author: NORVELL, Justice. TSTORVELL, Justice.

text:
    O. P. LEONARD, Petitioner, v. TEXACO, INC., Respondent.
    No. B-87.
    Supreme Court of Texas.
    June 14, 1967.
    Rehearing Denied Oct. 4, 1967.

      R. E. Swift, Palestine, Garrett & Sta-hala, Robert Stahala, Fort Worth, for petitioner.
    Bob Reeves, Palestine, William S. Clarke, Houston, for respondent.
   NORVELL, Justice.

This case involves a limitation problem. The action is one for damages by a surface owner against the mineral lessee allegedly growing out of seismic operations on the lease. Texaco, Inc., defendant in the trial court and respondent here, contends that the action was barred by the two year statute of limitations. Article 5526 reads in part as follows:

“There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
“1. Actions of trespass for injury done to the estate or the property of another. * * * ”

O. P. Leonard, the plaintiff in the trial court and petitioner here, takes the position that the statute was tolled for a few days by agreement of the parties so that his petition was filed within the prescribed statutory period and that a subsequent amendment of the petition was embraced by Article 5539b which provides:

“Whenever any pleading is filed by any party to a suit embracing any cause of action, cross-action, counterclaim, or defense, and at the time of filing such pleading such cause of action, cross-action, counterclaim, or defense is not subject to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability or of defense shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence. Provided, however, when any such amendment or supplement is filed, if any new or different facts are alleged, upon application of the opposite party, the court may postpone or continue the case as justice may require.”

The trial court gave judgment for plaintiff but the Court of Civil Appeals reversed upon a holding that the amendment to Leonard’s petition did not come within the provisions of said Article 5539b. 409 S.W.2d 901. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

Leonard, the surface owner of approximately 12,000 acres of land in Anderson County, Texas, sued Texaco, the holder of an oil, gas and mineral lease covering the tract, claiming that his cattle, fences, roads and road crossing had been injured or damaged by Texaco’s seismic operations. Such damages were alleged to have been suffered in the year 1959, and Leonard filed suit on July 6, 1961. The Court of Civil Appeals held that the cause of action alleged in his original petition was not barred by the two year statute of limitations. We agree with this holding. (Texaco asserts that this holding is erroneous and such contention will be discussed by us in reviewing the points of error contained in Texaco’s brief in the Court of Civil Appeals.) That court, however, held that as the original petition set up a claim in tort and the subsequent amendments thereto filed in 1964 and 1965 asserted a claim in contract, Article 5539b did not operate to save the cause of action based upon contract from the bar of the two year statute.

Leonard’s original petition asserted that Texaco had made an excessive and unreasonable use of the surface estate in conducting its seismic operations. By a 1964 amendment and a trial amendment thereto filed on March 8, 1965, Leonard retained the charge that Texaco had made an unreasonable and excessive use of the surface but also alleged that Texaco had contracted and agreed to pay all damages resulting to the surface as a result of its exploratory operations. The case was submitted upon the contract theory of liability and the jury found that prior to the time Texaco began its seismic operations, it agreed with Leonard to pay all damages to his property that might be caused by such operations and that Leonard had been damaged in a number of particulars aggregating the sum of $3,998.00.

The holding of the Court of Civil Appeals that the contract action asserted by Leonard in his trial pleadings was barred by limitation is based upon the circumstance that while the original petition sounded in tort, — unreasonable and unnecessary ' use, the amended petition was based upon an agreement to pay damages. In other words, the Court of Civil Appeals followed the “cause of action” concept in applying Article 5539b to this case and concluded that although a cause of action in tort had been declared upon within the statutory limitation period, this would not save from the bar of limitations a cause of action based on contract which was first pleaded long after two years had expired from the date the damages were allegedly sustained,

The Court of Civil Appeals relied primarily upon Hopper v. Hargrove, 154 S.W.2d 978 (Tex.Civ.App.1941, writ ref’d), which followed Phoenix Lumber Company v. Houston Water Company, 94 Tex. 456, 61 S.W. 707 (1901), a case decided before 1931 when Article 5539b was adopted. See, Acts 1931, 42nd Leg., p. 194, ch. 115. In Hopper, it appeared that the plaintiff by an amended petition sought recovery of a tract of land not mentioned in her previous petitions. The Court of Civil Appeals held that Article 5539b did not operate to avoid the bar of limitation. While the holding might be justified upon other grounds, the opinion cited the Phoenix Lumber Company case and stated that it was “clear that the third amended original petition declares upon a new cause of action in so far as the land in controversy is concerned.” (Emphasis added.)

In Global Corporation v. Vincent, 156 Tex. 398, 295 S.W.2d 640 (1956), this Court quoted with approval the following from Texas Pacific Coal & Oil Co. v. Smith, 130 S.W.2d 425 (Tex.Civ.App.1939, writ dis’m judgm. cor.):

“Unless the cause of action alleged in an amended pleading involves a different transaction from that in the original pleading, the latter having declared upon a cause of action not then barred, it is immaterial that the cause of action alleged in the amended pleading be different from the cause of action originally alleged. The test which Vernon’s Ann.Civ.St. art. 5539b makes proper is whether or not the cause of action alleged in the amended pleading be ‘wholly based upon and grows out of a new, distinct or different transaction and occurrence.’ Farmers & Merchants Nat. Bank v. Arrington, Tex.Civ.App., 98 S.W.2d 378, 379; Universal Life & Accident Ins. Co. v. Johnson, Tex.Civ.App., 120 S.W.2d 314.”

The emergency clause of the 1931 act referred to “the importance of simplifying Court procedure” and evinced an intention to effect some change in the law as it theretofore existed.

In Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816 (1950), we said:

“The obvious purpose of Article 5539b was to limit the application of the statutes of limitations to amended pleadings. It was evidently intended to modify the previously existing rule for determining whether limitation should apply to an amended pleading, as first announced in Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707. * * * Article 5539b expressly provides that an amendment to a pleading shall not be subject to a plea of limitation where the amendment is not wholly based on or grows out of a new, distinct or different transaction or occurrence.”

See also, First State Bank & Trust Co. of Rio Grande City v. Ramirez, 133 Tex. 178, 126 S.W.2d 16 (1939); City of Houston v. Magness, 364 S.W.2d 702 (Tex.Civ.App. 1963, writ ref’d).

The test under Article 5539b as amended in 1931 is no longer based upon a difference in causes of action declared upon in the original and amended petitions and the expressions contained in Hopper v. Hargrove, supra, indicating the contrary must be disapproved. The test is whether the cause of action alleged in the amended petition is “wholly based upon and grows out of a new, distinct or different transaction and occurrence.”

In this particular case, while the original petition sounded in tort and alleged an excessive use of the land, and the amended petition set up a promise to pay such damages as Texaco might cause to the surface estate through its seismic operations, it cannot be said that a petition setting up the agreement to pay stated a cause of action wholly based upon and growing out of a different transaction or occurrence. In fact, the difference in the tort and contract actions in the present case would have little practical effect so far as trial preparation is-concerned.

