delegated to the Commission by the Legislature and in that sense the Commission is the agency of the Legislature. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424.

Here the Commission, by authorizing the directional survey, is seeking to determine whether the rules, regulations, or orders of the Commission heretofore lawfully promulgated are being violated. This duty is imposed upon the Commission by Art. 6049c, § 5. It is not a proceeding to penalize L & G for the violation of any rule, regulation or order of the Commission or for the violation of any statute. Such a proceeding must be brought by the Attorney General or by the proper county or district attorney. Art. 6036.

The United States Supreme Court was faced with a similar question in Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088. The Court there held that § 304(a) of the Federal Food, Drug, and Cosmetic Act, which permitted multiple seizures of misbranded articles “when the Administrator has prohable cause to believe from facts found, without hearing, * * * that the mis-branded article is dangerous to health, or that the labeling of the misbranded article is fraudulent, or would be in a material respect misleading to the injury or damage of the purchaser or consumer,” was not unconstitutional under the Due Process Clause of the Fifth Amendment to the United States Constitution. The Court spoke as follows:

“It is said that these multiple seizure decisions of the Administrator can cause irreparable damage to a business. And so they can. The impact of the initiation of judicial proceedings is often serious. * * * The harm to property and business can also be incalculable by the mere institution of proceedings. Yet it has never been held that the hand of government must be stayed until the courts have an opportunity to determine whether the government is justified in instituting suit in the courts. Discretion of any official may be abused. Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. * * * ”

We also notice the decision in Humble Oil & Refining Company v. L & G Oil Company, Tex.Civ.App., 259 S.W.2d 933, wr. ref. n. r. e., where action of the Commission was invoked under Rule 54. In that case the Court of Civil Appeals held that notice was not necessary to the owner of the mineral estate under a 1-acre tract where the Railroad Commission, under certain conditions as provided in Rule 54 granted a permit to the owner of the surface estate of that 1-acre tract to drill on that tract and directionally deviate the well from its normal course so as to reach the productive horizon embraced within the adjoining mineral estate that belonged to the owner of the surface of the 1-acre tract. Rule 54 provided that the Commission would grant a permit or directional deviation where conditions on the surface prevent or unduly complicate the drilling at a regular location and by necessary implication provided that notice and hearing would not be required in such a situation. As pointed out in the concurring opinion in that case the character of authority exercised by the Commission under its Rule 54 is to see that, the well lawfully authorized, is drilled in accordance with its rules and regulations. That same authority is attempted to be exercised here by the Commission, under the provisions of the same rule as amended.

Just why L & G so vigorously resists the running of this directional survey is not clear. Even the possible unrecouped damage spoken of in Ewing v. Mytinger & Casselberry, Inc. is not possible here. Every protection has been afforded to this appellant. It is chargeable with none of the expense. A bond of $25,000 has been posted to secure it against any loss or damage to the well and according to the testimony any damage is a remote possibility. In addition to that Tidewater has assumed responsibility for any damage to L & G’s property without limitation. L & G could look to no such protection had the Commission elected to run the survey with its own employees. L & G does not object on the ground that the survey will reveal to the “prying eyes” of competitors any private information. Since the survey is to be run through the casing, it can disclose only the location of the bottom of the well. There will be no “killing” of the well as asserted; there will be no loss of production; there will be no expense to L & G; there will be no damage without full indemnity. Actually the complaints boil down solely to that of a technical trespass and entry on L & G’s leasehold. What they are saying is that the Commission has no right to direct Sperry-Sun Well Surveying Company to enter upon its property and run this survey either with or without notice and hearing.

Continually throughout its brief L & G charges that the effect of this order is to authorize Tidewater to trespass upon this property and physically seize its well which in effect it says amounts to a limited receivership.

Literally construed the order as drawn might be subject to that implication. It is improperly worded in that it speaks of authorizing Tidewater to make the directional survey through the use of an approved surveying company and does not follow the procedure authorized in the amendment to Rule 54. Tidewater did not ask that it be empowered to conduct the survey, but on the other hand sought that the Railroad Commission run or have run the survey in accordance with the amending section and expressly agreed to assume all the financial liability thereby imposed. It requested the Commission, if unable to make the survey with its own personnel and equipment, to approve the nomination of Sperry-Sun Well Surveying Company to run the survey, which company was on the Commission’s approved list. While we assume that the Commission intended to issue its order in conformity with § V of Rule 54, nevertheless we hold that the order, which in so many words authorizes Tidewater to make the survey, is invalid and of no force and effect. For that reason only, we must reverse the judgment of the trial court.

We do further hold, however, that an order drawn in conformity to Rule 54 as amended and in compliance with Tidewater’s request, which conformed to the rule, would be valid and within the authority of the Railroad Commission under the powers granted to it by the Legislature. There would thus be afforded no basis for any foreboding that possession of appellant’s property would be delivered over into the hands of Tidewater even momentarily. That company, so far as the running of the survey is concerned, would merely occupy the position of a bystander.

L & G relies on Francisco v. Board of Dental Examiners, Tex.Civ.App., 149 S.W.2d 619, wr. ref., for the proposition that vested property rights may not be destroyed by an ex parte administrative order. That case is not in point here. No vested property rights are involved. In Francisco the Court held that the statute providing for revocation of the license of a dentist on proof of conviction of the dentist for felony involving moral turpitude, which does not provide for notice, hearing- or review of the order, is unconstitutional as denying due process of law. Before the Board could properly act it must determine a number of questions such as the identity of the licensee, the sufficiency of the record to show a final conviction, whether the crime of which the licensee is convicted is properly classified as of the grade of felony and whether it involves moral turpitude. We again emphasize that L & G is charged with no offense and the survey is not assessed as a penalty. Nor does the Commission seek to transfer or destroy any property rights. The order as properly written would authorize no one to take charge of L & G’s property except for the limited purpose of running the survey and the authority for that purpose would not be granted to Tidewater but to Sperry-Sun, an independent organization which is to perform this service under the direction and for the benefit of the Commission. In this employment it will be acting for and on behalf of the Commission and in the capacity of its agent.

Finally, in its last point, again on the predicate that Tidewater is authorized physically to take charge of and “kill” the well and conduct a directional survey, L & G charges that the order is invalid because it illegally and arbitrarily provides that any interference by L & G “under the physical seizure by the third party, Tidewater, of appellant’s well” would result in the severance by the Commission of the pipe line connection from the entire lease. For several reasons this point is untenable. In the first place it is wholly predicated on an incorrect statement. In the second place, if that portion of the order is arbitrary and illegal L & G has the right, if it should interfere and prevent the running of the directional survey, to resort to the courts for relief. This portion of the order, even conceding that the Commission has not the authority to impose that penalty, in no way affects the validity of the remainder of the order.

While L & G does not invoke the provisions of Art. 6049c, § 18, this statute has been called to our attention. The section reads:

“All persons entrusted with the enforcement of the orders, rules, and regulations of the Commission shall be regular employees of the State of Texas and paid by the State of Texas, and no other persons other than the regular employees of the State of Texas shall be charged with or relied upon for the performance of any such duties.”

We believe that this section has no application to the situation before us. The matter here does not involve the enforcement of any orders, rules, and regulations of the Commission. Sperry-Sun, as agent of the Commission, is not empowered to take any enforcement steps. It is merely authorized to make this survey under the Commission’s supervision. The survey is being made for the purpose of determining whether any rules or regulations or orders of the Commission are being violated. It is merely a preliminary step. Any enforcement of rules and regulations is a matter to be considered later. Section 5 of the same article provides that the Commission is not only empowered to but has the duty to inquire into whether the laws of Texas or the rules and regulations of the Commission are being violated and to require the oil properties to be inspected.by the agents of the Commission as often and for such periods as the Commission may deem necessary.

To sum up therefore we hold that the notice given by the Railroad Commission was sufficient to authorize the adoption of the amendatory § V and that Rule 54 as amended is not invalid because notice and hearing are not required before action is taken under and in conformity therewith. We further hold that the order herein under consideration is improperly worded and therefore invalid in that it authorizes Tidewater to make the survey through the use of a surveying company.

We therefore must reverse the judgment of the trial court in its denial of the injunction prayed for by L & G and remand the cause to that court for the entry-of a judgment in conformity with the views herein expressed.

