text:
    James Arthur SCHMILING, Appellant, v. The STATE of Texas, Appellee.
    No. 39676.
    Court of Criminal Appeals of Texas.
    May 25, 1966.

      Emmett Colvin, Jr., of Waldi'e, McDowell & Colvin, Dallas (on appeal only), for appellant.
    Henry Wade, Dist. Atty., Charles L. Caperton, Tom F. Reese and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The offense is burglary; the punishment, eleven years.

The state’s testimony shows that the prosecuting witness, Roy W. Godses, was an assistant manager of the “21 Turtle Creek Club” in the city of Dallas. On the night in question, Godses closed the business at 2:30 a. m., and, after securing the doors, went to a nearby delicatessen for breakfast. At such time no one was in the club. An hour later he returned to the club and observed the plate glass in the front door was broken. He then went to an apartment and called the police. In a short time officers arrived upon the scene and were admitted into the building by Godses. After they were inside, a “bumping” noise was heard. The lights were turned on and appellant was observed attempting to break a glass door leading to a patio, in an effort to get out of the building. Appellant was placed under arrest and searched by the officers. In the search, a cigarette lighter, some keys, and $7.53 “in change and cash” were taken from his person. The keys and cigarette lighter were identified by the witness Godses as property which had been in the club. A metal cash box, kept in a desk drawer in the office with money in it, had been opened and was empty. A ventilating panel in an inside door to the office had been removed, leaving a hole large enough for a person to crawl through.

It was shown by the testimony of the prosecuting witness that he did not give anyone permission to break and enter the place and take any property therefrom.

Appellant did not testify but called his sister and brother-in-law as witnesses and their testimony was, in substance, that he was with them on the night in question at their home, drinking beer, and that when he left at 2:30 a. m. to get a package of cigarettes he was intoxicated.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of circumstantial evidence.

We find the evidence sufficient to sustain the judgment of conviction.

The record contains no formal bills of exception and there are no objections to the court’s charge.

The informal bills of exception appearing in the statement of facts have been considered, and do not present error.

The judgment is affirmed.

Opinion approved by the court.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Ex parte Donald JESTER.
    No. 39714.
    Court of Criminal Appeals of Texas.
    May 25, 1966.

      S. B. French, Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from the order of the 147th Judicial District Court of Travis County denying appellant’s motion for a reduction of bond. The record reflects that prior to indictment, appellant had been released on bond in the sum of $5,000 and that after the return of an indictment for robbery, bond was set at $25,000. At the hearing on the motion for reduction, it was shown that appellant had a record of 18 non-felony convictions with the Austin Police Department, that at the time of the hearing appellant had pending against him a charge of the possession of narcotics as well as a Federal charge of concealing stolen money orders. The testimony of appellant could be fairly construed as admitting that he had taken some narcotics prior to commission of the offense for which he is presently charged, and that if released on bond, appellant intended to go into another state to seek employment. It was further shown that the evidence at the examining trial might well have supported an indictment for robbery with firearms, but in order to utilize a prior conviction against appellant’s co-indictee, a joint indictment was returned against the two charging them with robbery by assault.

We have concluded that the case of Ex parte Korn v. State, Tex.Cr.App., 400 S.W.2d 564, upon which appellant relies is not here controlling and that the judge did not abuse his discretion in refusing to lower the bond. Appellant’s ability to make bond is not the sole criteria in setting bond. See Art. 17.05, Vernon’s Ann.C.C.P. (1965).

The judgment of the trial court is affirmed.


author: McDONALD, Presiding Judge.

text:
    C. L. McCALEB, Appellant, v. The STATE of Texas, Appellee.
    No. 39337.
    Court of Criminal Appeals of Texas.
    May 25, 1966.

      Brown, Shuman & Harding, by Clifford W. Brown, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., Roy L. Marshall, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

McDONALD, Presiding Judge.

Our prior opinion affirming the conviction is withdrawn.

The offense is giving a worthless check; the punishment, two years confinement in the Texas Department of Corrections.

The record shows that appellant delivered a check to Raymond G. Parker on or about December 1, 1964. When presented to the bank upon which it was drawn, the check was returned unpaid with the notation: “Acct. closed.”

On January 6, 1965, Richard H. Parker filed complaint alleging under oath that the check was delivered to Raymond G. Parker with intent to defraud.

Prior to the return of the indictment on April 7, 1965, the amount of the check was paid to the holder through the District Attorney’s Office.

The record reveals that the complaint sworn to by Richard H. Parker was entered into evidence over appellant’s objection that this document was hearsay. Such objection was well taken, and the complaint was inadmissible as proof of the matter alleged therein. Barnes v. State, 155 Tex.Cr.R. 256, 234 S.W.2d 59. The inadmissible extrajudicial affidavit of Richard H. Parker that appellant delivered the check with the intent to defraud aided the state in the proof of that element of the offense, and was prejudicial to appellant.

Appellant’s motion for rehearing is granted. The judgment is reversed and the cause remanded.


author: WOODLEY, Judge.

text:
    Roberto TORRES, Appellant, v. The STATE of Texas, Appellee.
    No. 39517.
    Court of Criminal Appeals of Texas.
    May 4, 1966.
    Rehearing Denied June 15, 1966.

      Raymond E. Ehrlich, Pharr, for appellant.
    R. L. Lattimore, Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

Appellant pleaded guilty to an indictment charging him with the offense of burglary and on March 15, 1962, was sentenced to a term of from 2 to 4 years in the penitentiary.

Execution of the sentence was suspended and appellant was granted probation, one of the conditions being that he commit no offense against the laws of this or any other state, or the United States.

On July 13, 1965, the Criminal District Attorney filed motion to revoke the probation granted appellant, alleging as one of the grounds therefor that he had violated the above condition in that on or about May 18, 1965, he burglarized a house belonging to John Milton Reynolds, Jr. with intent to commit theft.

Following a hearing on the motion to revoke the trial judge found that appellant had committed the burglary in violation of the above condition of his probation and on October 13, 1965, ordered that the probation granted on March 15, 1962, be revoked and the sentence made operative with credit given appellant for 132 days spent in jail pending the hearing.

It would serve no useful purpose to set out the evidence introduced in support of the' motion to revoke probation. Suffice it to say that it was shown without dispute that on May 18, 1965, appellant broke the front display window of a jewelry store in Mercedes partly owned and in charge of John Reynolds, by throwing bricks, and took a radio and other items of merchandise from the display window without the consent of the owner.

Prior to the hearing of such evidence, appellant was granted a jury trial on the issue of insanity which resulted in findings that he was sane at the time of the hearing and “at the time of the alleged commission of the unlawful act charged against him.” Appellant’s complaint on this appeal is directed to the “hearing conducted by the 92nd District Court testing the sanity of appellant.”

While the briefs present interesting questions relating to the authority and jurisdiction of the court to try the insanity issues, the proper test to be applied and the proper charge to be given, none of such questions are before this court for review.

This court has appellate jurisdiction only in criminal cases. An appeal from a trial relative to the insanity of an accused person does not lie to the Court of Criminal Appeals. Boehme v. State, 159 Tex.Cr.R. 358, 264 S.W.2d 118, and cases cited; Pena v. State, 167 Tex.Cr.R. 406, 320 S.W.2d 355, and cases cited.

In an appeal from an order revoking probation, the review by this court is limited to determining whether the trial judge abused his discretion in ordering such revocation. Stratmon v. State, 169 Tex.Cr.R. 188, 333 S.W.2d 135, and cases cited; Oberlender v. State, 169 Tex.Cr.R. 307, 334 S.W.2d 186; Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566; Wicker v. State, Tex.Cr.App., 378 S.W.2d 332; and other cases listed under Art. 781d Vernon’s Ann.C.C.P., Note 8.

The record showing no abuse .of discretion by the trial judge, it becomes the duty of this court to affirm the order revoking appellant’s probation.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Ex parte Ray MOORE.
    No. 39664.
    Court of Criminal Appeals of Texas.
    June 1, 1966.
    Herbert H. Landau, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of California.

The judgment was rendered on August 17, 1965, and notice of appeal was given by appellant on such date.

The record is presented to this court without a statement of facts or bills of exception and in the absence thereof nothing is presented for review. Ex Parte Alcox, Tex.Cr.App., 331 S.W.2d 943.

In this connection, it is noted that on August 20, 1965, appellant filed in the cause his affidavit of inability to pay for a transcript and statement of facts, but there is no showing that the' affidavit was ever brought to the attention of the trial court.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Lynn B. ROSS, Appellant, v. The STATE of Texas, Appellee.
    No. 39710.
    Court of Criminal Appeals of Texas.
    June 1, 1966.
    No attorney of record on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The conviction is for violation of Art. 567b Vernon’s Ann.P.C. by the delivery of a check in the sum of $21.17.

Trial was before the court on a plea of guilty. On December 10, 1965, judgment was rendered assessing the punishment at 3 days in jail and a fine of $100.

Motion for new trial was filed December 21, 1965, and was overruled on January 10, 1966.

The order overruling appellant’s motion for new trial recites that the defendant gave notice of appeal; that he had theretofore entered into a bail bond guaranteeing his appearance in this cause which the court found to be sufficient and that no further bond was required of the defendant for this appeal.