When Texaco notified Leonard that it intended to conduct exploratory operations, Leonard protested that the land was wet— “just as wet as a frog,” due to recent rains. He wanted Texaco to stay off the premises until they dried up. “I didn’t want them in there tearing up the country with that heavy equipment they use for seismograph-ing.” Discussions were had in regard to paying Leonard $1,000.00 for surface damage, which he refused, and One Dollar per acre, which Texaco refused. Finally, according to Leonard, a Texaco representative stated that they were going ahead with their seismic operations but would pay Leonard for damages to the surface. This agreement was later partially confirmed by letter. The seismic operations undertaken by Texaco over the protests of Leonard based upon the wetness of the ground and consequent greater damage to the premises was the transaction or occurrence out of which grew both the claim in tort and the claim in contract.

We hold that as the original cause of action declared upon in the original petition filed on July 6, 1961 was not barred by the two year statute, the cause of action alleged in the amended petition filed in 1964 and the trial amendment thereto, was not barred by the two year statute because of the provisions of Article 5539b.

As heretofore indicated, Texaco presented the contention in the Court of Civil Appeals that Leonard’s cause of action was barred by the two year statute when his original petition was filed. While the Court of Civil Appeals did not agree with defendant’s position, the sustaining of this position would result in an affirmance of the judgment of the Court of Civil Appeals that Leonard take nothing. Accordingly, we review this contention as well as all others asserted by Texaco in the Court of Civil Appeals which, if sustained, would result in an affirmance of the judgment of that court. Bildon Farms, Inc. v. Ward County Water Imp. Dist. No. 2, 415 S.W.2d 890 (Tex.Sup.1967).

Texaco argues that the evidence shows that ruts were cut on Leonard’s roads and lands on or before June 3, 1959 and that all seismic operations had been completed by June 29, 1959. As heretofore stated, Leonard’s original petition was filed on July 6, 1961. Whether the action was barred or not depends upon an agreement between Robert Stahala, Leonard’s attorney, and Jim N. Inglish, a member of Texaco’s legal department. On May 19, 1961, Inglish wrote Stahala concerning Leonard’s claim for damages. This letter in part reads as follows :

“This is to advise, as outlined in our telephone conversation of today, the period of time between the date of your letter, May 16, 1961, and the date we will again contact you regarding your claim, will not be counted as time transpired since the seismic work took place, this with reference to the period of limitation.
“As further discussed on the phone, we will proceed with our investigation and telephone you the early part of next week in order to set a time to meet with you and discuss the possibility of an agreed settlement.”

On May 30th, Leonard’s attorney wrote Inglish and mentioned a “conversation of last Wednesday morning” (May 24th). In this letter he mentioned June 3rd as a possible meeting date. Eventually the lawyers met in Fort Worth on June 19th, but after considerable discussion were unable to reach an agreement with the result that suit was filed on July 6th.

Texaco contends that Inglish “contacted” Stahala by telephone May 24, 1961, and therefore limitation was tolled for only nine days. Leonard, on the other hand, argues that the clear sense of Inglish’s letter of May 19th was that at some time in the near future, the parties would meet, discuss the situation and attempt to arrive at a settlement. Such meeting did not take place until June 19th and therefore the statute was tolled for a period of some 34 days.

We are in agreement with the Court of Civil Appeals and the plaintiff on this point. The use of the word “contact” in the sense employed in the letter is of recent origin; and in writings of a business or legal nature it occupied the position of a wayward expression of uncertain antecedents with slight hopes of obtaining a respectable place in the English language. However, as used in the context of the letter, it is clear that a meeting of the parties or their representatives, and a substantial dialogue looking toward a settlement of differences, was intended. The action asserted in the original petition was not barred on July 6, 1961 when said petition was filed.

The other points in Texaco’s brief in the Court of Civil Appeals which if sustained would result in an affirmance of the judgment of that court are those asserting that the trial court erred in not granting a judgment non obstante veredicto. By such points it is contended that there is “no evidence” supporting the jury’s finding that prior to the time the seismic operations began, Texaco agreed to pay Leonard such damages as would be sustained by him (Leonard) by its exploratory operations; that it conclusively appears that W. I. King, a district land man for Texaco, was not authorized to make an agreement binding Texaco to pay damages, and, in the alternative, any agreement to pay damages would be without consideration. In our opinion, none of these points is well taken; and although the briefs of the parties in the Court of Civil Appeals contain extended discussions of the testimony adduced at the trial, an extended treatment of factual details of the evidence by ns would be of small benefit to anyone. Special Issue No. 1 inquired if Texaco made an agreement to pay. The evidence shows that if such agreement or promise was made it was made by W. I. King. No objection to Special Issue No. 1 was made on the ground that it did not inquire as to which individual made the agreement on behalf of the oil company. No inquiry was submitted as to King’s authority. Leonard testified that the agreement was made. As heretofore indicated, there was evidence that King acting on behalf of Texaco had entered into negotiations with Leonard and had offered him $1,000.00 which was refused. King testified that he was authorized by “management” to make the $1,000.00 offer and reference to such offer by King was subsequently alluded to in a letter from the Texaco land department to Leonard. It also appears that King had refused Leonard’s counter offer of $1.00 per acre as damages. King's evident purpose was to negotiate some sort of a settlement with Leonard. We cannot say either that there was no evidence that a promise to pay was made or that it conclusively appears that King was not authorized to make such promise. See, e. g., Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273.

With reference to the contention that there was a failure of consideration, it appears that Texaco was threatening to and did enter upon the land under circumstances which would entail unusual damage to the surface because of the wetness of the ground. It was essential to Texaco’s seismic work that use be made of roads and bridges specially constructed by Leonard for a more efficient use of his ranch. Of course, Texaco as the holder of mineral estate had certain rights with reference to the surface, but it did not have the right to make an unreasonable use thereof. A dispute had arisen between Leonard and Texaco. Leonard testified that he recognized that Texaco had certain rights to the surface and considering Texaco’s promise to pay which he said was made by King, he decided he would not institute legal proceedings. The promise to pay which the jury found to exist was supported by a consideration. Compare Union Producing Co. v. Allen, 297 S.W.2d 867, 1. c. 870 (Tex.Civ.App.1957, no writ).

We are further of the opinion that there was some evidence supporting the various items of damages found by the jury. Johnny Titlow, Leonard’s ranch foreman, testified that he kept a day by day record of the seismograph crew’s operations upon the premises. His record is replete with statements as to the wetness of the soil because of recent rains and damage to roads and the surface of the ground occasioned by the use of heavy equipment thereon. For example, some of these items were as follows:

“June 23rd — Car and pickup came and went back, too wet.
“June 24th — Two cars and pickup came, they took a Ford tractor, went up to the west pasture, got a Cat (Caterpillar tractor) and one truck. The Cat had to pull the truck all the way out, when they had to get in the road, they sure did play hell with it.
“June 25th — They worked all day in the mud. The Cat had to drag two trucks all the time, he had to drag all four trucks out that evening in the rain. They sure did ruin the roads.”

Titlow also testified that a fence to a pasture was cut while the seismic crew were working on the land and a number of cattle escaped. There was also evidence that as a result of the damage to roads and other parts of the surface of the ranch, the cutting of deep ruts in the soil by heavy equipment, Leonard’s access to various portions of the ranch was severely limited with resulting damage to cattle which he had on the place. There was evidence of substantial damages. We overrule Texaco’s “no evidence” points.