GRIFFIN, Justice

(concurring).

I concur with the holding of the majority that the order of the Commission entered December 4, 1962, authorizing Tidewater to enter on L & G’s lease and conduct an inclination survey by using Sperry-Sun Surveying Company, is an invalid order and its enforcement must be enjoined.

I also concur with the majority holding that the notice given by the Commission was sufficient to authorize the Commission to promulgate Sec. V of Rule 54 on November 2, 1962. This is wholly without regard to the legality of all the provisions of Section V.

It is difficult to know just exactly what the opinion holds regarding the powers of the Commission under Sec. V.

It seems to me that Sec. V only authorizes the Commission to empower the complaining party to make such survey using approved well surveying companies. In addition the complaining third party must pay all costs of such survey, and enter into a bond to be approved by the Commission as security against all costs and risks associated with the survey.

This authorized survey is not to be made under the direction and control of the Commission, but apparently under the direction and control of the complaining third party.

Sec. V makes no provision that the information obtained as a result of that survey be made available to the Commission. Since the third party making the survey is to bear all expenses for making the survey, and give bond as security against all costs and risks associated with the survey, I can only assume that the third party will obtain the information resulting from the survey and do with such information whatsoever it pleases, and can even deny the Commission access to such information. There is nothing in Sec. V to prevent such action.

The provision that the survey shall be witnessed by the Commission “and may be witnessed by any party, or his agent, who has an interest in the field,” merely requires the presence of these witnesses at the time and place of running the survey. If Sec. V be construed as only authorizing the Commission or its agents to make the survey, why the necessity of the provision that the survey may be witnessed by Commission personnel ? Since when has it become necessary for authority for the Commission personnel to witness its own acts? Also, why the necessity of the last paragraph of Sec. V to reserve to the Commission the right to make surveys and inspections ?

And this gets down to my other objection to Sec. V; which is that it contains no requirement that the operator who owns the lease and on which lease the well to be surveyed is located, shall have prior notice and be afforded an opportunity to present his side of this picture, prior to the actual surveying of his well.

That the appellant has a property right in his lease and in the Alexander No. 2 and a right to prevent the entry on his lease of third parties without his consent is fundamental. Womack v. Womack (1943), 141 Tex. 299, 172 S.W.2d 307; Spann v. City of Dallas (1921), 111 Tex. 350, 235 S.W. 513 (1).

The majority seeks to uphold the failure of the Commission to give notice to, and provide a hearing for, L & G by citing the case of Ewing v. Mytinger & Casselberry, 399 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088.

The majority failed to quote the court’s language whereby it sustained the action of the Drug Administrator. That language is as follows:

“When the libels are filed the owner has an opportunity to appear as a claimant and to have a full hearing before the court. This hearing, we conclude, satisfies the requirements of due process.
“At times a preliminary decision by an agency is a step in an administrative proceeding. We have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective. See Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694; Inland Empire [Dist.] Council v. Millis, 325 U.S. 697, 65 S.Ct. 1316, 89 L.Ed. 1877; Opp Cotton Mills v. Administrator of Wage & Hour Division of Dept. of Labor, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624.”

This declaration of law is in accordance with the general holding that so long as a hearing is provided for before the owner’s rights are forfeited, the requirement of due process is fulfilled. 12 Tex.Jur.2d p. 449, Sec. 100; 12 Am.Jur. p. 307, Sec. 612.

To the same effect see Trapp v. Shell Oil Co. (1946), 145 Tex. 323, 198 S.W.2d 424 (17); Glenn Oaks Utilities, Inc. v. City of Houston (1950), 161 Tex. 417, 340 S.W.2d 783(1); United States v. McCrillis (1952) (1st Cir.), 200 F.2d 884(4); Magnolia Petroleum Co. v. Carter Oil Co. (1955) (10th Cir.), 218 F.2d 1(4, 5); Cantu v. Parr (Tex.Civ.App.1960), 338 S.W.2d 182(2), dismissed w. o. j. 161 Tex. 296, 340 S.W.2d 481; 1 Tex.Jur.2d 666, Sec. 24; 12 Tex.Jur.2d 445, Sec. 98, 12 Tex.Jur.2d Sec. 100, p. 449, 12 Am.Jur. Sec. 612, p. 307.

The majority, without citation of any authority, say that the provisions of Art. 6036a, Vernon’s Texas Civil Statutes, do not apply so as to require notice. To me, this holding is in the face of the very plain words used in 6036a, which do require notice, except in an emergency. There is no claim of an emergency in our case. The Commission did not cut off this well from the pipeline, and as far as this record shows it is being permitted to produce and its product is being legally marketed at the present time.

The majority opinion states: “The order here under attack does not authorize the Commission or anyone else to take charge of plaintiff’s property”! Pray tell me how the survey is to be made by anyone other than L & G without taking charge of the lease, the well and the equipment therein, pulling all the equipment from the well, injecting a substance to equalize the pressure in the well. The testimony in the record is uncontradicted that all the above things are necessary in order to run the directional survey.

It is well-settled law that “Rules and regulations of the Railroad Commission cannot effect a change or transfer of property rights.” Nale v. Carroll (1956), 155 Tex. 555, 289 S.W.2d 743, 745; Marrs v. Railroad Commission (1944) 142 Tex. 293, 177 S.W.2d 941 (8, 9); Magnolia Petroleum Co. v. Railroad Commission (1943), 141 Tex. 96, 170 S.W.2d 189, 191; Gregg v. Delhi-Taylor Oil Corp. (1961), 162 Tex. 38, 344 S.W.2d 411(2, 3); Novak v. Bruner (Tex.Civ.App.1959), 320 S.W.2d 439, writ refused.

In the concurring opinion in the case of Humble Oil & Refining Co. v. L & G Oil Co. (Tex.Civ.App.1953), 259 S.W.2d 933, writ refused, n. r. e., it is said: “Regardless of the character of notice and regardless of the extent of hearing had the Commission could not grant authority for one person to trespass on the property of another.”

In view of the wording of Sec. V, I cannot construe it in any other manner than that it was intended only for the purpose of setting up a procedure whereby a third person may be authorized to carry out the duties imposed on the Commission by the Legislature.

Sec. V was not needed to give the Commission power to inspect the well or to determine the bottom hole location.

All parties agree the Commission has had this power for many years. Art. 6049c confers this power by the use of the following language: " * * * to require any well, lease * * * belonging to or under the control of any such person (developers, producers, and sellers of petroleum products) to be inspected or gauged by the agents of the Commission whenever and as often and for such periods as the Commission may deem necessary; and the Commission and its agents and the Attorney General and his assistants and representatives may likewise examine the books and records.” This Article first became law in 1932.

The majority also says that Art. 6049c, Sec. 18, requiring that only regular employees of the State of Texas and paid by the State of Texas, shall be entrusted with the enforcement of the orders, rules and regulations of the Commission.

I maintain that a reading of Title 102 shows that the Legislature clearly intended that in the enforcement of our conservation laws as to oil and gas, only employees of the State and paid by the State should be used. By Art. 6032 the Legislature has provided a tax to be known as the Oil and Gas Enforcement Fund, and has also expressly provided, “The funds derived from this tax shall, so far as hereinafter provided, be used for the administration of the conservation laws of this State relating to oil and gas.” While it cannot affect the present case, I have just been handed a copy of H. B. 476, of the current session of the 58th Legislature. I am reliably informed by the Legislature employees that this bill has been passed by both houses and sent to the Governor for signature.

The effect of this bill as stated in the caption prohibits the Attorney General from accepting money from third parties for the purpose of investigating or prosecuting any matter whatsoever. If signed by the Governor, this will close down the Trust Fund heretofore used by the Attorney General in paying for surveys of East Texas wells heretofore made by the Commission.

It also shows that the Legislature does not approve of the provisions of Section V, permitting third parties to pay for surveys of other’s wells, when demanded by such third parties. The Railroad Commission was not created to further the interests of third parties, but of the public. To permit third parties to have the Commission carry out discovery to benefit the third parties, by paying the expenses of such discovery, is contrary to our public policy and to the laws found in Title 102, creating and empowering the Commission to act only for public good.