Also, the clerk was ordered to prepare a record in accordance with Art. 40.09, Vernon’s Ann. Code of Criminal Procedure, said record to be prepared within 90 days.

It was noted in the order that the defendant waived his right to be present for sentencing and a sentence filed January 11, 1966, appears in the record bearing the certificate of the clerk of the trial court dated April 27, 1966.

The state submits that the appeal should be dismissed for want of a recognizance on appeal, an appeal bond or a showing that appellant is in jail, pointing out that the case was tried in 1965 under the old Code, citing Holdman v. State, Tex.Cr.App., 399 S.W.2d 361.

We overrule the state’s motion. Insofar as it may be construed as applying to the giving of notice of appeal after January 1, 1966, the preparation of the record on appeal and subsequent procedure provided for in Art. 40.09, Holdman v. State, supra, is overruled.

The record on appeal contains no bills of exception or assignments of error and nothing is presented for review.

The judgment is affirmed.


author: MORRISON, Judge. DICE, Commissioner.

text:
    Freddie Ray JAMES, Appellant, v. The STATE of Texas, Appellee.
    No. 39271.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1966.
    Rehearing Denied April 27, 1966.
    Second Motion for Rehearing Denied June 8, 1966.
    Brown, Shuman & Harding by Clifford W. Brown, Lubbock, for appellant.
    George R. Killiam, County Atty., Snyder, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is possession of beer for the purpose of sale in a dry area with two prior convictions for offenses of the same nature alleged for enhancement; the punishment, one year in jail and a fine of $750.00.

It was stipulated that Scurry County was a dry area, and the prior convictions were proven.

Sheriff Collier and Highway Patrolman Rehm went to appellant’s cafe and dance hall at 11:30 p. m. on a Saturday night. Upon entering the dance hall they found a number of people seated at tables and standing around a shuffleboard, however, most of the patrons soon departed. They observed a number of beer bottles, some of which were on the floor under the tables. One Latin American patron put a 12 ounce beer bottle on the floor and made an effort to conceal it with his leg. None of these bottles from the dance hall was seized by the officers, but they did recover four unopened quarts of beer and a partially full opened quart of beer from the refrigerator in the cafe’s kitchen.

Appellant testified that he had been .back in the dance hall playing shuffleboard most of the evening and knew nothing about the quarts of beer found in his ice box. In this he was corroborated by his wife, who stated that a boy named T-Bone had brought the five quarts of beer to the cafe shortly before the officers’ arrival and that she had furnished the ice with which to cool it more rapidly. She further stated that she had given the officers her consent to search the refrigerator.

Appellant’s principal contention is that the evidence is insufficient to support the conviction since not enough beer was seized by the officers to bring into play the prima facie presumption made operative by Article 667-25(b) Vernon’s Ann.P.C.

The case most nearly in point is Moneyhun v. State, 159 Tex.Cr.R. 317, 263 S.W.2d 266. In that case, as in the case at bar, fewer than twenty-four 12 ounce cans of beer were recovered, however, we held the evidence sufficient to sustain the conviction because of the introduction of beer found in the refrigerator of the accused’s building, the presence of a man sitting in the building near the accused with a can of beer in his hand and the proximity of empty beer cans found in the building and in an adjacent shed. While this record does not show how far from appellant the Latin American was when he attempted to conceal his bottle of beer from the officers, it does show that he and appellant were in the same room where many other beer bottles were seen.

Appellant’s last contention is that the court erred in failing to charge that mere presence, in the absence of an agreement to commit an offense, will not constitute one guilty as a principal. The contention was put to rest in Fisbeck v. State, 166 Tex.Cr.R. 105, 311 S.W.2d 865, which is here controlling.

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

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant strenuously insists that under the law of circumstantial evidence, which was given to the jury in the court’s charge, the evidence was insufficient to show that he possessed the beer in question or that it was possessed for the purpose of sale.

We have again reviewed the record in the light of such contention, and remain convinced that the evidence is sufficient to sustain the conviction.

It was undisputed that the beer was found on premises occupied and controlled by appellant and his wife. Appellant was present on the premises when the beer was confiscated. The beer was found in appellant’s refrigerator, and the evidence does not show an equal opportunity of others to possess it.

The jury were the exclusive judges of the credibility of the witnesses and had the right to reject the testimony of appellant’s wife to the effect that the boy named T-Bone had brought the beer to the cafe shortly before the officers arrived. Lee v. State, 117 Tex.Cr.R. 231, 34 S.W.2d 890.

Under the decision in Moneyhun v. State, supra, cited in our original opinion, proof that there were empty and partially-filled beer bottles in the place and that one patron sitting in a booth had a bottle of beer which he tried to conceal was sufficient to support a finding that the beer in the refrigerator was possessed by appellant for the purpose of sale.

Poston v. State, 135 Tex.Cr.R. 317, 119 S.W.2d 1053, cited by appellant, is not here controlling, because in that case the accused was not present when the officers went to his home and observed his wife pouring whisky out of two fruit jars into an icebox.

In Stout v. State, 169 Tex.Cr.R. 110, 332 S.W.2d 572, also cited by appellant, it was the wife and not the husband who was convicted of possessing liquor found in the home where she and her husband lived. In the absence of a showing that she exercised any control or management of the liquor so as to implicate her rather than her husband, the evidence was held insufficient to convict.

Being convinced that a proper disposition was made of the case on original submission, the motion for rehearing is overruled.

Opinion approved by the court.


text:
    Lindsey BRYANT et al., Appellant, v. The STATE of Texas, Appellee.
    No. 39624.
    Court of Criminal Appeals of Texas.
    June 1, 1966.
    John W. Overton, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Ted Hirtz and James A. Moseley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

This is an appeal from a judgment forfeiting an appearance bond.

The transcript was filed in this Court on March 24, 1966. The appeal was submitted on May 25, 1966. Appellant’s brief was filed May 26, 1966.

Rules 414 and 415, Rules of Civil Procedure, are applicable in Bond Forfeiture cases. Art. 44.44 Vernon’s Ann. C.C.P. Rule 414 R.C.P. requires that appellant’s brief be filed in the appellate court within 30 days after the filing of the transcript. Rule 415 provides that when appellant has failed to file his brief in the time prescribed, the appellate court may dismiss the appeal for want of prosecution, unless good cause is shown for such failure. Aguirre v. State, Tex.Cr.App., 399 S.W.2d 804, and Gaither v. State, 156 Tex.Cr.R. 503, 244 S.W.2d 209, are authority for dismissing this appeal.

The appeal is dismissed.


text:
    Gregorio Y. AYALA, Appellant, v. The STATE of Texas, Appellee.
    No. 39644.
    Court of Criminal Appeals of Texas.
    May 25, 1966.
    No attorney of record on appeal.
    Sam L. Jones, Jr., Dist. Atty., John R. Haas, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is fondling the sexual parts of a child; the punishment, 15 years confinement in the Texas Department of Corrections.

The testimony of the prosecuting witness, Joey Villareal, reveals that he was eight years old at the time of the offense and was proceeding home from school when he was accosted by appellant in a vacant lot. In the words of the little boy, “The man tol’ me if I would keep quiet, not fight, he would give me 5(⅛.” Appellant thereupon removed the boy’s trousers and underpants, and unzipped his own trousers, after which he touched the complainant on his penis more than one time with his (appellant’s) hand, and also touched the boy on the back “where you sit down” with his (appellant’s) penis. The complainant testified that “I was on the ground first and he, he went close to me,” and that appellant hurt him. Upon being released, the little boy fled, crying, with a fifty cent piece clutched in his hand.

Mrs. Maria Molina, a resident of the neighborhood, witnessed part of the transaction and testified that “he was holding him from behind like he was pushing him,” and “I heard him cursing him.”

Appellant was identified at the trial by the witness Molina and by the prosecuting witness.

We overrule appellant’s contention, found in his motions for instructed verdict and new trial, that the state failed to prove that the fondling was done with “lascivious intent”, as alleged in the indictment. The disrobing of the child, the handling of the child’s sexual parts “more than once,” appellant’s misuse of his own sexual organ, and the payment made to the boy could only lead to the conclusion that the offense was committed with lascicious sexual gratification as its object. See Slusser v. State, 155 Tex.Cr.R. 160, 232 S.W.2d 727.

We find the evidence sufficient to sustain the verdict; the record reveals no reversible error; accordingly, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    H. L. BURLESON, Appellant, v. The STATE of Texas, Appellee.
    No. 39697.
    Court of Criminal Appeals of Texas.
    June 1, 1966.
    T. M. Reid, Abilene (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is under Art. 567b, Vernon’s Ann.P.C., for the giving of a worthless check in the amount of $21.85; the punishment was assessed at thirty days in jail and a fine of fifty dollars.

The intent to defraud is an essential element of the offense here charged. Art. 567b, Sec. 1, supra.

The failure to allege in the complaint that the check was given with the intent to defraud renders it invalid. Hence, the conviction is void. McCormick v. State, 168 Tex.Cr.R. 60, 323 S.W.2d 462; Wright v. State, 324 S.W.2d 883; Martinez v. State, Tex.Cr.App., 325 S.W.2d 145.

The judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the Court.


text:
    Tom M. PEREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 39659.
    Court of Criminal Appeals of Texas.
    May 25, 1966.