What has been said disposes of this appeal. The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.

WALKER, J., not sitting.

On Rehearing

TSTORVELL, Justice.

In view of Texaco’s renewed contention that the agreement between Texaco and Leonard as found by the jury was not based upon a valid consideration, we state certain .additional facts disclosed by the record. The want of consideration issue is somewhat more narrow than might be inferred from a reading of the original opinion. It is undisputed that Leonard had constructed a number of roads and bridges upon his 12,000 acre ranch so as to make the various parts thereof more accessible and suitable for efficient operations. The oil and gas lease under which Texaco holds gave it the right to make a reasonable use of the surface for mineral exploratory and production purposes, but it is not contended that Texaco had the right to use the improvements placed upon the ranch for transporting the heavy equipment used by it in its seismic operations. Texaco expected to pay for all damages sustained by Leonard’s roads and bridges. The real issue between the parties relates to the actual terms of the contract made by the parties. By agreement with Leonard, Texaco used Leonard’s roads and bridges. Texaco contends that said agreement bound it to pay for damage to the roads and bridges used by it and no more. Leonard contends that in return for Texaco’s use of such roads and bridges and in settlement of the dispute which had arisen between the parties, Texaco agreed to pay all damages that might be sustained by Leonard resulting from Texaco’s seismic operations.

Leonard testified that during the month of May 1959, he and King held a conference in Fort Worth, Texas, and at that time King’s offer to pay $1,000.00 and Leonard’s counter offer to accept one dollar per acre as damages were made and rejected. He also testified that after a failure to agree upon a definite amount for damages to be paid Leonard, King promised that they (Texaco) “would pay for the damages, whatever was done”; that King said they were going ahead and do the work and if they did any damage they would pay for it. The jury found in accordance with Leonard’s testimony.

After this Fort Worth conversation, Mr. La von Gunter, acting for Texaco, wrote to Leonard specifically mentioning damages to roads, bridges, gates and cattle guards. In reply thereto, Leonard stated that he would “expect damages wherever same occurs.” This position was consistent with his claim of an agreement to pay whatever damages might result from Texaco’s operations. We conclude that the agreement as found by the jury was based upon a valuable consideration. James v. Fulcrod, 5 Tex. 512 (1851); Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201 (1892); 13 Tex.Jur. 2d 194, Contracts, § 56.

Texaco’s motion for rehearing is overruled.

      . Article references are to Vernon’s Ann.Tex.Stats.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Victor Truman SPOON, Petitioner, v. Lex L. PENIX, Respondent.
    No. B-489.
    Supreme Court of Texas.
    Nov. 8, 1967.
    A. J. Smith, Jr., Anson, for petitioner.
    Wagstaff, Alvis, Charlton & Alvis, David G. Stubbeman, Abilene, for respondent.
   PER CURIAM.

This is a plea of privilege case. Jurisdiction of this Court is based upon a conflict between the decision of the Eastland Court of Civil Appeals in this case (418 S.W.2d 323) and a prior decision of the Amarillo Court of Civil Appeals in Burris v. Wilson, 363 S.W.2d 885 (1962, no writ).

In the present case, exception 9a of Article 1995, Vernon’s Ann.Tex.Stats., was invoked by Dr. Lex L. Penix, plaintiff, who sued the defendant, Victor Truman Spoon, in Jones County, seeking damages arising out of an automobile collision which took place at the intersection of Highways Nos. 277 and 180 in said county. The case was tried upon the admissions of the defendant under Rules 169 and 170, Texas Rules of Civil Procedure, and the testimony of Mrs. S. Necessary, the only witness called in the case. It appears from the uncontroverted evidence that the defendant, while driving a pickup truck in a southerly direction on Highway 277, turned suddenly to the left in front of Mrs. Necessary’s car without giving a prior indication of his intention to make a left hand turn. Mrs. Necessary’s car struck the pickup and the pickup then collided with the plaintiff’s automobile which was headed west on Highway 180 but was stopped at the intersection. No one testified as to the extent of the damages to the Penix car or for that matter stated that such car had been damaged. The Court of Civil Appeals reversed the trial court’s judgment sustaining the defendant’s plea of privilege to be sued in Hardeman County, Texas where he resides.

In Burris v. Wilson, it appeared that because of defendant’s negligence, Burris, the plaintiff, swerved his car to the left in an attempt to avoid colliding .with defendant’s automobile, but nevertheless a very slight collision between the two automobiles took place. Following this collision, the Burris automobile proceeded some distance down a borrow ditch, hit a culvert and swerved onto and across the roadway. The Amarillo Court of Civil Appeals affirmed the action of the trial court sustaining the defendant’s plea of privilege upon the holding that no injury or damage to plaintiff’s automobile had been shown.

We agree with the decision of the Court of Civil Appeals in the present case. When the plaintiff Penix conclusively established that his automobile had been struck as a proximate result of defendant’s negligence, he established his right to maintain the action in Jones County over the plea of privilege of defendant. The extent of the injury or damage suffered by the plaintiff constitutes no part of a venue fact. The uncontroverted evidence showed that the defendant had violated a legal right of the plaintiff and that is all the statute requires. Hawkins v. Schroeter, 212 S.W.2d 843 (Tex.Civ.App.1948, no writ).

The application for writ of error is refused. Rule 483, Texas Rules of Civil Procedure.


author: WALKER, Justice.

text:
    R. N. SMITH et al., Petitioners, v. Donald E. WILLIAMS et al., Respondents.
    No. B-95.
    Supreme Court of Texas.
    Nov. 22, 1967.
    Rehearing Denied Dee. 20, 1967.

      Stone, Tilley, Parker, Snakard, Law & Brown, Thomas H. Law, Fort Worth, Hart & Hart, James P. Hart, Austin, for petitioners.
    Simon & Simon, Richard U. Simon, Fort Worth, for respondents.
   WALKER, Justice.

This is an action under the Uniform Declaratory Judgments Act to obtain a judgment declaring that single-family residential restrictions imposed by the 1946 Dedication of Ridglea Hills Addition in Fort Worth are still in force and apply to Lots 8, 9 and 10 in Block 47 of a subsequent dedication filed March 16, 1955. After a trial before the court without a jury, judgment was rendered that the plaintiffs take nothing. No findings of fact or conclusions of law were filed or requested. The Court of Civil Appeals reversed and rendered, holding that the property in question is subject to the 1946 restrictions. 409 S.W.2d 572. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

In 1946 real estate developers platted and dedicated as Ridgler. Hills Addition a tract of land in the western section of Fort Worth. The dedicators planned, and the plat and dedication provided for, 36 large lots ranging in size from four to five acres each. It was stipulated in the dedication that the land should he held and conveyed subject to certain reservations, restrictions and covenants, some of which are quoted at length in the opinion of the Court of Civil Appeals. These included provisions that some designated lots might be divided into not more than two plots and certain others into not more than three plots, that no lot or plot should ever be used for other than single-family residence purposes, that only one single-family residence would be permitted on any lot or plot, that any residence should have a minimum floor space of 2,000 square feet and cost not less than $15,000.00 based upon costs prevailing at the time of the dedication, and that no structure should ever be erected until the plans were submitted to and approved by the dedicators.