I cannot construe Sec. V of Statewide Rule 54, as amended, as providing only for the Commission to make inclination or directional surveys of wells, for the following reasons

1. The majority opinion states that Art. 6049c gives this power to the Commission.

2. The language of Sec. V. clearly shows it is for the purpose of empowering others than the Commission to make the surveys.

3. It specifically reserves to the Commission the right, acting on its authority to conduct spot checks and surveys at any time and place for determining compliance with its rules and regulations. Why reserve this right if Sec. V is only to confer on the Commission the right to do those very things ?

4. It authorizes the Commission personnel to witness the survey. What is the necessity of authorizing the Commission personnel to witness its own acts?

5. As construed by the majority, the Commission did a vain and useless thing, and Sec. V does not confer any new power on the Commission.

6. The Commission had the power to require L & G to make a directional survey, under penalty of severing the pipeline connection should L & G not furnish a satisfactory survey.

The proper place for individuals and corporations to obtain information by discovery procedure is in the courthouse where, for over hundreds of years, proper safeguards have been developed for the protection of all parties. The information here sought by Tidewater was available to it under judicial procedure. Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389 (1950).

It is a sad day when the courts of this State surrender to boards and bureaus the power to conduct discovery procedures. And to allow a citizen or corporation, a potential foe in litigation, to go upon and take charge of another’s property without even so much as notice and an opportunity to be heard, is a clear violation of the due process clause of the Texas and Federal Constitutions.

For all of the above reasons, I would hold Sec. V invalid. This would reach the same result as the majority, but on entirely different reasons.

GREENHILL, J., joins in this opinion.

      . See Oficial Report to House of Representatives by its General Investigating Committee.

      . Rule 167, amended in 1937 in conformity to the holding in the Hastings case to permit entry upon designated land.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    EMPLOYMENT ADVISORS, INC., Petitioner, v. W. P. SPARKS, Jr., Respondent.
    No. A-9518.
    Supreme Court of Texas.
    May 15, 1963.
    Rehearing Denied June 19, 1963.
    Nielsen & Pakis, Waco, for petitioner.
    Copeland & Walker, Waco, for respondent.
   PER CURIAM.

This is an action for damages based upon the breach of a rental contract by a lessee. The lessor as plaintiff recovered a judgment in the trial court and the Court of Civil Appeals affirmed. 364 S.W.2d 478.

It is asserted by petitioner (lessee) that the trial court did not submit the proper issues whereby the damages accruing to the respondent for the period of time extending from the date of trial to the date of the expiration of the lease contract could be properly measured. The case was submitted to the jury on July 21, 1962, and the lease will expire on May 31, 1963. A period of approximately ten months and ten days was thus involved. The trial court awarded to respondent the full rentals called for in the lease ($90.00 per month), as the jury answered “0” dollars to Special Issue No. 2 which read as follows:

“From a preponderance of the evidence, if any, what do you find to be the amount of money Plaintiff (respondent) will receive, if any, for the property in question after the use of due diligence, if any, to obtain tenants from the date of trial to June 1st, 1963?”

It is petitioner’s contention that the proper measure of damages for the period from date of trial to date of expiration of the lease was the difference in the amount of rentals contracted for in the lease and the rental value of the premises for the remainder of the term, which would be the reasonable cash market value of a lease on the premises for a period of ten months and ten days — from July 21, 1962, to June 1, 1963. See, John Church Co. v. Martinez (1918), Tex.Civ.App., 204 S.W. 486, wr. ref., opinion on rehearing, p. 489; Annotation, 85 L.Ed. 352; 32 Am.Jur. 157, Landlord and Tenant, § 161, 1962 Pocket Part, p. 16.

We express no opinion as to the correctness of petitioner’s contention because its objections to the charge of the court did not distinctly point out to the trial judge that Special Issue No. 2 submitted an assertedly improper measure of damages. Rule 274, Texas Rules of Civil Procedure.

The application for writ of error is refused, no reversible error.


author: DICE, Commissioner.

text:
    Roy Herbert DELK, Appellant, v. The STATE of Texas, Appellee.
    No. 35731.
    Court of Criminal Appeals of Texas.
    May 1, 1963.
    Rehearing Denied. June 12, 1963.

      Clayton, Martin & Harris, Amarillo, for appellant.
    Naomi Harney, County Atty., Richard W. Brainerd and Nolan K. Read, Jr., Asst. Dist. Attys., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for negligent homicide in the second degree; the punishment, a fine of $250.

The prosecution grew out of an automobile collision, in the city of Amarillo, between a “1952-1953” pickup truck driven by appellant and a Chevrolet automobile driven by Mrs. Mae Threlkeld Pace, the deceased. The collision occurred at the intersection of Buchanan Street and South East Fifteenth Avenue. At the time, appellant was driving north on Buchanan Street and Mrs. Pace was driving her vehicle west on Fifteenth Avenue. In the collision Mrs. Pace received certain injuries, from which she died.

The information was in two counts, which alleged separate unlawful acts by appellant in the operation of his vehicle at the time of the collision.

In the first count it was alleged that upon arriving at the intersection, appellant failed to stop in obedience to a stop sign erected on Buchanan Street, before driving his vehicle into the intersection.

The second count alleged that appellant failed to yield the right-of-way from the stop sign at the intersection to the automobile driven by the deceased, which was proceeding along and upon a through street, approaching the intersection from another direction so closely as to constitute an immediate hazard.

The two unlawful acts appear to have been alleged under the provision of Article 6701d, Sec. 73(b), V.A.C.S., which reads:

“The driver of a vehicle shall likewise stop in obedience to a stop sign as-required herein at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed.”

Both counts were submitted to the jury by the court, and a general verdict was. returned by the jury finding appellant guilty as charged.

At the trial the state called, among other witnesses, city officers B. H. Anderson and James T. Carver, who went to the scene of the collision and investigated the accident. From their testimony it was shown that the point of impact between the two vehicles was at approximately the center of the intersection. Anderson placed the point of impact in the center and Carver placed the point five or five and one-half feet north of center. After the impact, the Chevrolet automobile driven by the deceased spun completely around and remained in the intersection. There was extensive damage to the front of the vehicle which was described as partially impact damage and partially drag damage. The appellant’s pickup, after impact, traveled in a northwest direction across a curb and came to rest in a yard. It had been struck on the right fender behind the bumper. Neither vehicle made skid marks prior to impact but there were skid marks from the point of impact to where each vehicle came to rest. It was shown that both Buchanan Street and Fifteenth Avenue were 32 feet wide.

In response to questions by appellant on cross-examination, Officer Anderson testified that in his opinion the pickup was traveling 20 or 25 miles per hour at the time of the collision.

Testifying as a witness in his own behalf, appellant admitted that he was driving the pickup on the occasion in question but swore that he did stop at the stop sign before the collision. He stated that after he had stopped and was proceeding north at between five and six miles per hour he observed the deceased about 100 to 125 feet away, approaching the intersection and driving on her left side of the road at a speed of between 40 to 45 miles per hour.

Appellant’s main contention on appeal is that the evidence is insufficient to sustain the conviction.

He first insists that the court erred in permitting Officer Carver to express his expert opinion with reference to the relative speed of the two vehicles at the time of the collision by testifying that, based upon his past experience, his examination of the scene of the collision, the vehicles involved, and their path of travel after impact, the appellant’s pickup was traveling as fast or faster than the deceased’s automobile at the time of the collision and to further testify, based upon his investigation of the collision and his opinion as to the relative speed of the vehicles, that in his opinion the appellant’s pickup did not completely stop at the stop sign prior to the collision.

It is appellant’s contention that the evidence is insufficient to sustain the conviction because the state failed to produce any direct testimony that he failed to stop at the stop sign or to yield the right-of-way and that his conviction rests solely upon the presumption or conclusion drawn by Officer Carver, based upon another presumption— which is unauthorized.

We need not pass upon the admissibility of Officer Carver’s opinion-testimony with reference to the relative speed of the two vehicles and his opinion that appellant did not stop at the stop sign, in view of the prior testimony elicited from Officer Anderson by appellant on cross-examination, when Officer Anderson expressed his opinion that appellant’s pickup was traveling between 20 and 25 miles per hour at the time of the collision.