      No attorney of record on appeal.
    Carol S. Vance, Dist. Atty., Edward B. McDonough, Jr., and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

Appellant was convicted, under the Uniform Narcotic Drug Act (Art. 725b, Vernon’s Ann.P.C.) as a second offender, of unlawfully selling heroin and his punishment was assessed at confinement in the Department of Corrections for fifty years.

The state’s witness, John Gober, testified that on the day in question he saw the appellant around 11:30 a. m. at an icehouse in the city of Houston. At such time, appellant approached the witness and offered to sell him some heroin at $7 a “cap.” The witness told appellant that he would come by his house later. He (the witness) then left the icehouse and called narcotics Officer McMannes. After the call, the witness met Officers McMannes and High-tower at a certain location, where the officers searched his person and automobile to ascertain that he had no narcotics and gave him $21. Acting under the officers’ instructions the witness proceeded to appellant’s home around 1 p. m. and purchased three capsules from him for $21. At the time, appellant told the witness that if later in the day he wanted to buy “some more of this dope he would have some papers” and “it would be $60.00 for a paper.” The witness then returned to the officers and delivered the capsules to them. Later in the day the witness again saw appellant at the icehouse around 9:30 p. m. Appellant informed him that he had a paper they talked about earlier. The witness again called Officer Hightower and then drove with appellant in the witness’s automobile to a certain apartment on North Shepherd. After parking the car the witness got out, leaving appellant in the vehicle, and went into the apartment, where he met Officer Mc-Mannes. The officer again searched the witness and gave him $60 in bills. The witness returned to the car and delivered the money to appellant, who in turn gave the witness a tinfoil package. The package was then delivered to Officer McMannes and was introduced in evidence as state's exhibit #2.

Officers McMannes and Hightower, called as witnesses by the state, testified that from certain vantage points they observed the two transactions between appellant and the witness Gober, and their testimony corroborated the witness’s testimony.

It was shown by the testimony of Chemist Floyd E. McDonald that the tinfoil package (state’s exhibit #2) delivered by appellant to the witness Gober contained one gram of powder which was 27.2 percent pure heroin.

A prior conviction of appellant for violation of the Uniform Narcotic Drug Act was stipulated by the parties.

Testifying in his own behalf, appellant related that he was with the state’s witness Gober on the day in question, drinking beer, but denied that he sold and delivered narcotics to him at any time. Appellant admitted his prior conviction for possession of narcotics, alleged in the indictment for enhancement.

The jury, by their verdict, rejected appellant’s testimony and accepted that of the state’s witnesses, and we find the evidence sufficient to support the conviction.

The record contains no formal bills of exception and there are no objections to the court’s charge.

The informal bills of exception appearing in the statement of facts have been examined and do not present reversible error.

The judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner. McDONALD, Presiding Judge.

text:
    Robert Eddie Louis JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38841.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    Rehearing Denied April 13, 1966.
    Second Motion for Rehearing Denied May 25, 1966.

      Sid S. Stover, Jasper, for appellant.
    Grady O. Trimble, Dist. Atty., Jasper, Floyd W. Addington, Dist. Atty., Jasper (on rehearing), Bill A. Martin, County Atty., Newton (on rehearing), Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for murder; the punishment, death.

The testimony of the state reveals that Patrolman Nicholson of the Department of Public Safety stopped an automobile about 2 a. m., January 26, which the appellant was driving with a. headlight out. Using a flashlight he approached the car also occupied by two other persons when the appellant suddenly reversed' his car which struck Nicholson’s car, damaging the fender and hood. Appellant then fled, with Nicholson in pursuit, at speeds reaching 90 miles per hour through stop signs and red traffic lights while so maneuvering that Nicholson could not pass. After three miles he came to a dead-end street. After making 95 feet of skid marks, “jumping” a ditch, a fender struck a telephone pole turning the car which went through a barn sideways causing its roof to fall, and then knocking out one side of a garage, where it stopped. Albert Bowie, one of the occupants of appellant’s car, after going through the windshield, survived the collision but Sallie Bowie Mathews, an elderly woman, was killed. While officers looked for appellant, he walked to a car occupied by Deputy Sheriff Thorpe, and asked Thorpe if he wanted him. Upon being asked what he had done, the appellant told Thorpe he had killed two people in Hemphill, Texas. The appellant further said that he killed them with a .22 rifle, and then directed Thorpe to a place near the car he had wrecked and picked up the rifle out of some high weeds and mud and gave it to Thorpe, which he identified at the trial. The appellant, the .22 rifle and $793.69 in money were delivered to Sheriff Humphreys. While testifying, Dr. Albert Bowie identified said .22 rifle as the one he gave his sister Sallie Bowie Mathews.

The appellant was staying with Sallie Bowie Mathews, an elderly woman and taking care of her. Sallie was a sister of Mathew Bowie. Albert Bowie was a son of Mathew and Preatha Bowie and lived with them. Dr. Albert Bowie, another brother of Sallie had taken a .22 rifle to the home of Sallie so that appellant could use it to hunt squirrels.

Officers went to the home of Mathew and Preatha Bowie, husband and wife, and their bodies were found on the floor with six bullet holes in the body of Preatha Bowie, the person alleged in the indictment to have been killed by the appellant. The testimony of a physician reveals that she died as a result of the bullets entering her body.

The evidence shows that Mathew Bowie had sold a large number of livestock just prior to his death. A large woman’s purse was found on the bed in the Bowie home with its contents scattered over the bed. George Bowie saw the appellant walking by his home carrying a gun the day before the bodies were found. The appellant told George Bowie, a brother of Mathew Bowie, about three weeks before the killing, “Do you know what? You can do anything you want to do, go into. Mexico and they’ll hide you.” The testimony further shows that there was a wash place near the Bowie house where a wash tub, containing water, a rub board and some clothes were found, and there were signs on the ground including spots of blood showing that something had been dragged from the direction of the wash place toward the house.

Albert Bowie testified that about 4 p. m., the appellant and Aunt Sallie drove their car in front of the Bowie home; that his father and mother (Mathew and Preatha) were standing at the wash place; that the appellant shot his father and then his mother; that they pulled them into the house, and appellant shot his mother in the back in the house; that appellant opened a purse which he found in the bedroom, removed some money and put it in his pocket; that appellant took the rifle, and he (Albert), the appellant and Aunt Sallie left in the car; and after they got to Houston the officers pursued them until the car was wrecked, killing Aunt Sallie, and the appellant ran from the scene.

The appellant did not testify or call any fact witness but introduced the application for guardianship alleging that he was twenty-one years of age, and “mentally handicapped or a non compos mentis” and eligible for state aid and the order appointing the guardian.

Error is urged on the ground that “The Court, over appellant’s request, failed to examine the witness Albert Bowie, a person who had been previously adjudged non compos mentis, on voir dire, to test his competency before permitting him to testify before the jury.”

At the time the state called and began its examination of the witness Albert Bowie, the appellant objected to any testimony from Bowie on the ground that he had been adjudged mentally incompetent, and was not able to understand the nature and consequences of an oath.

The court tendered the witness for examination on voir dire by appellant’s counsel which was declined. The objection was overruled.

The record shows that the trial court had observed the witness Bowie, sitting in the courtroom, during five days of jury selection and during recesses had heard him talking with other persons; that immediately before Bowie took the witness stand the trial court engaged him in conversation for approximately ten minutes. Based on these facts and circumstances, the court concluded that Bowie was a competent witness.

After the witness Bowie had testified and the state had rested its case in chief, the appellant introduced in evidence the order appointing a guardian for Albert Bowie, a non compos mentis. The application for guardianship recites that Bowie was then twenty-one years of age, and was eligible to receive assistance from the state. The evidence shows that the witness Bowie was twenty-seven years of age at the time of this trial.

In rebuttal the state called a county commissioner who had known Albert Bowie all of his life, and next called his sister, Mareyjoyce, age 36, who has a master’s degree in sociology and had completed all her work in that field for a Doctor of Philosophy except her dissertation, and they testified that Albert had a speech impediment, knew to tell the truth, and was able to relate the things he had seen.

Art. 708, C.C.P., provides that only insane persons who are in an insane condition of mind at the time when they are offered as a witness, or who were in that condition when the events happened of which they are called to testify, are incompetent. Saucier v. State, 156 Tex.Cr.R. 301, 235 S.W.2d 903.

A prior judgment and commitment for lunacy does not in itself disqualify the witness. Downing v. State, 113 Tex.Cr.App. 235, 20 S.W.2d 202; Singleton v. State, 124 S.W. 92; Foster v. State, 142 Tex.Cr.R. 615, 155 S.W.2d 938; Ebers v. State, 129 Tex.Cr.R. 287, 86 S.W.2d 761; and Flannery v. State, Tex.Cr.App., 216 S.W.2d 980.

The contention urged pertaining to the competency of the witness Bowie does not reveal error. Flannery v. State, supra.

It is insisted that the trial court erred in placing the jury in the custody of Sheriff Humphreys of Newton County, and in refusing to instruct the sheriff not to talk to the jury, and overruled appellant’s motion for mistrial based on such grounds.