It was further provided that none of the lots or any building thereon should be sold or leased to or used or occupied by any person not of the white race. The dedication also stipulated that the dedicators might include additional restrictions in any contract or deed to the lots or plots, that the restrictions would be referred to, adopted and made a part of every contract and deed executed by the dedicators, would constitute covenants running with the land and be binding upon and enforceable by the dedicators and every person acquiring an interest in any part of the land, and would continue in force for an initial period of 25 years and thereafter for successive periods of 15 years each unless, within five years of the expiration of any period, the same were released by the owners of at least half of the area.

While the record is not clear on the point, it is fair to assume that several lots in the addition were conveyed subject to the restrictions set out in the dedication. Mrs. L. K. Tilley, petitioner, acquired title to Lot No. 2, Block No. 1, in 1946. Before the addition was developed, however, and before any action was taken to construct streets, utilities or houses, the developers concluded that the lots were too large. According to the testimony, they began to devise ways to redo the addition. In 1953 all persons owning any land in the original addition except Mrs. Tilley executed and filed for record a new plat and dedication embracing Lots 5, 6, 7, 8, 9, and parts of Lots 4, 10, and 11, in Block 4. That portion of the addition was resubdivided into 56 lots located in three blocks, and it was declared that the property would thereafter be known as “Dedication of Blocks 29 to 31 (both inclusive) of Ridglea Hills, being a revision of Lots 5, 6, 7, 8, 9, and portions of Lots 4, 10, and 11, in Block 4 of Ridglea Hills Addition to the City of Fort Worth.” The instrument contained detailed restrictions, similar in many respects to those found in the 1946 dedication. A. C. Luther, J. T. Luther, Jr. and Earl Wilson, who owned the particular property covered by this first rededication, were referred to as the Dedicators, and it was provided that:

“The Dedicators declare that the land sought to be sub-divided on the attached plat is held and shall be conveyed subject to the restrictions, reservations and covenants herein set forth.
“Section 1. USE OF LAND. The lots shall be used for private residence purposes only. * * *
* * * * * *
“Section 10. By this dedication it is understood and agreed that all prior restrictions placed on said property shall be amended as shown in this instrument, except that portion of the prior restrictions in respect to the sale of property to other than those of the Caucasian race.”

In 1953, prior to filing of the first rededi-cation, Mrs. Tilley and her husband conveyed the south part of Lot No. 2, Block No. I, of the original addition to A. C. Luther, J. T. Luther, Jr. and Earl Wilson. The grantees in this deed then owned parts of Ridglea Hills, and J. T. Luther, Jr. testified that they were authorized to and did represent the other owners in the transaction. By the terms of the deed, the grantors waived all restrictions placed on all property by the 1946 dedication, and it was further stipulated that none of such restrictions should apply to or be enforceable against the portion of Lot No. 2 retained by Mrs. Tilley, which is the property involved in the present suit. The deed also provided that the original dedicators of Ridglea Hills, their heirs or assigns, would agree in writing to the waiver and elimination of the restrictions on Mrs. Tilley’s property. In a separate letter agreement, executed and delivered to Mrs. Tilley as part of the same transaction, Wilson and the Luthers promised to furnish a waiver of the 1946 restrictions on the property reserved by her so the same might be sold or used for the construction of apartments. The letter and deed were filed for record at the same time as the first rededication. Mrs. Tilley’s property was rezoned for apartments by the City Council of Fort Worth in 1953. The amendment to the zoning ordinance was placed of record, but no apartment houses have been constructed anywhere in the area covered by the 1946 dedication.

The other owners of property located in Ridglea Hills did not execute a formal waiver of the restrictions. During the two-year period from 1953 to 1955, however, six additional rededications, referred to herein as the second to the seventh, inclusive, were filed for record. Each of them was executed by all the owners of the property covered thereby. The first, second, third and sixth rededications each covered a separate part, and together covered all, of the original addition. The fourth, fifth and seventh rededications dealt with certain portions of the area replatted in connection with the second rededication. Aside from the use restrictions mentioned below, each of the seven rededications followed the same general plan, subdividing the particular area covered thereby into lots generally about 100 feet wide and approximately 150 feet deep and specifying in detail the restrictions applicable thereto. By 1955 then all of the land originally dedicated in 1946 had been replatted and resubdivided.

Each of the rededications except the second and sixth provides that the property shall be used only for private residence purposes, and that all houses shall be designed for single-family occupancy. The second rededication authorized the use of Blocks 44, 45 and 56 for either single-family dwellings or multiple apartment units. This was changed by the fourth rededication, filed some two weeks later, which provides that the lots in such blocks may be used only for single-family residences. The sixth - rededication is dated March 16, 1955, and stipulates that the lots in Block 47, which include the property involved in this case, may be used for either residential or apartment purposes. It imposes a single-family residence restriction on all of the other lots in that particular subdivision.

Two of the plaintiffs in the present suit own lots in the sixth resubdivision, one owns a lot in the third resubdivision, and two own lots covered by the second and seventh rededications. In each of their deeds the property is described by reference to the applicable rededication and not by reference to the 1946 dedication. There being no evidence to the contrary, the trial court could reasonably infer that all lots in each rededicated area were so conveyed after the filing of the particular rededication.

About 200 lots in the areas covered by the first, second and third rededications were acquired by some 144 different owners before the sixth rededication was executed and filed for record in 1955. None of these owners joined in the sixth rededication, and the plaintiffs contend that the provision therein for the construction of apartments on the lots in Block 47 is ineffectual because: (1) the residential restrictions imposed by the 1946 dedication could not be released except by concurrence of the owners of all property covered by such dedication; (2) there has been no such violation of the restriction as would constitute a waiver or preclude its enforcement by a court of equity; and (3) the attempted release of the restriction in the sixth rededication is contrary to the provisions of the 1946 dedication concerning the duration of restrictions and the persons who might release the same.

We recognize the general rule that some of the owners of property in a restricted subdivision may not release or modify applicable restrictions without the concurrence of others who own property in the subdivision. See Farmer v. Thompson, Tex.Civ.App., 289 S.W.2d 351 (wr. ref. n. r. e.). It also is clear that there has been no violation of the type that ordinarily gives rise to waiver of a residential restriction or precludes its enforcement by a court of equity. See Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506; Barham v. Reames, Tex.Civ.App., 366 S.W.2d 257 (no writ); Faubian v. Busch, Tex.Civ.App., 240 S.W.2d 361 (wr. ref. n. r. e.); Walker v. Dorris, Tex.Civ.App., 206 S.W.2d 620 (wr. ref. n. r. e.); Hemphill v. Cayce, Tex.Civ.App., 197 S.W.2d 137 (no writ); Scaling v. Sutton, Tex.Civ.App., 167 S.W.2d 275 (wr. ref. w. m.). Our problem is to determine whether, as contended by Mrs. Tilley, the 1946 dedication has been replaced by the several rededications.