We find the evidence sufficient to sustain the conviction.

The opinion-testimony elicited by appellant from Officer Anderson that his pickup was traveling between 20 and 25 miles per hour at the point of impact— which was between 16 and 21 feet from the stop sign, was sufficient to warrant a finding by the jury that appellant did not stop at the stop sign.

Appellant’s own testimony that after he stopped at the stop sign and was proceeding north at five or six miles per hour he observed the deceased, 100 to 125 feet away, approach the intersection at a speed of 40 to 45 miles per hour was sufficient to warrant a finding by the jury that he failed to yield the right-of-way to the deceased’s vehicle which was approaching the intersection from another direction so closely as to constitute an immediate hazard. There is an absence of any proof that appellant applied the brakes of his pickup prior to the collision.

The appellant’s conviction does not, as contended by him, rest solely upon a presumption based upon a presumption, but is supported by direct evidence that is sufficient to support the jury’s verdict.

We find no error in the court’s refusal to give appellant’s requested charge which would have instructed the jury to acquit him if they believed from the evidence that the deceased was driving on the left-hand side of the road prior to the collision. Such an instruction would have submitted an issue of contributory negligence, which is no defense to a charge of negligent homicide. Biscamp v. State, 142 Tex.Cr.R. 401, 154 S.W.2d 466.

The judgment is affirmed.

Opinion approved by the court.


text:
    Darvis Monroe MEADOWES, Appellant, v. The STATE of Texas, Appellee.
    No. 35789.
    Court of Criminal Appeals of Texas.
    May 15, 1963.
    Rehearing Denied June 19, 1963.
    Aynesworth & Mann, by Kenneth H. Aynesworth, Jr., King C. Haynie (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgou-rides and Gene D. Miles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 726d, V.A.P.C., for the unlawful possession of amphetamine; the punishment, one year in jail and a fine of $1,000.

Officer J. J. Strickland of the Houston police department, narcotics division, testified that on the day in question he drove to the 4300-block of Washington Avenue in company with his partner, Officer Jack Farrar, and a man by the name of James Frost. When they stopped, Frost got out of the car and went to a telephone booth in which appellant was standing. After the two engaged in a conversation, Frost returned to the car with appellant. When appellant got in the car and was introduced to Officers Strickland and Farrar, he asked: " What’s the holdup ? * * * I have got the bennies. Where is the money?”’ Strickland replied: T got the money but I am going to have to see the bennies first.’ ” Strickland and appellant then went to the telephone booth, where the latter reached in, got a paper sack, and handed it to Strickland, saying “ ‘Here they are.’ ” They then returned to the car, at which time Officer Strickland signalled to certain officers who had them under surveillance and who came to the car and placed appellant under arrest.

Officer Strickland then drove two blocks to Thompson Street and stopped beside a Cadillac automobile belonging to appellant. Appellant, at such time, opened the trunk of the Cadillac and removed a suitcase which was found to contain four plastic bags containing some pills. The brown sack and its contents, which appellant handed to Officer Strickland, together with the four plastic bags taken from the suitcase, were delivered to the city chemist for examination.

An examination and analysis by the chemist disclosed that the sack contained 20,300 five-milligram amphetamine tablets and the four plastic bags contained 500 eight-milligram and 2,700 ten-milligram amphetamine tablets.

After his arrest, appellant was taken to the police department, where he made and signed a written confession to Officer Strickland in which he admitted his possession of the amphetamine tablets. The statement was introduced in evidence by the state.

Testifying as a witness in his own behalf, appellant stated that on the occasion in question he was to deliver a package for his friend, R. L. Strickland, and be paid $10 for the delivery. Appellant testified that it was Strickland who placed the package in the telephone booth and that it was Officer J. J. Strickland who removed it from the booth. Appellant denied any knowledge of the four packages in the trunk of his car, stating that he did not know what was in the packages but that he was told they contained “Slim Time” pills, which were pills used for reducing and to stay awake.

Appellant also repudiated his confession and testified that he was not given the statutory warning by Officer Strickland or by anyone else. He also swore that he gave the confession because of pain he was suffering from a stomach ulcer, which he stated was aggravated by a police officer striking him in the stomach at the scene of the arrest.

Appellant’s testimony with reference to mistreatment by the officer was controverted by Officer Scholl, upon his being called by the state in rebuttal. Officer Strickland also testified that he gave appellant the legal warning before he made and signed the statement introduced in evidence.

We find the evidence sufficient to support the jury’s verdict, and shall discuss the contentions urged by appellant as grounds for the reversal of the judgment of conviction.

Appellant first contends, as was urged in his motion to quash, that the information is fatally defective because it failed to allege that the amphetamine was not a preparation for use in the nose and unfit for internal use.

The information charged that appellant did “unlawfully possess a dangerous drug, to-wit, amphetamine * *

Art. 726d, Sec. 2(a), V.A.P.C., in defining the term “ ‘dangerous drug,’ ” includes, among other drugs or preparations, the following :

“(2) Amphetamine, desoxyephedrine, or compounds or mixtures thereof, except preparations for use in the nose and unfit for internal use.”

Sec. 12 of Art. 726d, supra, provides:

“In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provisions of this Act, it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in this Act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.”

In Browning v. State, 161 Tex.Cr.R. 273, 276, 276 S.W.2d 522, we held that under a similar provision of Art. 726c, V.A.P.C. (now repealed) it was unnecessary to negative certain exceptions in the statute in charging the offense of unlawful delivery of barbiturates. See, also, McKnight v. State, 161 Tex.Cr.R. 472, 278 S.W.2d 150, and King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501.

Under the provisions of Sec. 2(a) (2) of the present statute, amphetamine is, as here-inabove shown, a dangerous drug, the possession of which is made unlawful under Sec. 3(d) unless obtained under certain other specific provisions of the act.

We are unable to agree that the exception in the statute with reference to preparations for use in the nose and unfit for internal use is a necessary part of the definition of the offense or descriptive thereof or essential to its definition so as to require that it be negatived in charging the offense.

The court instructed the jury in his charge that amphetamine is a dangerous drug and that, under the statute, when a dangerous drug is illegally possessed by a person he will be punished, as provided therein.

The court then instructed the jury that if they believed from the evidence beyond a reasonable doubt that appellant did on the date alleged “unlawfully possess amphetamine” to find him guilty. The jury was further instructed that if it found from the evidence or had a reasonable doubt thereof, that appellant received the amphetamine from another person and did not know the contents of the containers, to acquit him.

Appellant urges error in the charge because it did not define the term “unlawfully possess,” as used therein. In his objection appellant urged that it was a technical term which the court should define. Such term, in our opinion, is not a technical one which the court was required to define. No request was made by appellant that the court define the term “possess” or “possession.” If such request had been made, the terms should have been defined.

The court’s charge adequately instructed the jury as to the offense charged. No exception in the statute was invoked by appellant which required an instruction thereon. Appellant’s defense as to his lack of knowledge of the contents of the containers involved in the transaction was submitted to the jury in the charge.

Appellant objected to that portion of the charge which submitted to the jury the question of whether he was duly and legally warned before making the written statement on the ground that it “does not contain the essential element of the defendant having been given the proper legal warning by the person to whom the statement was made.”

The court instructed the jury that they could not consider the statement offered in evidence unless they believed from the evidence beyond a reasonable doubt that before making the statement appellant was warned by Officer J. J. Strickland. The state’s proof shows that Officer Strickland gave appellant the warning and questioned him and that Officer Scholl reduced the statement to writing.

In Sutton v. State, 166 Tex.Cr.R. 580, 317 S.W.2d 58, it was held that there was no irregularity in a confession where one officer gave the warning and questioned the accused and another officer who was present reduced the confession to writing. See, also, Brionez v. State, 168 Tex.Cr.R. 9, 323 S.W.2d 459. We find no error in the charge.

Appellant next complains that the court erred in permitting Chemist McDonald to testify as to the results of the analysis made by Chemist Metz under his supervision, over the objection that such was hearsay.

In Jackson v. State, 159 Tex.Cr.R. 228, 262 S.W.2d 499, a similar contention was overruled, in holding that a doctor under whose supervision a laboratory analysis was made by another could testify as to the result from the laboratory records.