Sheriff Humphreys was well acquainted with the deceaseds and they were friends. The sheriff had two deputies and a dispatcher; and the sheriff was not in the courtroom during the selection of the jury. The court instructed the sheriff not to discuss anything connected with the case with the jury but declined to instruct him not to converse with them in any manner. There is no showing that the sheriff stayed with the jury, that he took them to any meals, or that he said anything about the case to them.

The testimony shows that after Deputy Sheriff Thorpe delivered the appellant, the .22 rifle which was broken, and the $793.69 to Ranger Rogers in Houston, that Rogers left there with them about 8 a. m., going to Newton where he delivered them about 12 o’clock noon to Sheriff Humphreys. In investigating the case Sheriff Humphreys found a woman’s purse and a sweater on a bed in the Bowie home. He also got some spent shells which he sent to Austin and they were returned to him; and he received information that Mathew Bowie had recently sold a number of livestock.

The nature and extent of the association of the sheriff with the jury and his testimony pertaining to the case, do not reveal such association and communication with the jury as calls for a reversal under Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424.

Appellant contends that the trial court erred in refusing to grant his amended motion for new trial because the jury received new evidence while they were deliberating.

In the motion and affidavit in support thereof it is alleged that the jurors talked about the failure of the appellant to testify; and that one juror stated that if the punishment assessed was less than death he could be paroled, and the resulting discussion caused one or more jurors to change their vote from life to death.

The appellant called four jurors. One stated that the failure of the appellant to testify was not mentioned, two said they did not remember it being mentioned, and one said that it was only mentioned. All four jurors said that it was discussed about the appellant being released on parole if not assessed the death penalty.

The affidavits of two jurors were introduced by the state, and they recite that they did not hear any discussions about the failure of the appellant to testify or that if he was not assessed the death penalty he could be paroled.

It is common knowledge that persons assessed life or a term of years in prison could become eligible for parole. Art. 781d Vernon’s Ann.C.C.P. Sec. 15; Torres v. State, 169 Tex.Cr.R. 113, 331 S.W.2d 929.

The trial court did not abuse its discretion in refusing to grant the amended motion for new trial.

Error is urged because the trial court excluded certain testimony during the hearing on the amended motion for new trial. In the absence of a showing of what the testimony would have been if admitted, this contention cannot be appraised.

It is contended that the trial court erred in permitting Dr. Love to testify concerning the autopsy he performed upon the body of Preatha Bowie because he had no independent recollection and could recall the autopsy only by referring to notes which he did not make and which had been in the custody of another witness for several months.

The evidence reveals that while Dr. Love performed the autopsy he asked Texas Ranger Clark to take notes for him which Ranger Clark did as the findings were made and given to him. The correctness of the notes are not challenged. No objections were made to Dr. Love’s testimony during his direct examination on the ground here urged. The objection during cross-examination was to Dr. Love’s testimony in its entirety. He gave considerable testimony which did not depend upon said notes. The objection to the whole when parts are admissible does not present error. 56 Tex.Jur. (2) 510, Sec. 165; Adams v. State, 158 Tex.Cr.R. 414, 256 S.W.2d 406.

Appellant contends that the failure of the state to disprove that the cut on the deceased’s head was not the cause of her death entitled him to a reversal.

There were no bullets in the head, the skull was not fractured and it was in a normal condition except for a cut about two and one-half inches long in the top of the head.

The unexplained cause of the cut on the head, alone, in light of the record does not call for a reversal. There were no objections to the court’s charge or requested charges to the effect that if the cause of death was due to the cut or if another inflicted the cut which caused death to acquit. This contention reveals no error.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.

AMENDED OPINION ON APPELLANT’S MOTION FOR REHEARING

McDONALD, Presiding Judge.

Appellant re-urges the contention that Sheriff Humphreys’ association with the jury constituted a denial of due process of law and requires a reversal of the conviction, under the decision in Turner v. State of Louisiana, supra.

In his motion, he insists that any communication with the jury by the sheriff was in violation of Art. 671, Vernon’s Ann. C.C.P., and that under the decisions of this court there was a presumption of injury which was not rebutted by the state.

He also insists that the sheriff’s association with the jury presents reversible error under the decision of this court in Stecher v. State, Tex.Cr.App., 373 S.W.2d 255.

We have again reviewed the record in the light of such contentions, and remain convinced that no reversible error is shown.

The sheriff was not an unauthorized person under the provisions of Art. 671, supra. No presumption of injury would arise from his association with the jury. Gandy v. State, Tex.Cr.App., 140 S.W.2d 182; Holder v. State, 140 Tex.Cr.R. 55, 143 S.W.2d 613.

Stecher v. State, supra, involved a communication between the official court bailiff and the jury in which the bailiff answered a question propounded by the jurors. The communication in that case was an unauthorized instruction to the jury and constituted error. No such facts are presented in the case at bar.

We remain convinced that, under the authorities cited in our original opinion, the court did not err in permitting the witness Albert Bowie to testify, over appellant’s objection, that he was an incompetent.

The motion for rehearing is overruled.


text:
    Andrew MORGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 39617.
    Court of Criminal Appeals of Texas.
    May 4, 1966.
    Rehearing Denied June 15, 1966.
    Cantey, Hanger, Gooch, Cravens & Scarborough, by William L. Hughes, Jr. (on appeal only), Fort Worth, for appellant.

      Doug Crouch, Dist. Atty., Truman Power, Roland H. Hill, Jr., and John H. Chambers, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is fondling as denounced by Article 535d Vernon’s Ann.P.C.; the punishment, 25 years.

Prosecutrix’ mother testified that she had her first and only date with appellant on the night in question and that when he came to her home to get her, he left his stereo set for the amusement of her children. She stated that during the course of the evening, she became disenchanted with appellant’s company and left the night spot after calling a girl friend who came and got her. She stated that while she and her girl friend were at still another place, she got a message from her home, that when she arrived, the officers were already there, that her front door had been broken into and that her 12 year old daughter, the prosecutrix, was “white” and “shaking like she had a chill” and appeared to be “scared to death”.

The prosecutrix testified as to appellant’s arrival for his date with her mother, and as to his leaving the stereo which she and the other children played until they retired for the evening. She stated that sometime later she was awakened by appellant’s “feeling into my privates” and “trying to get my pants off” and that he asked her if she would “take it all”. She stated that when she said “no” to the last inquiry, appellant left, but within a few moments returned, made inquiry about the broken front-door glass, asked for his “record player” and then left. Upon the departure of appellant’s automobile, the description of which she noted, prosecutrix dressed and immediately went across the street to Mrs. Wooten’s house where she reported “that a man broke in on us” and used Mrs. Wooten’s telephone to call her Uncle Ed and attempted to reach her mother. When the police arrived, prosecutrix gave them a description of appellant’s automobile, and he was soon thereafter apprehended. Later in the day prose-cutrix identified appellant in a police lineup.

Mrs. Wooten testified that she lived across the street from prosecutrix, that be-' tween one and two o’clock on the morning in question she heard an automobile roar away from prosecutrix’ house, that within five minutes or less her door bell rang and that when she responded, she discovered prosecutrix and one of her sisters at her doorstep. She testified that prosecutrix was “real white and shakey just like she had a chill”, and “on the verge of hysteria” and that she reported that she had been awakened by a man who “was trying to take off her panties”, whereupon she notified the police, who arrived about the time prose-cutrix’ mother arrived.

Appellant, testifying in his own behalf, admitted two prior felony convictions in Oklahoma and a theft conviction in Dallas. He gave substantially the same testimony as did prosecutrix’ mother as to their meeting and the date and further admitted that he had broken in the glass on the front door, removed the chain latch which held it closed and entered the bedroom where prosecutrix and the other children were asleep. He gave as his reasons for this forceful entry that he thought prosecutrix’ mother had another man in the house with her and also that he thought someone was carrying his stereo out the rear door of the house. He denied that he attempted to fondle prosecutrix. He stated that he recovered his stereo on his first visit to the house and later returned to get the legs therefor, which he had forgotten.

We shall state the facts more fully in discussing the contentions advanced by counsel on appeal in his brief and in argument.

He first contends that the evidence is insufficient as a matter of law because of the failure of the State to call any of the other children who were shown to be present in the room at the time of the commission of the offense. Reliance is had upon Skewis v. State, 94 Tex.Cr.R. 306, 257 S.W. 896, and Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251. We quote from the opinion in Skewis:

“ * * * The evidence is unsatisfactory. It appears that two other children were present when it is claimed that appellant put his privates between the legs of the little girl. Their ages were not shown, nor are they used as witnesses, nor their absence accounted for.”

In the case at bar the ages of the other children were shown to have been nine, six, three, two and five months. While appellant is correct in his contention that this record reveals that one or perhaps two of these children were shown to have been awake at the time of the commission of the offense charged, we have concluded that the immediate outcry to Mrs. Wooten, together with the tender years of the other children, makes this evidence satisfactory rather than “unsatisfactory” as the facts in Skewis were characterized by Judge Lattimore. Ramirez v. State, can have no application because the witnesses who were not called were members of the highway patrol.