In considering this question, we put aside the testimony of J. T. Luther, Jr. that he and the other owners of Ridg-lea Hills intended to abandon the 1946 dedication. Their secret intention in this respect would not deprive subsequent purchasers of the right to enforce the restrictions. The purchasers of lots in the various subdivisions are charged with knowledge, however, of the terms of the 1946 dedication and of the rededication applicable to their particular property. They thus are deemed to have known that the area in which they were buying had been rededicated and was being sold by the owners thereof under a plan that was at substantial variance with the original scheme for the development of Ridglea Hills. This was enough to suggest that the 1946 dedication had no application to their property and that the portion of Ridglea Hills in which their lots lay was being developed as a separate unit. While the owners of part of the addition could not bind the remaining owners by releasing the restrictions, they could waive for themselves and their property the right to enforce the restrictions against other property in the subdivision.

Each replatting and rededication was complete in itself. Each refers to the owners of the property there resubdivided as “dedicators” and declares that such property is “held and shall be conveyed subject to the restrictions, reservations and covenants herein set forth.” Each then sets out fully the uses and restrictions applicable to the particular land and contains detailed provisions concerning the duration of the restrictions and the right to enforce same. The provisions of the 1946 dedication that certain lots might be divided into not more than two plots, certain others into not more than three plots, and that only one single-family residence would be permitted on any lot or plot were completely nullified. Where it was originally planned that the area covered by Ridglea Hills would be used for not more than 66 houses costing at least $15,000.00 and constructed on large estate-sized lots, the rededications permitted the land to be used as building sites for 460 houses. Approval of plans by the dedicators was required, but the minimum cost requirement was abandoned. Streets and roads were closed and the bridle path was eliminated. New streets were dedicated ; setback lines, building lines and easements were changed or abandoned.

Although some of the rededications state that all prior restrictions are amended as therein set out, we agree with the trial court that “amended” was not used as a word of art. The original dedication was completely emasculated and could not survive if the rededications were to be valid. It is true that the single-family residence requirement was carried forward in five of the rededications, but the very nature of this restriction was radically changed. Each lot that originally could be used for not more than three houses was, on the average, divided into almost thirteen lots with a house to be erected on each. This is a substantial departure from the original plan, differing only in degree from the change effected by the authorization of apartments on certain lots in the second and sixth rededications.

We do not have a case then of mere replatting, or an attempt to modify restrictions, by some of the owners of a restricted subdivision. Cf. Western Management Corp. v. High Crest Realty Co., Tex.Civ. App., 331 S.W.2d 365 (wr. ref.); Norwood v. Davis, Tex.Civ.App., 345 S.W.2d 944 (no writ). The owners of all property ini Ridglea Hills have resubdivided and rededicated the land owned by them in a manner that could not be valid if the original dedication were still in force. Most or perhaps all of the lots have been sold and houses have been erected on many of them, but all such sales were made and the entire addition was developed on the basis of the rededications rather than the 1946 dedication. It does not appear that any part of Ridglea Hills was conveyed, improved or held for improvement as contemplated by the original dedication after the first reded-ication was filed in 1953. In view of these circumstances, it is reasonable to conclude that those who executed each rededication intended to abandon the 1946 dedication as to the property then rededicated and to waive any right to enforce its restrictions (other than the one prohibiting sales to persons not of a Caucasian race), for the benefit of such property, against other parts of Ridglea Hills. They evidently determined to develop the addition in successive stages, with each unit governed by the restrictions set out in the applicable reded-ication. Since these issues are deemed to have been resolved by the trial court in Mrs. Tilley’s favor, neither the parties who signed a particular rededication nor their successors in title are in position to say that the original dedication is still in force. The 1946 dedication has thus been completely nullified and supplanted by the rededica-tions, and its provisions may not be enforced against any of the lots or their owners.

The judgment of the Court of Civil Appeals is accordingly reversed and that of the trial court is affirmed.

      . Article 2524-1, Vernon’s Ann.Tex.Civ.Stat.

      . As to the enforceability of this restriction, see Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441


author: ONION, Judge.

text:
    Ex parte Ole Claus KRARUP.
    No. 40900.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.

      Edward M. Snyder, Jr., Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   ONION, Judge.

OPINION

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

The record is before this Court without a transcription of the court reporter’s notes or bills of exception, and there is no indication that the appellant made any issue as to identity. See Ex parte Hopkins, Tex.Cr.App., 368 S.W.2d 223; Ex parte Starnes, 169 Tex.Cr.R. 349, 334 S.W.2d 173. We do observe that the Executive Warrant of the Governor of Texas, regular on its face, authorizing the arrest and return of the appellant to the State of California to answer the felony charge of issuing a $175.00 check without sufficient funds, the Requisition of the Governor of California, the Complaint (affidavit), warrant of arrest and other supporting papers have been filed among the papers of this cause and brought forward in the record on appeal under the clerk’s certification. These instruments bear the court reporter’s notation as to exhibit numbers. The judgment of the trial court indicates that these papers were before the court at the writ of habeas corpus hearing.

Appellant contends that there is no evidence in the record to show that a felony offense in the State of California may be prosecuted upon an information. He cites Ex parte Doyal, 167 Tex.Cr.R. 83, 318 S.W.2d 642; Ex parte Gardner, 159 Tex.Cr.R. 365, 264 S.W.2d 125; Ex parte Cooper, 163 Tex.Cr.R. 642, 295 S.W.2d 906. See also Ex parte Goodwin, Tex.Cr.App., 384 S.W.2d 874; Ex parte Parker, Tex.Cr.App., 390 S.W.2d 774; Ex parte Ivy, Tex.Cr.App., 419 S.W.2d 862.

It is true that in extradition proceedings there is a presumption that the law of the demanding state is the same as the law of Texas in the absence of a showing to the contrary. Ex parte Carroll, 171 Tex.Cr.R. 462, 351 S.W.2d 228; Ex parte Drake, Tex.Cr.App., 363 S.W.2d 781; Ex parte Martin, Tex.Cr.App., 374 S.W.2d 436.

A felony may not be prosecuted upon an information in Texas. Therefore, if the demanding state seeks to extradite an accused from Texas for a felony trial based upon an information in the demanding state, there must be a showing at the habeas corpus hearing that the law of the demanding state permits such procedure.

Without a transcription of the court reporter’s notes we do not have appellant’s contention before us for review.

We do observe, however, that there is no information in the record before us nor any indication that California intends to prosecute this appellant for a felony upon an information.

If, in fact, it be appellant’s contention that the alleged California offense is a felony and that extradition (as distinguished from eventual prosecution) is not therefore authorized upon the basis of a complaint (affidavit) and warrant issued thereon, such contention is without merit. See Article 51.13, Sec. 3. Vernon’s Ann. C.C.P. (“ * * * or by a copy of an affidavit before a magistrate there (demanding state), together with a copy of any warrant which issued thereupon.”). Ex parte Young, Tex.Cr.App., 397 S.W.2d 74; Ex parte Stanley, Tex.Cr.App., 377 S.W.2d 650; Ex parte Powers, Tex.Cr.App., 391 S.W.2d 413; Ex parte Fisher, 168 Tex.Cr.R. 336, 327 S.W.2d 579; Ex parte Favor, Tex.Cr.App., 406 S.W.2d 434.

Appellant further contends that the check in question cannot be used as the basis of any prosecution because it appears on its face to have been altered, and therefore he should not be extradited. This is a question for the California courts, not for the courts of Texas. “The merits of the charge will not be inquired into by the courts of the asylum state.” 25 Tex.Jur. 2d, Sec. 323, p. 194.