We further observe that in the instant case Chemist McDonald not only testified from the records made by Chemist Metz but also testified from results of an analysis which he, himself, had run upon the amphetamine tablets.

Appellant next complains of the court’s ruling in permitting Officer Scholl to testify that on the night of his arrest appellant told him that, some ten days before, he had sold 2,000 pills to the man by the name of Jim for $20 a thousand — which was the price he paid for them, over appellant’s objection that such constituted evidence of an extraneous offense. The record reflects that appellant testified without objection that some ten days before his arrest he had delivered a large quantity of pills to the man named Jim. In view of this similar testimony, admitted without objection, no reversible error is presented. Crocker v. State, Tex.Cr.App., 336 S.W.2d 171.

Appellant’s remaining complaint is to certain jury argument of state’s counsel.

In the state’s opening argument, Prosecutor White stated:

“There is not room enough in the Statute if you just gave a day for each pill, 23,000. One thing that has kept our jury — that the Americans have loved their jury system about is because you are the kings on the throne. Now you can do something for your community.”

Appellant objected to counsel’s statement with reference to the jury doing something for the community, on the ground that such was improper and prejudicial, which objection was by the court overruled.

We construe such argument as nothing more than a plea to the jury by the prosecutor for law enforcement, which he has the right to make. Urteago v. State, Tex.Cr.App., 333 S.W.2d 133.

In his jury argument, appellant’s counsel stated:

“We haven’t heard from Mr. Frost on this thing. We certainly couldn’t use him, couldn’t try. I think the State could have very handily if they had wanted to, but we didn’t get to hear from him.”

Thereafter, in his closing argument, Prosecutor Miles stated:

“ * * * I didn’t want to talk about Jim Frost. Mr. Aynesworth asked where he is, why we didn’t bring him in here. He invited me to tell you about Frost.
“I will tell you, he is doing two years in jail and this was his supplier.”

Appellant objected to the remarks of state’s counsel — first, on the ground that it was outside the record, and, second, on the ground that appellant’s counsel had not asked where Jim Frost was but had mentioned that he was not present.

While state’s counsel should not have told the jury that Frost was in jail for two years, such statement appears to have been invited by the remarks of appellant’s counsel and does not present reversible error. See: 42 Tex.Jur., Trial — Criminal Cases, Sec. 285, page 361; Welburn v. State, 129 Tex.Cr.R. 323, 87 S.W.2d 259. The statement by counsel that appellant was Frost’s “supplier” also appears to be a reasonable deduction from the evidence.

The judgment is affirmed.

Opinion approved by the court.


text:
    David WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 35609.
    Court of Criminal Appeals of Texas.
    April 24, 1963.
    Rehearing Denied June 12, 1963.
    Roy A'. Scott, Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary, with a prior conviction for an offense of like character alleged for the purpose of enhancement; the punishment, twelve years.

The state’s proof was undisputed that on the date alleged the Second Baptist Church building in the city of Corpus Christi was broken into and burglarized. On Tuesday afternoon before the burglary, the pastor, Reverend Glen Norman, left the church, at which time all windows and doors were locked. The next morning when the church secretary came to work at 8 o’clock it was discovered that certain doors were open and windows were broken. A safe containing many church papers and between $150 and $175 in money had been removed from the building. An examination of the premises revealed that entry had been gained into the building through a second-floor window which was broken. The safe had been removed from the second floor of the building by carrying it down some stairs and outside, where it was loaded in a vehicle.

The following Saturday the missing safe was found at Flour Bluff just off Laguna Shore Road, near an abandoned pickup truck. When found, the safe was demolished, the back having been battered in with some type of instrument. Various church papers and envelopes were found scattered near the safe.

On Monday, a complaint was filed against appellant, charging him with the burglary and a warrant for his arrest was issued. Fie was arrested that night at 9:30 o’clock and taken to the city jail.

Constable John Haynes testified that he went to the jail on Tuesday at 1 p. m., and talked to appellant about the burglary. After they had talked for an hour and a half, at appellant’s request the officer took him to the district attorney’s office, where, after being duly warned by Assistant District Attorney Max Luther, appellant made and signed a written statement which was introduced in evidence by the state.

In the confession, appellant admitted that on the night in question he and his companion, Allen 'Greene Aycock, entered the church building by breaking a window and that they removed the safe therefrom. Appellant related that after they took the safe from the building they stole a panel truck, then loaded the safe in the truck and carried it to a point off the Laguna road at Flour Bluff. Appellant stated that they then opened the safe, took $165 in cash therefrom and, after dividing the money, left the safe and truck and departed from the scene in Aycock’s truck.

State’s witness Thomas E. Taylor testified that several days before the burglary the appellant and Allen Aycock talked to him about burglarizing the church and after the burglary they told him where the safe was located. He further stated that he gave such information to Deputy Constable Poulos, who, the record reflects, went with the witness to where the missing safe was found.

Testifying as a witness in his own behalf, appellant admitted that he had been previously convicted of the offense of burglary, as alleged in the indictment, but swore that he was not guilty of the burglary of the church in question. Appellant also repudiated his written confession made to Assistant District Attorney Luther and testified that he signed it because he was scared by reason of threats made against him by the city officers that if he did not confess they would take him to the Texas Rangers. Appellant stated that he was questioned in relays by the city officers from the time he was placed in jail at 9:30 Monday night until he was taken to the district attorney’s office the following day. He made no contention that he was threatened or mistreated after being taken to the district attorney’s office, but testified that the reason he signed the confession was because of threats made against him by the city officers before he was brought to the office.

Constable Haynes, called as a witness in rebuttal by the state, denied that any threats were made to appellant by the officers from the time he talked to him at the jail on Tuesday at 1 p. m., until he later made his confession in the district attorney’s office at 3 p. m.

City Officer Robert Garza was also recalled by the state and denied that appellant was questioned all of the night he was in jail but stated that he was interrogated no longer than two hours. Officer Garza further denied that any threats or force were used on appellant to persuade him to make a confession of the burglary.

The issue as to the voluntary nature of appellant’s confession was submitted to the jury by the court in his charge.

In submitting the issue, the court charged the jury that a confession to be admissible against a defendant must have been freely and voluntarily made after due warning by the person taking the same, and instructed the jury that if they believed from the evidence that the person taking the confession did not warn the appellant and further instructed:

* * * or if you believe from the evidence that such confession was not freely and voluntarily made, or if you believe the same was induced by duress, threats, coercion, fear, persuasion, or through any other improper influence, or if you have a reasonable doubt as to whether he was warned by the person taking such confession, as to whether same was freely and voluntarily made, or as to whether same was induced by duress, threats, coercion, fear, persuasion, or through any other improper influence, if any, imposed at any time or any place by the person taking same, or anyone else, on the defendant, then you will wholly disregard such confession, and consider it for no purpose whatever, and draw no inference nor conclusion therefrom and acquit the defendant, unless you believe from the other evidence in the case, if any, beyond a reasonable doubt, that the defendant’s guilt has been established of the offense charged in the indictment.”

Appellant objected to the court’s instruction on the ground that it did not charge the jury that if they believed that the confession was not freely and voluntarily made, or if they had a reasonable doubt thereof, to acquit him. Appellant apparently overlooks the testimony of the state’s witness Taylor which connected him with the burglary.

There being other evidence before the jury besides appellant’s confession which connected him with the burglary, an instruction to acquit if the jury believed the confession was not freely and voluntarily made would have been upon the weight of the evidence and improper. Martinez v. State, 140 Tex.Cr.R. 159, 140 S.W.2d 187, 153 S.W.2d 721.

Appellant also objected to the charge on the ground that it did not instruct the jury to disregard the confession if they found that at the time he signed it he believed that if he failed to do so he would be turned over to certain officers to remain in their custody until he did sign it, or if they found that when he signed the confession he was in fear of threatened brutal treatment when he left the district attorney’s office if he did not sign it.

Under the court’s charge, the jury was instructed to wholly disregard the confession if it was believed from the evidence, or there was a reasonable doubt thereof, that the confession was not freely or voluntarily made or was induced by duress, threats, coercion, fear, persuasion, or through any other improper influence, if any, imposed upon the appellant at any time or place by the person taking the same or by anyone else.