Appellant next contends that the court failed to comply with the terms of Article 708 (38.06) Vernon’s Ann.C.CP. in that he did not conduct a preliminary examination of prosecutrix to determine whether or not she possessed sufficient intellect to relate transactions with respect to which she was to be interrogated and also first determine whether she understood the obligation of an oath. This statute does not require a preliminary examination, and the question of prosecutrix’ competency was never raised. None of the cases cited by appellant supports his contention, if we have properly construed it, and we are aware of none.

Appellant next contends that the court erred in answering the question, “What is the minimum number of years defendant must serve under a 25 year sentence?” propounded by the jury during their deliberations by telling them, “I cannot answer your question and you will have to be governed by the law as given you in the charge.” It is appellant’s contention that the Court should have instructed the jury to discontinue this line of consideration and inquiry as was done in Pennington v. State, Tex.Cr.App., 364 S.W.2d 376. While Judge Miller’s answer in Pennington is clearly the best the writer has encountered, we have concluded that.the judge’s answer in the case at bar, in the absence of any objection, could not call for a reversal of this conviction. In fact, we construe his answer as equivalent to telling them that it would not be proper for the court to instruct them on the subject inquired about.

We have examined this record with care in the light of the contention of appellant’s attorneys on appeal that his court appointed trial attorney did not adequately represent him, whereby they point to many objections which should have been made and evidence which should not have been introduced. The United States Court of Appeals for the Fifth Circuit in Williams v. Beto, 354 F.2d 698, in discussing such a contention said:

“The practice of law is an art as well as a science. As no two men can be exactly alike in the practice of the profession, it is basically unreasonable to judge an attorney by what another would have done, or says he would have done, in the better light of hindsight.”

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


author: WOODLEY, Judge. DICE, Commissioner.

text:
    Joe BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 39534.
    Court of Criminal Appeals of Texas.
    April 13, 1966.
    Rehearing Denied May 25, 1966.
    Arthur Smith, Andrews, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the unlawful possession of beer, whiskey, gin, vodka and wine in a dry area for the purpose of sale; the punishment, 365 days in jail and a fine of $1,000.

The reeord contains no bills of exception.

The statement of facts is in narrative form and reflects that evidence was introduced showing that the area was dry; that when officers arrived at the premises of the appellant he said: “Come on in. I have plenty to sell,” and the officers found in appellant’s possession 43 quarts of beer, 7 one-half pints of whiskey, 4 one-half pints of gin, 4 one-half pints of vodka and 47 ji quarts of wine, which was introduced in evidence.

Also, a witness testified that on the date alleged in the complaint and information and prior to the raid by the officers, he purchased a bottle of wine from appellant.

The evidence is sufficient to sustain the conviction.

The statement of facts being in narrative form, no informal bills are before us for review. Owen v. State, 171 Tex.Cr.R. 361, 350 S.W.2d 542; Bobbitt v. State, 162 Tex.Cr.R. 206, 283 S.W.2d 946; Redding v. State, 161 Tex.Cr.R. 53, 274 S.W.2d 712; Art. 759a, § 2 Vernon’s Ann. C.C.P.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that the errors upon which his appeal is predicated are now presented to this court by a bill of exception contained in a supplemental transcript filed in the cause since our original opinion was delivered on April 13, 1966.

On April 18, 1965, there was filed with the clerk of this court an instrument under the hand and seal of the clerk of the county court of Andrews County, dated April 15, 1965, in which instrument it is certified that:

“* * * the above and foregoing is a true and correct copy of:
Notes taken by Deputy County Clerk at time of Trial
as the same is taken from the original instruments filed in Cause No. 2813, County Court Criminal.”

The instrument in such form does not constitute either a formal or an informal bill of exception, under Article 760d or 759a of Vernon’s Annotated Code of Criminal Procedure, which were in force at the time of appellant’s trial and conviction, and therefore the instrument cannot be considered.

The motion for rehearing' is overruled.

Opinion approved by the court.


text:
    John BRADLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 39690.
    Court of Criminal Appeals of Texas.
    June 1, 1966.
    No attorney on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

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

The trial was had and the judgment rendered on October 19, 1965. Sentence was pronounced on December 7, 1965.

No notice of appeal is contained in the record, as required by Art. 827, Vernon’s Ann.C.C.P. which was in effect when sentence was pronounced. Oehlers v. State, Tex.Cr.App., 367 S.W.2d 672; Monrreal v. State, Tex.Cr.App., 368 S.W.2d 948. In the absence of such notice this Court has no jurisdiction.

The appeal is dismissed.

Opinion approved by the Court.


author: FRASER, Chief Justice.

text:
    William O. BEAN, Appellant, v. CITY OF MONAHANS, Texas, a municipal corporation, Appellee.
    No. 5748.
    Court of Civil Appeals of Texas. El Paso.
    May 4, 1966.
    Rehearing Denied May 25, 1966.
    Calvin W. Wesch, Richard C. Milstead, Kermit, for appellant.
    L. Holt Magee, Monahans, for appellee.
   OPINION

FRASER, Chief Justice.

The appellee in this case is the City of Monahans, Texas, a home rule city organized and existing under and by virtue of Article 1175, Vernon’s Ann.Civ.St. The appellant in this case is William O. Bean, a former employee of the City of Monahans, Texas. Appellant brought suit against the City of Monahans to recover for an injury incurred by the appellant. Appellant maintains that he was driving a Dempster Dumpster (which is a garbage truck) and that he had just returned an empty can or receptacle to a grocery store after having emptied it. In replacing the empty can at the grocery store, the rear of his truck was hung up or lodged over a guard around a gas meter. In attempting to remove the rear of the truck from this obstacle, the appellant claims that he injured his knee when the tool he was using as a lever slipped or came loose while he was trying to free the truck from the obstruction. It is unfortunate that at the time of the accident the City of Monahans did not have a workmen’s compensation insurance policy in force to cover the appellant. Appellant further alleges that the injury incurred as described above finally resulted in the amputation of his leg. The trial court granted summary judgment for the City of Mona-hans, defendant-appellee, and from such judgment appellant appeals.

In Point 1, appellant alleges that the trial court committed error in holding, as a matter of law, that appellant, as an employee of appellee, was engaged in a governmental function as distinguished from a proprietary function, when the accident occurred resulting in the above described injuries to appellant. We believe that this point must be overruled.

Appellant does not contend that the collection of garbage is not a governmental function, but bases his appeal on the position that when the empty garbage can had been disposed of, his governmental function ceased and his trip back to wherever he was supposed to return the truck was solely of a proprietary nature. In as much as the accident happened at 9:30 A.M., and in the absence of any proof to the contrary, it does not seem likely that appellant had ceased his labors for the day. We do not have any statement of facts illustrating what his further plans for the day were or would have been had he not been injured. However, we do not believe that he was engaged in any proprietary activity for the appellee at the time he was injured. It has often been decided that the collection of garbage is normally a governmental function. Here, appellant argues that ap-pellee had failed to furnish him with the necessary tools and equipment to move the truck in case it should get stuck and that, in any event, he had ceased engaging in any governmental activity, and having deposited the empty can or receptacle was then engaged in a proprietary type of work for appellee.

There are many cases that have passed on this matter as, for example, in the case of City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, the court says: “A municipal corporation is not liable for the negligence of its agents and employees in the performance of purely governmental matters solely for the public benefit.” Also, in Robinson v. City of Hereford, Tex.Civ.App., 324 S.W.2d 313 (wr. ref., n. r. e.) the court says:

“The controlling questions to be determined are whether or not appellee is immune from damages because appellant was employed and working for appellee in the city sanitation department as a part of the city governmental function, helping to haul garbage and trash when his alleged injury occurred, and whether or not appellant failed to give 30 days written notice to appellee of his alleged injury and claims as required by the city charter.”

It is worth noting, we think, that this, too, was a summary judgment case, and the court discusses this feature of the lawsuit in its opinion. The court in the cited case goes on to say:

“In the case of City of Ft. Worth v. George, Tex.Civ.App., 108 S.W.2d 929 (writ refused) the court held that the collection and disposition of garbage and refuse matter from the homes in the city constitutes a ‘governmental function,’ and that a city is not liable for injuries received as a result of the exercise of such a function. In the case of City of Wichita Falls v. Robison, 121 Tex. 133, 46 S.W.2d 965, 966, the court said in part:
‘It is well settled by the decisions of this court, as well as by those in other jurisdictions, that sanitation for the public health of a city is a governmental function, and that, when a city is exercising such power, it is not liable for injuries inflicted through the negligence of its officers and employees.’
Other authorities holding that such a city sanitation service is a governmental fundon service for the rendering of which the city is not liable in case of injury are: City of Midland v. Hamlin, Tex.Civ.App., 239 S.W.2d 159, 25 A.L.R.2d 1048; Bowie v. City of Houston, Tex.Civ.App., 259 S.W.2d 765; City of Wichita Falls v. Kemp Hotel Operating Co., Tex.Civ.App., 162 S.W.2d 150, affirmed 141 Tex. 90, 170 S.W.2d 217; Ballard v. City of Ft. Worth, Tex.Civ.App., 62 S.W.2d 594.”

We believe here that the nature and circumstances of the injury to appellant indicate that he was performing a governmental act or function for the City; or, in other words, working for the City of Monahans in a governmental capacity at the time of his injury. We do not believe that his allegations that he was not provided with tools in case this particular circumstance should arise has any bearing on the case. Such a point is not independently made, nor do we find any authorities cited to that effect. It seems to us, rather, that it would be very difficult for the City to anticipate all possible difficulties that its driver might encounter during the period of his duties as a garbage or sanitation worker, and provide tools to be held in reserve on the truck for such exigency.