The proceedings appearing to be regular, and finding no reversible error, the judgment of the trial court remanding appellant to custody for extradition is affirmed


author: WOODLEY, Presiding Judge.

text:
    Harold David Lee HENDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40702.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.
    Rehearing Denied Jan. 10, 1968.

      J. Ray Martin, Amarillo, for appellant.
    Gene Compton, Dist. Atty., Thomas V. Priolo, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is burglary; the punishment, enhanced under Art. 62 P.C., 12 years.

Appellant’s brief was not filed in the trial court within the time allowed by Art. 40.09 Vernon’s Ann.C.C.P. in that it was not filed within 30 days after approval of the record and it is not shown that the trial court, in his discretion, authorized an additional period of time for filing it.

Appellant’s court appointed counsel presents a number of grounds of error which this court may consider in the interest of justice. Art. 40.09 V.A.C.C.P.

He contends that the indictment states no offense in that it does not allege that the breaking and entry of the house was with intent to take “corporeal personal property,” but instead alleged intent to take “corporal personal property.”

We do not regard the misspelled word as fatal to the indictment. One dictionary definition of “corporeal” is “corporal.” A synonym for both is “bodily.” Either comes within the statutory definition of personal property under the statutes relating to theft. See Art. 1410 Vernon’s Ann.P.C.; 1 Branch’s Ann.P.C.2d Ed. 496, Sec. SIS.

Several grounds of error are presented which relate to the contention that evidence obtained as the result of an illegal arrest and search, which appellant sought by motion to suppress, was admitted over proper objection.

Without the evidence obtained as the result of appellant’s arrest the state would have been unable to prove its case.

The indictment alleged the burglary of a house belonging to Luther Junior Sanders. The evidence reflects that the house burglarized was occupied by the L J Cafe, owned and operated by Sanders, in the 400 block of West Third Street in Amarillo. The house was burglarized after Sanders closed his business at midnight on November 24, 1966. There was missing from the building the next morning the contents of the coin boxes of a coin type cigarette machine containing nickels, quarters and dimes, and a “bowling machine” which took dimes only.

Also missing was a tool referred to as vice grip pliers or “vice-grips” which Sanders testified he owned and used on the night mentioned to turn off the burner under his dish tub; a file which Sanders testified he owned and used to sharpen his butcher knives; and a pair of needle-nose pliers which Sanders testified he had when he closed the cafe on November 24th and which he used to pull the stopper out of the drain tub.

Mr. Sanders testified that he next saw his pliers, file and vice-grips when the officers brought them down to him. Mr. Sanders identified the tools mentioned after they had been admitted in evidence as exhibits, over objection, as part of the property found on appellant’s person and in his possession.

The evidence introduced by the state at the hearing before the court on the motion to suppress, and before the jury, relating to the arrest of appellant and the seizure of the property reflects the following:

Officers Ferguson and Pike, of the Amarillo Police Department, while on duty and engaged in patrolling on foot in the area comprising the 300 and 400 blocks of West Third Street, shortly after 2 A. M., noticed appellant at the northeast corner of Second and Van Burén Streets walking east. It was not known at that time that the L J Cafe Building had been burglarized.

Officer Ferguson testified before the court, in part:

“Q. Did you observe anything unusual when you observed him ?
“A. Yes, sir; we observed him walking from this point to approximately this point (diagram), and this — It appeared that he was staggering, and appeared that he was drunk, or intoxicated.
“Q. Did he appear to you at that time to to have the symptoms of an intoxicated person?
“A. Yes, sir.
“Q. This was a short time after 2:15 a. m. ?
“A. Yes, about 2:15 or 2:17 a. m.
“Q. I believe you also stated that you have had occasion to see numerous persons that were definitely intoxicated ?
“A. Yes, sir.
“Q. Did he in your observation walk like an intoxicated person would walk ?
“A. Yes, sir.
“A. When Mr. Henderson noticed Officer Pike and myself he started to run towards the back stairs of the Mayfair Hotel, a two-story hotel, kind of a drab yellow. He took about three steps and I hollered, ‘stop and wait a minute’, and he did stop here at the mouth of the stairs.
“Q. Let me ask you this — prior to your hollering at him to stop, did you notice him carrying anything?
“A. He was carrying a brown paper sack.
“Q. What were its approximate dimensions ?
sfc sfc ⅜ jji ⅝
“A. About eighteen inches.
“Q. Just a regular brown paper sack?
“A. Just a paper sack.
“Q. How was he carrying it?
“A. In his right hand.
“Q. When you approached him did you have any conversation with him ?
“A. As we approached him we observed the sack; we observed a pair of pliers sticking out of his rear pocket; we also observed a large lump in his right front coat pocket, which looked like it might be rocks or coin; also sticking out of his right front coat pocket was a file, about so long, eight or ten inches.
“Q. All right. Now, did you make any request of the defendant?
“A. Yes, sir.
“Q. Tell us what you said?
“A. I says, ‘what do you have in the sack ?’
“Q. What was his reply?
“A. Cigarettes.
“Q. All right — did you look in the sack?
“A. Yes, sir.
“Q. What was in the sack?
“A. Cigarettes, and some change.
“Q. Do you remember how many packages of cigarettes were in the sack ?
“A. 22 packages of cigarettes.
“Q. All the same brand?
“A. No, sir.
“Q. Do you recall how many different brands there were?
“A. About six or seven different brands.
“Q. Three or four packages of each?
“A. Yes, sir.
“Q. What was the denomination of the change ?
“A. I think it was thirteen dollars and fifty cents, in dimes and quarters.
“Q. Is this the same type of change, in your experience, that would be in a cigarette machine?
“A. Yes, sir.
“Q. I now hand you what is marked State’s Exhibit No. 2 — first of all, examine this to see if you recognize this particular instrument?
“A. Yes, sir.
“Q. Have you seen it before? (Pliers)
“Q. Tell us where you have seen it before?
“A. In Mr. Henderson’s left pants pocket.
“Q. Does it have any distinguishing marks on it ?
“A. It has etched marks here made by a grinder.
“Q. Mr. Priolo) Now, tell us where on the person of Mr. Henderson you saw this pair of vice-grip pliers ?
“A. In his left rear pants pocket.
“Q. Did he have anything covering the grip?
“A. Yes, his coat was over them.
“Q. I believe you stated also that he had a file on his person?
“A. Yes, sir.
“Q. I hand you here for examination what has been marked State’s Exhibit No. 3 and ask you to identify that exhibit?
“A. Yes, this is the file this man had.
“Q. You identify that as being the same file you saw that night on Mr. Henderson ?
“A. Yes, sir.
“Q. We introduce this file in evidence, as State’s Exhibit No. 3.
******
“Q. How would you describe the particular characterics of the bulge of the coat — I believe that was his right front coat pocket?
“A. Yes, in his right hand coat pocket.'
“Q. Did you later determine what was in that pocket?
“A. Yes, sir.
“Q. What were they?
“A. Dimes.
“Q. How many?
“A. Eighty-one dollars worth.
“Q. Eight hundred and ten dimes?
"A. Yes, sir.
“Q. Just for the purpose of this record, tell the Judge, can you think of some obj ect that would be comparable in size to that lump?
“A. Soft ball or small football; just a large bulge in the pocket.”