The charge, as given, adequately protected the rights of appellant, and we find no error therein. Gollihar v. State, 133 Tex.Cr.R. 491, 112 S.W.2d 1053.

Appellant complains that the court erred in permitting the state to offer proof in support of the allegation in the indictment of the prior conviction over his objection that he had stipulated the conviction.

Appellant testified fully regarding' the prior conviction, the punishment assessed, and the fact that probation was granted and later .revoked because of violation of its conditions. Having so testified without, objection, he is in no position to complain of the introduction of the records showing these facts.

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

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Lewis Elmer SPRADLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 35587.
    Court of Criminal Appeals of Texas.
    May 15, 1963.
    Rehearing Denied June 19, 1963.
    M. F. Cate, Morris Brin, Terrell, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $250.00.

The record having been perfected, our prior opinion dismissing the appeal is withdrawn, and we will now consider the case on the merits.

Highway Patrolman Peace testified that at approximately 7:00 P.M. on the night in question he met an automobile “driving straddle the center stripe,” turned around and gave chase; that as he pursued the automobile it drove completely to the left of the center stripe; that he turned on his siren and red light and was able to bring it to a halt within one half a mile. He stated that appellant, who was the driver, refused to get out, and when he finally succeeded in extricating him appellant had the odor of intoxicants on his breath, was unsteady on his feet, tried to urinate on the pavement in full view of the passing traffic, and expressed the opinion that appellant was intoxicated. He stated that the next day appellant did not recognize him as being the officer who had arrested him.

Jailer Calhoun testified that when appellant, whom he had known for more than 20 years, arrived with Officer Peace he observed that he was unsteady on his feet, smelled of alcohol, resisted being placed in jail, and expressed the opinion that he was intoxicated.

Appellant did not testify in his own behalf but called his son, who saw him last at 4:30 P.M. on the day in question and testified that he had not been drinking at that time. He also called J. R. Bumpass, who testified that he saw appellant at 5 :15 P.M. on the day in question and he showed no indication of intoxication. Grady Tait testified that he sold appellant gasoline in the afternoon “somewhere between six and seven o’clock,” and stated, “I don't know whether he had a drink or hadn’t had, whether he had a drink or not, but I do know that he was not under the influence of liquor.”

The State called Superintendent Hed-rick of the County Farm in rebuttal, and he testified that when appellant was brought to jail he smelled alcohol on his breath, that his assistance was required to place appellant in jail, and expressed the opinion that he was intoxicated.

The jury resolved what conflict there was in the evidence against appellant, and we find it sufficient to support the conviction.

We find no merit in appellant’s motion to quash the indictment because the same does not name the highway on which he is alleged to have driven.

We find one formal bill of exception to the following argument of the prosecutor, “When we have a man that is drunk coming through this County he needs to be handled. He needs to be held in offense and tell others that they cannot get up there in a beer joint and come through this County drunk.” The objection was made that there was no testimony as to a beer joint, which was overruled. The objection was repeated to any statement that appellant had been to a “beer joint,” and the prosecutor replied that he did not say that appellant had been to one, and continued, “I said you can’t let anybody get up in a beer joint.” We have concluded that the prosecutor violated no mandatory statute and injected no new and harmful fact into the case and, under the holding in Payne v. State, 164 Tex.Cr.R. 306, 298 S.W.2d 151, and the cases there cited, this was a plea for law enforcement and no reversible error is reflected thereby.

Any question about what the witness Calhoun had heard of appellant’s drinking was clearly invited by appellant’s counsel’s question, “You never heard of him taking a drink before, have you?”

In connection with appellant’s other complaints, we observe that where argument is not objected to, reversible error is not preserved.

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


author: WOODLEY, Presiding Judge.

text:
    Ex parte Levoy MUSICK.
    No. 35583.
    Court of Criminal Appeals of Texas.
    May 15, 1963.
    Rehearing Denied June 19, 1963.

      Bracewell, Reynolds & Patterson by Robert I. Peeples, Houston, for respondents.
    Trueman O’Quinn, Austin, C. C. Divine, Houston, for petitioner.
   WOODLEY, Presiding Judge.

This is an original petition for habeas corpus attacking an order of the Court of Civil Appeals for the First Supreme Judicial District adjudging the petitioner guilty of contempt and ordering his confinement in jail for 72 hours.

We set the matter for hearing upon the representation that Justices of the Supreme Court had expressed doubt as to their jurisdiction to issue the writ.

Bond was allowed and the case has been briefed and argued.

As we understand the record, a temporary injunction was issued in a trespass to try title suit pending in the IS 1st Judicial District Court of Harris County. The petitioner herein perfected his appeal from such temporary injunction but filed no supersedeas bond. The appeal is pending in the Court of Civil Appeals.

While the appeal was so pending, the petitioner refused to obey the injunction and affidavit was filed in the 151st Judicial District Court alleging certain acts of the petitioner herein which constituted violations of the court’s order.

The petitioner herein applied to the Court of Civil Appeals for and was granted a writ of prohibition and injunction restraining Hon. Wilmer Hunt, Judge of the 133rd District Court, who entered the temporary injunction order, and any other District Judge of Harris County, from proceeding with the contempt hearing. Musick v. Hunt, District Judge, et al., Tex.Civ.App., 364 S.W.2d 252.

Thereafter, upon affidavit filed in the Court of Civil Appeals, the petitioner was held to be in contempt and committed to jail. In this proceeding he attacks the order of the Court of Civil Appeals by habeas corpus.

We refer to the opinion above cited far a fuller description of the proceeding in which the temporary injunction was issued and cite the case, as well as the authorities cited therein, to sustain our conclusion that the Court of Civil Appeals had the authority to adjudicate the validity or invalidity of the temporary injunction and to exercise the discretion involved in compelling obedience to the same pending the appeal.

The judgment of the Court of Civil Appeals reflects that the acts alleged in the affidavit filed in that court which were in violation of the injunction occurred and were committed by the petitioner while the appeal from the injunction was pending in said court, and finds that the petitioner wil-fully, intentionally and contemptuously violated said injunction and was guilty of contempt in the respects set out in the contempt order.

The question of the validity of the temporary injunction order is one of the questions to be decided in the pending appeal by the Court of Civil Appeals, subject to review by the Supreme Court. We decide only that the Court of Civil Appeals was not without jurisdiction to enter the order under which the relator was confined for contempt while the appeal was pending.

In the absence of any showing that the Court of Civil Appeals was without jurisdiction to enter the order, the petition for writ of habeas corpus is denied.


author: McDonald, judge. DICE, Commissioner.

text:
    Alfonso V. GARZA, Appellant, v. The STATE of Texas, Appellee.
    No. 35434.
    Court of Criminal Appeals of Texas.
    March 27, 1963.
    Rehearing Denied May 15, 1963.
    Second Motion for Rehearing Denied June 19, 1963.
    John J. Pichinson, Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is felony theft, with a prior conviction of the same nature alleged for enhancement; the punishment, ten years' confinement in the penitentiary.

Ronald Rodgers, an employee of the Brewer T V & Appliance Store, testified that he was in sole control of the store on the 16th of May, 1962, when Benito Suniga came in and asked to see his stock of used refrigerators. They went to the rear of the store, behind a partition, to look at the stock. After talking for a few minutes, Rodgers concluded he was not going to make a sale and started back to the front of the store. He noticed a boy carrying a portable television set out the front door and he pursued and caught him as he was going around in front of a 1954 Chevrolet. The appellant was in the car at the wheel. Another television set from the store was in the seat beside him. Rodgers recovered both sets, and called the police.

A. W. Walzel, a deputy sheriff of Refugio County, testified that while on the lookout for such a car he was passed by a yellow Chevrolet bearing a corresponding license number. He testified that the appellant was the driver and that he chased the car across the railroad track south of Woods-boro, where the car stopped and appellant and the other occupant of the car jumped out and attempted to flee on foot. Both were apprehended.

The evidence is sufficient to sustain the conviction. Greer v. State, 168 Tex.Cr.R. 485, 329 S.W.2d 885.

Appellant’s primary complaint is jury misconduct. It is his contention that the jury discussed his failure to testify.