Also, we think it is clear that the appellant here was in the midst of his duties, and that to hold otherwise would be to hold, in effect, that his was an “off-again-on-again” type of work wherein as soon as he had deposited the empty receptacle, his governmental function ceased and he became a proprietary laborer. We think, on the contrary, it was as much his duty to bring the empty truck back, or to do whatever else was to be done with it according to his duties, as it was to pick up, haul and dump garbage and return the garbage receptacle to the place where it belonged. We do not see how any one function of this job, to-wit, picking up the containers, dumping them and returning them, and the moving the truck to some other location, could be singled out, separated and then designated as a proprietary act or function. Therefore, we think the trial court was correct in its holdings.

The appellant cites the cases of City of Houston v. Shilling, 150 Tex. 387, 240 S.W.2d 1010, 26 A.L.R.2d 935, and City of Houston v. Wolverton, 154 Tex. 325, 277 S.W.2d 101 as holding that repair work on garbage trucks is not a governmental function. These cases have long been considered and cited, and it is a well-known fact that in the Shilling case the fault was laid to malpractice or negligence in a garage maintained by the City of Houston. It has been held that the maintenance of a garage for the repair of city equipment, such as garbage trucks, is a proprietary activity. We have no evidence here that such an activity had anything to do with appellant’s injury. Also, in the Wolverton case it will be noted that the injured person there was driving his truck into Houston for the purpose of having it repaired at the city’s garage. In each of these cases the injury was sustained by a third party, and the courts seemed to hold that such injuries were primarily caused by negligence of employees in the city-controlled and maintained garage. Also, in the case of City of Houston v. Allen, Tex.Civ.App., 380 S.W.2d 696 (wr. ref., n. r. e.), the court again points out that the City of Houston maintains its own garage and also dispatches employees to make necessary repairs on the various trucks. The case shows in its evidentiary features that the faulty brakes caused the collision; that such condition was reported to a city mechanic who is alleged to have made some repairs. However, the driver said that the accident happened because the brakes, although supposedly repaired by the city’s own mechanic, failed, which was the cause of the collision. The plaintiff in this case was, of course, allowed to recover.

In conclusion, it seems clear that it has long been judicially decided that the disposal of garbage by a municipality is a governmental function and the municipality is, therefore, not liable for accidents resulting from the performance of this function — with the exception of the various City of Houston cases, where the courts have held that the accidents resulted, not from the performance of a governmental function, but because of negligence in the activities of the city-maintained garage employees, the courts holding that such garages and the activities of its employees constituted a proprietary function rather than governmental. Such is not the case here. There is no evidence in this record that the appellant was in any way repairing the truck, or that the truck required any repair. He was only freeing it so he could, presumably, continue his work. Appellant’s first point is therefore overruled.

While we have considered and studied the other points presented by the appellant, we do not believe it necessary to discuss them here, as our disposition of the first point carries with it the disposition of the other points, which contend that a genuine issue of fact existed as to whether or not appellant gave the necessary written notice of his claim to appellee, and also as to whether or not the appellee is estopped from asserting any defense based on plaintiff’s alleged failure to file his claim of injury. Believing as we do that appellant has no rightful claim because the type of work he was doing was a governmental function, the remainder of appellant’s points are overruled without further discussion.

All of appellant’s points having been overruled, the decision of the trial court is accordingly affirmed.


author: FANNING, Justice.

text:
    E. T. SMITH, Appellant, v. NORTHWEST NATIONAL BANK, Appellee.
    No. 7717.
    Court of Civil Appeals of Texas. Texarkana.
    April 26, 1966.
    Rehearing Denied May 24, 1966.

      Chester A. Oehler, Dallas, for appellant.
    William F. Billings, Fanning, Billings, Harper, Pierce & Gilley, Dallas, for ap-pellee.
   FANNING, Justice.

This was a suit by appellee bank for a deficiency judgment on a promissory note. Defendant-appellant filed a cross-action for damages and sought cancellation of the note and the chattel mortgage on two ice machines. Plaintiff-appellee’s motion for instructed verdict was granted by the trial court at the close of all of the testimony. Judgment was for plaintiff-appellee bank in the amount of $2,176.00, which amount included interest and attorney’s fees and the judgment denied defendant-appellant relief on his cross-action. Appellant has appealed.

On April 14, 1961, appellant borrowed $5,400.00 from appellee and executed a note in the amount of $6372.00, payable to ap-pellee bank in 36 equal successive payments of $177.00 each on the 15th day of each month beginning May 15, 1961, until the full amount was paid, with interest from maturity at the rate of 10% per annum. The note also provided “upon default in payment of any installment, the holder may without notice or demand declare the remaining balance due and payable” and 10% attorney’s fees were provided for in the event of suit, etc. The note was secured by a chattel mortgage upon two ice machines.

Most of the 15 installment payments that appellant made were late. 8 of said 15 payments were made by the bank’s debiting appellant’s checking account for the amount of the payments due. Such debits were as follows: 9/15/61 payment debited 10/3/61; 11/15/61 payment debited 11/16/61; 12/15/61 payment debited 12/15/61; 1/15/62 payment debited 2/5/62; 2/15/62 payment debited 3/1/62; 3/15/62 payment debited 3/27/62 ; 4/15/62 payment debited 4/15/62; 7/15/62 payment debited 7/31/62. The bank was not authorized by appellant to debit his account when the note payments were late; of the last three payments, only one was made by a debit to appellant’s account, that being the July 15,1962 payment; the May and June, 1962, payments were made in the regular manner by appellant although they were paid 13 and 20 days late, respectively.

The payment due Aug. 15, 1962, had not been made when the bank issued instructions on Aug. 21, 1962, to pick up its collateral, the two ice machines. Appellant was clearly in default on Aug. 21, 1962, when the bank’s pick-up order was issued. Default is defined in paragraph 4 of the chattel mortgage as the occurrence of “any of the following events: (i) the failure of Mortgagor to pay the secured indebtedness or any part thereof as the same becomes due, in accordance with the terms of the note or notes evidencing the same, or when accelerated pursuant to any power to accelerate.” The chattel mortgage, in paragraph 5, states that upon the occurrence of a default, Bank, at its option, may do various things to protect its interest. Among these is the following: “(ii) enter upon the premises where the mortgaged property may be and take possession thereof and remove the same without being guilty of any manner of trespass, (iii) sell the mortgaged property as a whole, or in lots or parcels, either at public auction or private sale at Dallas, Texas, or elsewhere, without notice, demand, or advertisement, which are hereby expressly waived, and if the mortgaged property be sold in lots or parcels, such sales may be made from time to time until all of such property be sold or until the secured indebtedness be paid in full.”

The bank also on Aug. 31,1962, addressed the following letter to defendant-appellant found below. The record reflects that the letter was sent by certified mail. A signed receipt indicates that appellee received same on Sept. 1,1962. On Sept. 4, 1962, appellee-bank took the sum of $954.82 from appellant’s bank account and applied same on the note. The bank sold the ice machines for $500.00 each, aggregating $1,000.00, later in July and August, 1963, and this $1,000.00 was credited on the indebtedness. Also certain other credits as shown by the record were given by the bank on the indebtedness.

Appellant contends to the effect that- the trial court erred in withdrawing the case from the jury and rendering judgment against appellant because “the pleadings and evidence raised the issue of waiver of prompt payments (no default) and that the issue should be submitted to the jury.”

Ordinarily, waiver is a question of fact, but the question becomes one of law where the facts and circumstances are admitted or clearly established. Miller v. Deahl, Tex.Civ.App., 239 S.W. 679, writ refused (1922).

Appellant has not pointed out any direct act of waiver or any agreement by the bank to waive any of the provisions of its note for prompt payment and acceleration in the event of default or prompt payment. As we view appellant’s contentions and statement in his brief, he contends to the effect that the appellee bank by debiting his account when payments on his note were past due impliedly waived prompt payments in the future.

A short definition of waiver is that it is “the intentional relinquishment of a known right or such conduct as .warrants an inference of the relinquishment of such right.” The Praetorians v. Strickland, Tex. Comm.App., 66 S.W.2d 686 (1933).

A waiver, involving as it does that idea of intention, may be expressed or implied. Waiver may be shown by conduct as will warrant the inference of the relinquishment of a known right; however waiver by implication will be applied only to prevent fraud or inequitable consequences, and to establish an implied waiver of a legal right, there must be a clear, unequivocal, and decisive act-of the party showing such a purpose or acts amounting to an estoppel on his part. 60 Tex.Jur.2d, Sec. 9, pp. 191-2.

We think under the situation in the case at bar, where the note and chattel mortgage are clear and explicit as to the dates of payment and as to the bank’s right to accelerate payments and declare the balance due on default in payment, that the requirements for the showing of an alleged “implied waiver” should be clear, decisive and unequivocal. In this connection see Corrin v. Slagle, Tex.Civ.App., 300 S.W.2d 657, wr. ref., n.r.e. (1957).