On cross-examination Officer Ferguson testified:

“Q. Now, let me ask you this question— at that time did you arrest him for being drunk, or did you arrest him for vagrancy and investigation of burglary ?
“A. At that time it appeared he had been drinking, but not to the extent by my standards that he should be placed in jail for drunkenness.
“Q. Did you — then you did not file a charge against him for drunkenness?
“A. No, sir.
“Q. And the reason for that was that he was not sufficiently drunk in a public place to justify such a charge ?
"A. Yes, sir.
“Q. Now then, the sole reason that you placed him under arrest was vagrancy and investigation of burglary ?
“A. That is the charge that was filed against him.
“Q. That was the sole reason that you took him into custody ?
“A. For vagrancy and investigation of burglary, yes, sir.
“Q. And not for drunkenness?
“A. No, sir. He was not drunk enough for that.”

There was also evidence to the effect that the area being patrolled was a “high crime area” that was not well lighted.

Ordinances of the City of Amarillo enacted pursuant to Art. 14.03 C.C.P. 1965 were introduced in evidence.

Appellant testified at the hearing before the court but not before the jury. His testimony was to the effect that he obtained the cigarettes and the dimes in a dice game and that the pliers and file belonged to him. His version of the arrest was that the officer called from the alley saying “stop,” and came running and “when he patted me down and found out I had the merchandise on me he said ‘we got us one now.’ ” He denied that the officer asked him if he was unemployed or indicated that he knew anything about the pliers, file and dimes he found when the officer “patted him down.”

We are in accord with the state’s contention that the arresting officer had probable cause to detain and search appellant and that the search without a warrant was authorized by the ordinance of the City of Amarillo.

We need not decide whether the arrest was also authorized under Art. 18.22 V.A.C.C.P. to prevent the consequences of theft.

When the officer concluded from what he observed that appellant was drunk in a public place, it was his duty to arrest him. Daniels v. State, Tex.Cr.App., 387 S.W.2d 886.

The fact that the person arrested was not in fact drunk does not render his detention unlawful. The test is whether on the evidence of his own senses the officer believed that he was committing an offense in his presence. United States v. Rembert, D.C., 284 F. 996.

We commend appellant’s court appointed counsel for his able presentation of the case from the standpoint of his client.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Melvin BEVINS, Appellant, v. The STATE of Texas, Appellee.
    No. 40876.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    Talmadge Boyd, Fred L. Williams, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Wells Stewart and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

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

The State’s evidence shows that on the day in question the appellant and a companion were observed by Johnnie Attaway, Jr. and his employee entering Attaway’s grocery store. After removing a carton, the contents of which are in dispute, from the store to the open trunk of appellant’s car parked at the rear of the store, appellant was confronted by Attaway, who was brandishing a pistol and who ordered him to return the carton to the store. This appellant did, but, undaunted by Attaway’s pistol and the shot he fired at one of the tires of his automobile, appellant disregarded the gunpoint orders of Attaway to await the arrival of the police, and he and his companion fled in his car at a high speed. At-taway and his father chased appellant for some five miles at speeds up to ninety miles per hour, finally succeeded in halting appellant’s car, and there awaited the police.

Appellant’s version of the incident was that he had taken an empty box containing some lettuce leaves from the rear of At-taway’s store and that he was not guilty of any offense because the box and its contents were of no value.

Attaway testified that he observed appellant and his companion at the back of his store and saw him “check the door” and later saw him enter the store where he stayed for a minute and then, acting upon a motion of his companion’s left hand, leave the store and place an unopened carton of coffee in the back of his automobile. He further testified that there were no empty cartons in the room which the appellant entered.

Attaway’s employee explained what is meant by “checking the door” by saying that he observed appellant and his companion trying to “see if they could get in or not”. He stated that he saw appellant’s companion open the door, then close it, and then make a “circle with his fingers” toward the appellant, who then came to the building from where he had been watching his companion “check the door” and entered the same.

Since the owner testified that there were no empty cartons in the room entered by appellant, we have concluded that the evidence is sufficient to show that appellant stole a full carton containing 24 one-pound cans of coffee described by the witnesses.

Appellant’s remaining grounds of error relate to the sufficiency of that portion of the indictment charging the appellant with the conviction of another offense for enhancement purposes. The indictment reads in part as follows:

“And the Grand Jurors aforesaid do further present that prior to the commission of the aforesaid offense by the said Melvin Bevins, to-wit on the 7th day of June, A.D. 1961, in the Criminal District Court No. 2 of Harris County, Texas, the said Melvin Bevins, in cause No. 95844 was duly and legally convicted, in said last named court, of an offense of like character and of the same nature as that hereinbefore charged against him in this cause, to-wit, the offense of burglary, a felony, upon an indictment then legally pending in said last named court and of which the said court had jurisdiction, and said conviction was a final conviction.”

Appellant testified that he committed a burglary in 1961, and that he was convicted of such offense in 1961. It was stipulated by the appellant that he was the same Melvin Bevins who was convicted of burglary in Cause No. 95844 in June, 1961.

The issue appellant raises is whether the offense for which he was convicted in 1961, to wit, burglary, is of a like character and of the same nature as the offense charged in the present indictment, which is burglary with intent to commit theft.

The purpose of reciting the former conviction of appellant to enhance the penalty assessed in the present cause is to put the appellant on notice of what his prior conviction consisted. Farris v. State, 155 Tex.Cr.R. 261, 233 S.W.2d 856, and cases cited therein at p. 858. “It is not necessary that the allegation of a prior conviction should be alleged with the same particularity as the present charge.” Farris v. State, supra, 233 S.W.2d at p. 858. Having admitted the conviction by testimony from the witness stand and by stipulation, appellant cannot be now heard to complain that he was not put on sufficient notice to know with what he was being charged.

This Court has held before that a “burglary” conviction is available to enhance the punishment for a conviction for the offense of burglary with intent to commit theft. Covarrubias v. State, 169 Tex. Cr.R. 288, 334 S.W.2d 187. See also Warden v. State, Tex.Cr.App., 366 S.W.2d 786, and Strickland v. State, 115 Tex.Cr.R. 410, 28 S.W.2d 818.

Finding no reversible error, the judgment is affirmed.


text:
    Ramon OLIVIO, Appellant, v. The STATE of Texas, Appellee.
    No. 40878.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    Max P. Flusche, Jr., Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., Charles R. Parrett, Asst. Dist. Atty., Austin, and Leon'B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is passing as true a forged instrument; the punishment, five years.

The sole question presented on appeal is the admissibility of two checks other than the one set forth in the indictment. The check set forth in the indictment and the two checks introduced were from a group of numbered checks stolen from W. Brazel-ton’s auto. On each of the two identifiable fingerprints of appellant were found.

The State relies upon the opinion of the Court in Reyes v. State, 172 Tex.Cr.R. 82, 353 S.W.2d 450, and the cases there cited, and Baranosky v. State, Tex.Cr.App., 399 S.W.2d 820, and points out that the identifying witness was ably cross examined in an effort to cast doubt as to her ability to identify this appellant from among the many customers who traded at the department store where she was employed as a cashier.