All members of the jury were called as witnesses on appellant’s motion for new trial. Nine of the jurors recalled references in their deliberations to his failure to take the stand. Two others testified that they could not remember whether such references had or had not been made. One testified that he was positive that no such reference had been made.

“The trial court is clothed with discretion in determining whether a new trial shall be granted on the ground that the jurors discussed the failure of the accused to testify in his own behalf; and an order denying the motion ordinarily will not be disturbed if the court has determined, on conflicting evidence, that the alleged misconduct did not in fact occur, or that the statement was made casually or incidentally.” 41 Tex.Jur. 2d, New Trial, Sec. 44, at page 136.

At a hearing such as this, the trial judge is the trier of the facts, and it is his duty to believe or disbelieve the witnesses. In view of the positive statement of the witness (juror) Mokry that “It didn’t take place,” we cannot say that the court below abused his discretion. Simpson v. State, Tex.Cr.App., 332 S.W.2d 732.

The jury returned a verdict finding appellant guilty of the primary offense, and that all the allegations contained in the second count of the indictment charging the prior conviction were true. The sentence imposed by the trial court reads “not less than two (2) nor more than ten (10) years.” This is reformed so as to provide no minimum punishment. It shall read that appellant be confined in the penitentiary for a term of ten (10) years. Art. 62, Vernon’s Ann.P.C.; Art. 847, Vernon’s Ann.C.C.P.; Tilghman v. State, 133 Tex.Cr.R. 640, 113 S.W.2d 911; 5 Tex.Jur. 2d, Appeal and Error — Criminal, Sec. 455, p. 726.

Finding the evidence sufficient and no reversible error appearing, the judgment, as reformed, is affirmed.

MOTION FOR REHEARING

DICE, Commissioner.

Appellant strenuously insists that we were in error in holding that the trial court did not abuse his discretion in refusing to grant a new trial because of alleged jury misconduct in discussing his failure to testify. It is appellant’s contention that since nine jurors stated that they did discuss his failure to testify and only one juror denied that such discussion was had, the trial court’s finding was so against the weight of the testimony as to manifest an abuse of discretion.

Scrivnor v. State, 121 Tex.Cr.R. 565, 50 S.W.2d 329, and Keith v. State, 121 Tex.Cr.R. 508, 51 S.W.2d 603, among other authorities, are relied upon by appellant in support of his contention.

In Scrivnor v. State, supra, this court— in passing upon the trial court’s action in refusing to grant a new trial, said: “When there is direct conflict of evidence in such matters, the decision is for the trial court, and we uphold his findings unless same appear so against the weight of the testimony as to manifest an abuse of his discretion.” The court then upheld the trial court’s action in refusing to grant a new trial under conflicting testimony of the jurors, who stood six to five on the issue.

In Keith v. State, supra, the trial court’s action in refusing a new trial was not upheld where it was shown that the jury did refer to or discuss the accused’s failure to testify and the question was whether such was merely a casual reference to his failure to testify.

Day v. State, 120 Tex.Cr.R. 17, 48 S.W.2d 266, also cited by appellant, where the trial court’s action in refusing a new trial was upheld on appeal, states the rule as follows:

“In cases where, as in the present instance, the evidence heard on the motion for new trial is conflicting as to the existence of the fact or circumstance upon which the claim of misconduct of the jury is founded, the decision of the trial judge is conclusive upon this court unless from the record it is apparent that the trial judge was clearly wrong. Such is the rule that has prevailed since the beginning of our jurisprudence. Obviously, there is no other guide when the matter comes before the appellate court. The finding of the judge on conflicting evidence is analogous to the verdict of the jury upon the testimony. In each instance the result is binding on the court unless its unsoundness is demonstrated by the record.”

In the present case there was a direct conflict in the testimony as to whether the jury did discuss appellant’s failure to testify. Although nine jurors stated that there was such a discussion and only one denied that it occurred, we adhere to our decision upholding the trial court’s action in refusing to grant a new trial. Any holding to the contrary would take away from the trial judge the right to believe one of the jurors as against the testimony of nine of the other jurors and, in effect, would destroy his discretion in the matter. This we cannot do.

The motion for rehearing is overruled.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Ann HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 35750.
    Court of Criminal Appeals of Texas.
    May 1, 1963.
    Rehearing Denied June 12, 1963.

      No attorney on appeal, for appellant.
    Henry Wade, Dist. Atty., Sam Paternos-tro and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Upon a trial before the court after waiver of a jury, the appellant entered a plea of not guilty to the information charging the offense of driving while intoxicated. She was found guilty and her punishment was assessed at three days in jail and a fine of $100.

The testimony offered by the state and that of the appellant both show that appellant was driving an automobile upon a public highway at the time and place alleged.

Officer Steel of the Dallas Police Department testified that he saw the appellant immediately after she had stopped her automobile on the street, smelled a strong odor of alcohol on her breath, observed that her speech was slurred and confused, and that she staggered while walking. He expressed the opinion that the appellant was intoxicated. Officer Raley arrived at the scene shortly after the appellant had stopped her car and his testimony corroborates that of Officer Steel.

Testifying in her own behalf, the appellant denied that she was intoxicated, but admitted she had had one drink of whiskey and two beers about 1:30 P.M., and about 8 P.M. she was apprehended by Officer Steel.

No formal or informal bills of exception appear in the record, and no brief has been filed in behalf of the appellant.

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

Opinion approved by the Court.


text:
    John Henry SCOTT, Appellant, Clyde Howard, Appellant, v. The STATE of Texas, Appellee.
    Nos. 35828, 35829.
    Court of Criminal Appeals of Texas.
    May 29, 1963.
    Jack Pevehouse, Dallas, for appellant.
    Henry Wade, Dist. Atty., James H. Miller, Stephen Guittard and Emmett Col-vin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellants, although separately indicted, were by agreement jointly tried and were convicted of murder. They were each assessed a penalty of twenty years.

The appellants, Scott and Howard, and Howard’s wife, Mary, and Willie Shaw, about 2:30 P.M., July 4, arrived at Johnny’s Lounge which was operated by the deceased. Later Mary and another woman had an argument and also Howard and another. Next Howard, Mary, Scott and Shaw left the lounge. About an hour later Howard, Shaw, a man named Sidney and Scott who was carrying a shotgun entered the lounge from the rear. The deceased told them to leave, and when they declined he took Shaw by the arm and put him out the front. Scott was at the front when the deceased came back into the lounge. Deceased was attacked by Sidney but broke away and was backing from the front door while Scott was pointing the shotgun at him from a distance of six or seven feet. At this time Howard went to Scott, reached for the shotgun with both hands and referring to the deceased said twice: “Shoot that nigger,” and Scott shot the deceased with the shotgun.

Officer Smithson testified that he arrested Howard shortly after the shooting and that Howard delivered to him a shotgun which he said was his and was used in the shooting. The evidence shows that a gunshot wound in the center of the upper portion of the chest caused the death of the deceased.

The appellants, testifying in their own behalf, stated that Willie Shaw, one of the persons in their company, had the shotgun and that he, and not either of the appellants, shot the deceased. The testimony reveals that Howard and Scott had planned to go hunting. When Howard arrived at Scott’s place about 1 P.M., Shaw was there. The hunt was cancelled and Howard, in the presence of Scott and Shaw, put the shotgun in the trunk of the car and in a short time they went to Johnny’s Lounge. Howard and Scott soon left going to a hospital, and on their return about 6 P.M., left the keys in the car. Then the deceased began talking about putting Shaw out of the lounge, and Shaw soon appeared in the lounge with the shotgun, and in his removal Shaw while standing near the front door shot the deceased who was standing inside the lounge with a pistol in his hand.

It is contended that there is a fatal variance between the allegations of the indictments that appellants killed Clifford David Taplett, Jr., and the evidence that the person killed was Clifford Taplett.