We hold that there was no evidence of probative force in the record to show waiver by appellee bank or by any of its officers. The appellee bank’s debiting of the account was not inconsistent with its right to secure prompt payment of later installments as they became due. There is no evidence that appellee bank failed to demand prompt payment where each of the installments became due, and the bank in most instances resorted to the procedure of debiting the account only after payments were several days past due as shown by the record. There was also no evidence that appellant was ready, able or willing at any time to pay the full balance due on his note after default in the August 15, 1962 payment. There was no evidence of probátive force to raise an issue of estoppel as against ap-pellee bank.

The burden of proof to show “waiver” was upon appellant. And such proof must amount to more than a scintilla of evidence, a surmise or suspicion. The Praetorians v. Strickland, Tex.Comm.App., 66 S.W.2d 686 (1933).

There being no disputed facts, we hold that the trial court in this cause correctly determined as a matter of law that there was no evidence of probative force to show waiver upon the part of appellee bank. The Praetorians v. Strickland, Tex.Comm.App., 66 S.W.2d 686 (1933). Appellant’s 1st and 2nd points are overruled.

We further hold that there were no fact issues raised by the evidence as to wrongful repossession, conversion or damages and that the trial court correctly instructed a verdict against appellant on his cross-action. ■ The repossession was lawful because it was carried out in accordance with the terms of the chattel mortgage. There was no conversion of the ice machines as appellant was in default some 5 or 6 days before the pick-up order was given on August 21, 1962. There was no competent evidence of probative force to raise any issue as to damages. Appellant’s 3rd point is overruled.

The judgment of the trial court is affirmed.

      .
      “August 31, 1962
      “Mr. E. T. Smith
      7631 Second Avenue
      Dallas, Texas
      Re: Installment Loan #1075 Amount $3,717.00
      Dear Mr. Smith:
      The above reference note was due August 15, 1962, same being secured by two (2) Lipman Ice Vending Machines.
      In view of ae delinquency of the above note, we are declaring the foil amount of the note due and payable immediately. Unless it is paid in full by Wednesday, September 5, 1962, we will pursue legal remedies for full amount of principle and interest due, according to terms unto the note.
      Tour prompt attention to this most urgent matter will be greatly appreciated.
      Tours very truly
      NORTHWEST NATIONAL BANK
      Herbert L. Adams
      Vice President
      HLA: jo
      CERTIFIED #766357
      Return receipt requested.”


author: ARCHER, Chief Justice.

text:
    LO-VACA GATHERING COMPANY, Appellant, v. W. W. MOORE, Appellee.
    No. 11370.
    Court of Civil Appeals of Texas. Austin.
    May 4, 1966.

      Webb, Webb & Meredith, Ross Meredith, Elgin, W. T. Blackburn, Corpus Christi, for appellant.
    Huggins, Vickery & McConnell, Charles R. Vickery, Jr., Houston, for appellee.
   ARCHER, Chief Justice.

This is a condemnation case for an underground pipeline easement across a 2121-acre tract of farm and ranch land in Bastrop County. Regular condemnation proceedings were held, and appellee filed objections to the award of the Special Commissioners. Trial was before a jury. Appellee’s motion to disregard the answers to the special issues was sustained in part and overruled in part. This appeal is only from those parts of the judgment that are based upon the jury’s answers to the special issues which relate to the decrease in value to appellee’s property crossed by the pipeline.

The only issues are the damage issues. Since the amount of damage is the only issue, the “sufficiency” of the evidence to support the damage findings is the controlling issue.

The damage issues include three separate inquiries:

(1) Damage to the 4.98 acre “permanent easement” — i. e. — difference in value before and after taking, because a right-of-way rather than the fee was taken.
(2) Damage to the remainder — i. e. — the difference in value before and after taking of the 2111 acres.
(3) Damage for the temporary “casting easement; ” this was resolved by stipulation and is not now in issue.

The “no” and “insufficient” evidence points attack the jury findings establishing the damages to the “permanent easement” and .the “remainder; ” the damages awarded in the judgment for the permanent easement were reduced by a “remittitur.”

The appeal is founded on seventeen points and are that the court erred in overruling plaintiff’s motions to disregard the jury’s answers to Special Issues Nos. 3, 4 and 5, and that the jury’s findings in response to Issues Nos. 2, 3, 4 and S were so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust; that the jury’s answers to Special Issues Nos. 4 and S were grossly excessive; that there was no competent evidence to support the jury’s findings in response to Issues Nos. 2, 3, 4 and 5.

Appellant claims that Special Issues Nos. 1 and 2 (the difference in the beforehand after value of the permanent easement) established a reduction in value that is excessive, however there was an admitted reduction, the amount is in dispute.

Appellant contends that an award of more than $500.00 is excessive but a witness, E. Charles Lewis, for appellant, fixed the damage at $675.00, and another witness for appellant, Jim Fredericks, fixed the damage at $946.00.

The trial court raised the answer of the jury to Issue No. 2 from $50.00 to $397.94, which resulted in a reduction of damage. The appellee makes no point of this improper procedure. See Adams v. Houston Lighting & Power Co., 158 Tex. 551, 314 S.W.2d 826, for an approved procedure in making a remittitur.

The opinion testimony on Issues Nos. 1 and 2 are ranges from $2,490.00 to $1,494.00 as to Issue No. 1 and from $50.00 to $1,-125.00 as to Issue No. 2.

The jury fixed the value before taking at $2,490.00 and the after taking value at $50.00; this amount was raised by the trial judge to $397.94.

In answer to Issue No. 3 the jury found that the tracts laying outside of the easement were decreased in market value by reason of the taking of the easement.

In answer to Issue No. 4 the jury found that the value of the remaining 2111 acres excluding the pipeline right of way, was $500,000.00, and in answer to Issue No. 5 found that the market value of the 2111 acres, excluding the pipeline right of way after the taking of the easement was $492,-617.00.

The jury’s duty was to resolve the conflicts in the testimony and did so in making its findings and we believe such findings are supported by the testimony of witnesses Duncan Allen, Grady Tuck, Jr. and W. W. Moore.

The right of way is 75 feet wide and extends from a point in a northerly property line fence of the grantor’s property and extends south 54° 00' West 5,417 feet to a point in the west property line fence of grantor’s property, and the easement taken contains 4.98 acres of land, and condemned for the construction, location, maintenance, operation, renewal, repair, inspection, replacement, restoration and removal of one 20 inch pipeline and underground appurtenances, etc.

The damages for the 4.98 acres taken was fixed at $2,092.06 and the before and after value of the remainder of land was $7,383.00 or a total of $9,475.00.

Appellant complains of the amount allowed for the right of way as being excessive and against the great weight and preponderance of the evidence.

As we have stated the testimony of the several expert witnesses differed in amounts but even witnesses for appellant fixed a value of more than $500.00 damages, and the jury could accept or reject such of the testimony as it desired.

The easement extends for almost a mile in a diagonal direction across the appellee’s land.

There can be no question but that the pipeline is a dangerous instrumentality, such was admitted and also that gas lines rupture and are dangerous.

Appellant placed danger signs on the pipeline a short distance from the condemned area. The line was encased under highways.

Block valves were installed as a precaution against the danger of leaks and explosion. One of appellant’s witnesses testified at length that there was no danger in the gas line but counsel for appellant stated that he did not have the same opinion that his witness did.

The employees of appellant walked the easement area at intervals, and low flying planes were intended to be used “every ten days, every week, possibly every two weeks, depending on the weather.”

The ranch foreman testified that the condition of the right of way interfered in the use of farm machinery, because every time you cross it you have to slow down, and at times breakage was had.

There are other facts such as the sunken condition of the right of way above the gas line, which would require filling from time to time. Light electrical currents are maintained to prevent the pipe from corroding and such current would be attracted to any metal improvements and be affected, and the right of way easement restricts the location of improvements in the 5-acre area.

The testimony on the adverse impact of pipeline easement on purchasers is in conflict, and the jury was entitled to accept the opinions of any and all of the experts, or reject some.

The verdict of the jury on the easement taken is supported by the evidence, but there were no comparable sales which could be used as a basis for opinions on answer to Issue No. 2, the “after value” in the 4.98 acres, the “permanent easement,” and the jury could rely on the intuitive opinion of the experts. State v. Haire, Tex.Civ.App., 334 S.W.2d 488, er. ref., n. r. e.

The answers of the jury to Issues Nos. 3, 4 and 5 are supported by the testimony.

One of the witnesses called by appellee was Grady Tuck, Jr., who testified that he was in the business of buying land for resale, and had been for several years, and had personal knowledge of Bastrop County sales. He testified that the gas pipeline depreciated the value of the land by $50,000.00, and gave as his reasons the easement line and its danger, lack of privacy, and anything that limits the use of land is detrimental to its sale, and, the particular property in this case was damaged, and would affect a substantial number of potential buyers.

Duncan Allen, another witness called by appellee, testified that the value of the remainder of the land had been reduced $32,-578.93 and gave as the basis as the taking of the easement, the difficulty to work over the easement, the attendant danger and the fact that the line cut diagonally across the best land in the ranch and makes it less convenient to plan farming, or the location of improvements, and that the privacy of land is less desirable by the presence of the line.