It is uncontradicted by the evidence that the killing occurred July 4, at Johnny’s Lounge which was operated by the deceased at a certain location. An employee of the Lounge testified that she was present July 4, when Clifford Taplett, Jr., who operated Johnny’s Lounge was killed. A Pathologist testified that he performed an autopsy on the body of Clifford Taplett, Jr., on July 5, whose death was caused by a shotgun wound in the chest. In response to a report Officer Smithson testified that on July 4, he saw the body of Clifford Taplett on the floor in Johnny’s Lounge,

There appears no material variance between the allegations and proof as to the name of the deceased and no error is presented. 30 Tex.Jur.2d 652, Sec. 65; Delphino v. State, 11 Tex.App. 30; Jiminez v. State, Tex.Cr.App., 364 S.W.2d 397.

Appellants contend that the state erred in cross-examination of appellant Howard’s wife, called by the appellants as a witness, about who was in the car with her when she drove it to Johnny’s Lounge, whether she drove it around the block, and how many trips she made to the Lounge, on the ground it brought out new and incriminating evidence against them in violation of Art. 714, Vernon’s Ann.C.C.P.

On direct examination the wife of the appellant-Howard testified that on the evening of the shooting she was with Howard in and around Johnny’s Lounge; and that she drove the car from around five blocks to within twelve feet of the Lounge. It is apparent that the cross-examination of Howard’s wife was germane and pertinent to her testimony on direct examination and was not in violation of said statute.

The court charged the jury on the law applicable to principals.

The evidence is sufficient to support the convictions and no error appearing the judgments are affirmed.

Opinion approved by the Court.


text:
    Alfred Ray NOLLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35749.
    Court of Criminal Appeals of Texas.
    May 15, 1963.
    Rehearing Denied June 19, 1963.
    Don M. Wilson, F. T. Gauen, Jr., Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for cattle theft, with a prior conviction for an offense of like character alleged for enhancement; the punishment, ten years.

The sufficiency of the evidence to support the conviction is challenged.

The state’s evidence was undisputed that, on the date alleged, twelve head of cattle belonging to the prosecuting witnesses A. J. Causey and Estes Hargrave were stolen from a pasture in Hopkins County.

M. E. Boss, called as a witness by the state, testified that on the night in question he and the appellant went to the pasture and, without the owners’ consent, loaded the twelve head of cattle into a bobtailed Ford track with dual wheels which the witness had obtained — upon direction of the appellant — from a vacant lot in the city of Grand Prairie. Boss stated that after they loaded the cattle he drove to the Neuhoff Packing Company in Dallas, where he sold the cattle in the name of Bobby Dale Ethridge for approximately $1,220. He further stated that after cashing the check which he received from the company for the cattle he went to Grand Prairie, where appellant resided, and gave him $1,000 out of the proceeds.

Appellant did not testify or offer any evidence in his behalf.

The court, in his charge, instructed the jury that the witness Boss was an accomplice and fully instructed them as to the corroboration necessary to convict upon accomplice-testimony, under the provisions of Art. 718, Vernon’s Ann.C.C.P., which reads:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

It is appellant’s contention that the evidence is insufficient to corroborate the testimony of the accomplice. With such contention we agree.

To corroborate the testimony of the accomplice, the state offered the following:

The two prosecuting witnesses A. J. Causey and Estes Hargrave, the owners of the cattle, testified to facts which merely showed the commission of the offense.

The witness Joe Wilson testified that he was a livestock buyer for the Neuhoff Packing Company in Dallas and that on the day in question the accomplice witness Boss came to the plant in a red bobtailed half-ton Ford truck and unloaded eleven head of cattle. Wilson stated that, at such time, he purchased the cattle from Boss and that he obtained the license number on the truck, which was later given to the sheriff’s department.

The witness Luther Johnson testified that prior to the date the cattle were stolen appellant purchased a 1951 dual-wheel ton and a half, stake body, cattle frame Ford truck from him at Cockrell Hill, near Dallas.

Sheriff Paul Ray Jones testified that in his investigation of the theft he found dual-wheel tracks in the pasture where the cattle had been loaded. The sheriff further testified that after a warrant was issued for appellant’s arrest he went to Dallas, Grand Prairie, and Arlington, looking for appellant but did not find him.

J. T. Hamby, investigator for the Texas and Southwestern Cattle Raisers Association, and State Ranger R. M. Arnold testified that they also looked for appellant in Van Zandt and Cook Counties and in Dallas and San Angelo after warrant was issued for his arrest, and that he was finally located in Oklahoma in the Tulsa county jail.

In Thomas v. State, 166 Tex.Cr.R. 331, 313 S.W.2d 311, this court, in construing the provisions of Art. 718, supra, said:

“ ‘The test as to the sufficiency of the corroboration long recognized as correct by our courts is to eliminate from consideration the evidence of the accomplice and examine the testimony of other witnesses with the view of ascertaining if from them comes incriminating evidence which tends to connect accused with the commission of the offense. If so, the corroboration is sufficient ; otherwise, not.’ ”

While the testimony of the other witnesses shows the theft of the cattle and their sale to the packing company by the accomplice, it does not connect appellant with the theft. None of the witnesses place appellant near the scene of the theft or in possession of the stolen cattle. Nor does their testimony identify the dual-wheel truck used by the accomplice in the transaction as belonging to appellant.

The proof of appellant’s apprehension in Oklahoma, standing alone, while indicative of flight, is insufficient to corroborate the accomplice.

The testimony of the other witnesses, under the rule above stated, is insufficient to corroborate the testimony of the accomplice.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.


text:
    Merriman Madison JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 35779.
    Court of Criminal Appeals of Texas.
    May 8, 1963.
    Rehearing Denied June 19, 1963.
    C. O. McMillan, Stephenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is fondling; the punishment, 5 years.

The father and mother of the injured child testified that because they were both ill they permitted their four-year old daughter to go to Clifton for a few days to stay with the child’s maternal grandmother, Mrs. Dessie Dodson, and her daughter, Billie Jean Olson. When the father went to get the girl, he found her in the front room alone with appellant. Upon the child’s return to her home in Waco, her mother, who was a graduate nurse, observed that the child’s vagina was swollen to twice its normal size and to such an extent that the child had difficulty in urinating. Dr. Avent testified that he examined the child on the night he was called and found the lips of her vagina red and badly swollen and stated that such swelling could have resulted from the insertion of a human finger into her private parts.

Appellant’s confession was introduced without objection, and it recited that Mrs. Dessie Dodson worked for him at the Cottage Courts which he owned in Clifton and that the injured child came to spend the weekend with her and her daughter Billie Jean; that while the women were in the kitchen fixing supper he pulled the child to him and “ran my finger into her panties and into her private parts,” after which he told her not to mention what he had done and gave her some money.

Appellant, testifying in his own behalf, denied the truthfulness of the confession and said that he signed same because he was told that he would be kept in jail until November and because he was sick and tired and had been questioned so long.

He called several reputation witnesses and Mrs. Dessie Dodson, who testified that the child was never left alone with appellant while she was in Clifton.

Billie Jean Olson testified that the child was let alone with appellant during her stay in Clifton and that her mother and appellant had gone together socially in the past. Another of Dessie’s daughters testified that her mother had gone with appellant before her father’s death. The justice of the peace and the sheriff who participated in the taking of appellant’s confession testified that the same was secured prior to appellant being arrested after an hour’s conversation with him in which no threats or promises were made.

The jury resolved the issue of the voluntary nature of the confession against appellant; we find the evidence sufficient to support the conviction and overrule appellant’s contention that there was no evidence other than his confession which tended to show appellant’s connection with the criminal act. Hignett v. State, Tex.Cr.App., 341 S.W.2d 166, and the cases there cited support such a conclusion. Board v. State, 167 Tex.Cr.R. 349, 320 S.W.2d 668, upon which appellant relies, may be distinguished in that the accused in that case did not admit that she inflicted the injuries which the child was shown to have sustained. In the case at bar, we have the opportunity to commit the act, the swollen condition from the act, and appellant’s confession that he committed the same.

Appellant contends the court erred in failing to charge the jury concerning an alleged exculpatory statement found in the confession as follows: “I did not leave my finger in Donna long enough to reach any sensation or climax, and I did not reach a climax as a result of fingering her.” If he did not achieve sexual satisfaction because of some interruption or physical impairment, such fact would not raise an issue as to whether the act was committed with lascivious intent, and such statement is not exculpatory.

No motion to quash the indictment was filed, and we find no fundamental error therein.

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