W. W. Moore, the appellee with 50 years experience in real estate business, testified that the laying of the pipeline across his ranch devolved the rest of his land, and fixed the value before taking at $639,500.00, and after the taking as $586,600.00. The witness set out what he believed caused the reduction, as the easement location, the right of ingress and egress across the land.

E. Charles Lewis, a witness called by the appellant, testified that there is danger on any pipeline, but that he did not consider the danger to be a depressor of the market, but does eliminate some buyers, and that the easement was a detriment to the owner of the property until the surface has been restored. The witness testified that privacy was important in the value of the land to some buyers, and not to others, that it would all depend on the piece of land, and that it would be of some importance to the land in question, and that the right to locate improvements in the operation of a ranch where needed was important.

The verdict for $7,383.00 as the reduction in value of the remainder is not excessive in view of all the facts and conditions testified to in the record, and is supported by the evidence.

There can be no question but that the value and usefulness of the land has been adversely affected by the pipeline easement and the right to the use of such in the installation of the pipe and the small electric line in connection therewith as related by witnesses.

Sales data as related by witness Fredericks was not admissible, except for the limited purpose of showing the basis for his opinion. State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, 95 A.L.R.2d 1207.

The factual basis for appellee’s expert opinions are reflected in the record and are sufficient evidence. Lo-Vaca Gathering Co. v. Callahan, Tex.Civ.App., 388 S.W.2d 323, er. ref., n. r. e.

There were no reasonable grounds to sustain appellant’s objection to questions establishing appellant’s intended use of the easement as alleged in appellant’s allegations in its petition for condemnation, which fully set out such intended use, all of which were lawful.

We do not believe that of the alleged errors separately or as cumulative amount to a denial of appellant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment under Rule 434, Texas Rules of Civil Procedure.

There is no question but that appellee was entitled to damages for the taking, and the verdict is not excessive, and is well within the range of the expert testimony. No improper judgment is shown. Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277.

The verdict followed the testimony of Tuck and Moore rather than Allen on Issues Nos. 1 and 2, Allen’s testimony did not contribute to the verdict, and the verdict on Issues Nos. 3 and 4 was far less than Allen’s testimony, and consequently did not contribute to the verdict on these issues. State v. Powell, Tex.Civ.App., 376 S.W.2d 929, n. w. h.

The record in this case is long, containing 437 pages and a number of exhibits in the statement of facts, and on the whole reflects conflicting views on the part of expert witnesses called by the respective parties and the jury resolved the fact issues as reflected by the verdict and was within its power, and such verdict was reasonably supported by the evidence.

We recognize that a witness may testify as to the value of the land by merely stating that he knows the land and its market value, but that when he testified as to damage to the land and consequent depreciation in value, such testimony must be based on reasonable information.

We believe that witnesses for appellee did base their testimony on reasonable information.

Appellant cites Tennessee Gas & Transmission Co. v. Zirjacks, Tex.Civ.App., 244 S.W.2d 837, er. dism., but in such case the only evidence was unexplained opinion on the before and after value, and no evidence established the cause or why of the reduction, and is not controlling or persuasive in the instant case.

There are cases upholding depreciation in value of the remainder because of the right of ingress and egress, and consequent interference with privacy, the use of farm machinery, and interference with ranch operations. Southwestern Public Service Co. v. Spurlock, Tex.Civ.App., 378 S.W.2d 134, n. w. h. Texas Electric Service Company v. Etheredge, Tex.Civ.App., 324 S.W.2d 322, n. w. h., in which the Court held:

“In Brazos River Conservation and Reclamation Dist. v. Costello, Tex.Civ.App., 169 S.W.2d 977 (Ref. w. m.), we held that in such a case as this the parties had a right to introduce evidence of anything which would tend to affect the value of the land in the eyes of a prospective purchaser, or tend to make it more or less valuable to its owner.”

The judgment of the trial court is affirmed.

Affirmed.


author: DAVIS, Justice.

text:
    Robert A. YARBER, Appellant, v. A. Warren MOREY, Appellee.
    No. 7723.
    Court of Civil Appeals of Texas. Texarkana.
    May 3, 1966.
    Rehearing Denied May 24, 1966.
    William S. Campbell, Dallas, for appellant.
    Blair Rugh, Dallas, for appellee.
   DAVIS, Justice.

A suit on a promissory note. Plaintiff-appellee, A. Warren Morey, sued appellant-defendant, Robert A. Yarber, on a promissory note in the principal sum of $3,-000.00, dated September IS, 1962, and due 120 days after date. Appellant filed a verified answer. In the verified answer he set up several special exceptions and three pleas of estoppel. Appellant further alleged that there was no consideration for giving the note; or, the consideration, if any, had failed. Appellant further alleged that the note was given on the basis of a Written Agreement between appellant and a partnership of the architectural firm of Morey & Burns to build an office building and a parking area. The Standard Form of Agreement Between Owner and Architect was executed on the 21st day of December, 1959. It was prepared by Morey and Burns. Appellant could not raise the necessary finances and the office building and parking area have not been constructed.

The appellee says that the $3,000.00 note is based on the Written Agreement, and that he, Morey, is the sole owner of the note. The Written Agreement contains the following covenants:

“11. Successors and Assignments
“The Owner and the Architect, each binds himself, his partners, successors, legal representatives, and assigns to the other party to this Agreement, and to the partners, successors, legal representatives and assigns of such other party in respect to all covenants of this Agreement.
“Except as above, neither the Owner nor the Architect shall assign, sublet or transfer his interest in this Agreement without written consent of the other.”
“12. Arbitration
“Arbitration of all questions in dispute under this Agreement shall be at the choice of either party and shall be in accordance with the provisions, then obtaining, of the Standard Form of Arbitration Procedure of The American Institute of Architects. This Agreement shall be specifically enforceable under the prevailing arbitration law and judgment upon the award rendered may be entered in the court of the forum, state or federal, having jurisdiction. The decision of the arbitrators shall be a condition precedent to the right of any legal action.”

Appellee filed a motion for summary judgment, which was granted. Appellant has perfected his appeal and brings forward one point of error.

By the point, appellant says the trial court erred in granting the motion for summary judgment. In his brief he says that there are material issues of fact to be decided by the trial court, or a jury, after hearing all the evidence.

The appellee did not file a verified original petition. Neither did he allege that the note was given for a valuable consideration. Appellant alleged in his verified answer and in his verified affidavit in reply to the motion for summary judgment that the note was given as the result of the Written Agreement. Appel-lee, likewise, alleged that the note was given as the result of the Written Agreement. Under the pleadings and the record in the case the following issues of material fact were raised: Whether or not there was a consideration for giving the note; whether or not the transfer and assignment of the written agreement is in violation of the covenants of the Written Agreement; whether or not the note should be paid until the office building and parking area was constructed according to the Written Agreement; whether or not the matter should be submitted to an arbitration according to the Written Agreement; and, whether or not the pleas of estoppel should be enforced. There are other questions of fact that are raised that should be decided as to the actual cost of the office building and the parking area that is defined and described in the Written Agreement. The appellee was supposed to be paid Six (6%) per cent of the actual cost as a basic fee. There is no showing in the record as to the actual cost. The note as given was given to Morey only, and he alleged that he was the sole owner of the claim because, he said, Burns had assigned all his interest to him. He testified that there was a written assignment and promised to furnish the same. Apparently he never did do so, because it is not included in the record. Appellant alleged in his affidavit that he did not agree to the assignment and that it probably ran afoul of the restrictive covenant.

Appellee contends that he is entitled to the judgment, as a matter of law, under holding of Lozano v. Meyers (Tex.Civ.App.) 8 S.W.2d 785, is affirmed by the Commission of Appeals, 18 S.W.2d 588, op. adpt. by Sp.Ct. In this case, G. M. Lozano and wife executed a Builder’s Contract with E. J. Meyers and R. W. Mulhausen. Lozano and wife executed a Mechanic’s Lien Note for $45,000.00, payable to Meyers and Mulhausen, and executed another $2,000.00 note payable to R. W. Mulhausen. The $2,000.00 note was transferred to L. H. Thompson, and was later transferred to A. G. Purdy.. Each transfer was for a valuable consideration. The courts held in this case that the Deed of Trust Lien and Note should be canceled, but held that Purdy was entitled to recover on the $2,000.00 note because he was a holder “in due course”. Appellee, Morey, is the holder of the Note in this suit against which there has been plead no consideration, es-toppel, etc.

There are many cases that hold that where an issue of fact is raised it is error to grant a summary judgment. The pleadings, affidavits and depositions in this case directly contradict the contention made by the appellee. In Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company (Tex.1965) 391 S.W.2d 41, the court said: “[Ejvidence which favors the movant’s position is not considered unless it is uncontradicted.” (Emphasis added.) Farris v. Nortex Oil & Gas Corporation, (Tex.Civ.App.1965), 393 S.W.2d 684, W.R., N.R.E. Under the record in this case, the Note appears to be executory. As said in Sooy v. Winter, Kansas City Ct. of App. (1915), 188 Mo.App. 150, 175 S.W. 132: “If one makes an executory contract which lacks a consideration, he may avoid it when called upon for performance.” Winningham v. Dyo (Tex.Comm.App.1932), 48 S.W.2d 600, op. apprvd. by Sp.Ct. The point of error is sustained.

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