The appellant, on the other hand, relies upon Cox v. State, 166 Tex.Cr.R. 587, 316 S.W.2d 891, which was affirmed with the writer dissenting, and points out that the earlier transactions which the court held to be admissible in that case were not violations of the law at the time they occurred.

He further relies upon certain statements of principles of law found in the opinion of this Court in Locke v. State, 129 Tex.Cr.R. 432, 88 S.W.2d 110. Locke was a murder case which was reversed because of the admission into evidence of an extraneous rape committed by the accused which solved no issue in the murder case.

We have concluded that the holdings of this Court in Reyes and Baranosky, supra, support the trial court’s action in admitting the other checks on the issue of identity.

Finding no reversible error, the judgment is affirmed.


author: DICE, Judge.

text:
    Bennie Erwin JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 40858.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    Jack Hampton, Dallas, for appellant.
    Henry Wade, Dist. Atty., Charles Caper-ton, Arch Pardue and William S. Mason, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for forgery; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital, life imprisonment.

In making proof of the two prior convictions alleged for enhancement, the state offered in evidence authenticated copies of the judgments and sentences in the two cases, which, with other evidence, showed that on February 20, 1963, the appellant was convicted in Criminal District Court #2 of Dallas County of the offense of burglary and on September 27, 1960, he was convicted in the same court of the offense of attempted burglary.

The indictments in the two cases were not introduced in evidence.

No proof was offered which showed that the 1963 conviction was for an offense committed after the 1960 conviction had become final. Such proof was necessary to enhance appellant’s punishment, under Art. 63, supra. Cortez v. State, Tex.Cr.App., 314 S.W.2d 589; Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697; Haines v. State, Tex.Cr.App., 391 S.W.2d 58.

The mere fact that appellant admitted on his cross-examination that he had been previously convicted of the two offenses did not dispense with the necessity of the state making such proof.

We do not construe Shannon v. State, 170 Tex.Cr.R. 91, 338 S.W.2d 462, and Sistrunk v. State, 169 Tex.Cr.R. 74, 331 S.W.2d 323, as supporting the state’s position that appellant’s admission that he had been convicted in the two cases rendered unnecessary proof by the state that the 1963 conviction was for an offense committed after the 1960 conviction had become final.

For the reason stated, appellant’s ground of error #3 is sustained.

The judgment is reversed and the cause is remanded.


author: BELCHER, Judge.

text:
    Reginald Edison WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 39803.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    Rehearing Denied Oct. 25, 1967.
    Second Rehearing Denied Nov. 29, 1967.

      Jack Beech (Court Appointed on Appeal Only), Fort Worth, Alfred J. Jackson, Jr. (Court Appointed), Fort Worth, for appellant.
    Frank Coffey, Dist. Atty., Glenn Goodnight, Grady Hight and Walter Shore, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The appellant was convicted of murder upon an indictment alleging that he did “voluntarily and with malice aforethought kill Ralph Lucas Bennett by stomping him with his feet,” and his punishment was assessed at death.

The sufficiency of the evidence to support the conviction is challenged. It is insisted that the evidence is insufficient to establish the corpus delicti, and that there is no evidence that the death of the deceased was caused by any criminal act or agency of the appellant.

In order to establish the corpus de-licti in cases of homicide, there must be shown a criminal act and the resulting death, and the agency of the accused in its commission.

The testimony reveals that Raymond Moore Davidson, Ralph Bennett, and the appellant lived in separate apartments in the same apartment house. Davidson testified that on July 4, 1965, he went into Bennett’s apartment, made some coffee, and Bennett came in, sat on the bed, then appellant came in, slapped Bennett on the face, causing his nose to bleed, and accused Bennett of stealing a $104 check from him; that about 2 or 3 p. m., he heard an unusual racket and on going to appellant’s apartment door he saw the appellant upon Bennett, who was lying on his back on the floor, and appellant was jumping up and down on Bennett’s stomach with both feet, and when he threatened to call the police appellant sat down, and soon said he would give Bennett some air by taking him for a ride around the park; that he helped put Bennett in appellant’s car and last saw them about 3:30 or 4:30 p. m.

The evidence further reveals that about 4 p. m., July 4, a body was found in Trinity Park with a check stub bearing the name of “R. L. Bennett” in one of the pockets of the clothing on the body. The body was bruised with blood on the face and chest, and the body was warm.

Dr. Gwozdz,' the pathologist who performed the autopsy, testified in addition to the numerous lacerations on the body and that both sides of ribs could be lifted from the sternal bone without dissection, that:

“A The cause of death is considered an acute shock, due to multiple internal hemworrhages, as the result of injuries to the chest, present with multiple fractures of the ribs, with hemorrhages into the chest, as well as into the abdominal cavity, and with traumatic rupture of the liver and lungs.”

The appellant contends that the evidence is insufficient to show that the death of the deceased was caused by a criminal act. As grounds for this contention he urges that the body was found only six feet from a roadway; that tire marks were near the body; that a policeman was investigating an automobile in a ditch 61 feet from the body at the time it was discovered; that the body was warm, and the injuries looked like those caused by being struck by an automobile.

It is concluded that all the facts and circumstances in evidence were sufficient to authorize the jury to find that the death of the deceased was caused by violence unlawfully inflicted by someone.

As grounds for reversal, it is contended that there is no evidence that the name of the deceased was Ralph Lucas Bennett or that the appellant killed him by stomping him with his feet.

The evidence reveals that the appellant and Ralph Bennett lived in adjoining apartments, and on July 4, 1965, the appellant went into Bennett’s apartment, slapped Bennett on the face, causing his nose to bleed, and said to Bennett, “You so-and-so, you stole my $104.00 check”; that later Bennett was seen lying on the floor in appellant’s apartment, and appellant was jumping up and down on Bennett’s stomach with both feet, and that the shoes which appellant had on at the trial looked like the same shoes he had then; that when threats were made to call the police, the appellant said he would give Bennett some air by taking him for a ride around the park, and the appellant left the apartment with Bennett in the car about 3:30 or 4:30 p. m.; that Bennett was wearing levis and a dark striped shirt with the two top buttons open when they left in the car; that about 4 p. m., July 4, 1965, a body was found in Trinity Park with a check stub bearing the name of “R. L. Bennett” on it in one of the pockets of the clothing on the body; that the body was bruised with blood on the face and chest, and the body was warm; and that the body was clothed with levis and a western shirt which was unbuttoned.

Officer Burkhart testified in part as follows:

“Q (State’s Counsel) Officer Burkhart, briefly, just what are your duties with the Fort Worth Police Department?
“A I am a Member of the Crime Search Detail.
“Q And just tell us and the Jury what you do when you arrive at the scene of a crime.
“A Well, when I arrive at the scene of a crime, I take photos, whatever is necessary, collect all the evidence, mark and preserve finger-prints. Depends on what type of crime it is. But primarily, it is to collect all evidence, found at the scene of the crime.
“Q Is that what you did in this case ?
“A Yes sir.
“Q . Does that require special training ?
“A They did send us to school, and train us for this particular job.”

Officer Burkhart was later recalled as a witness by the state and testified in part as follows:

“Q Officer Burkhart, were you at the Greenwood Funeral Home when Mr. Taylor, the Identification Officer of the Fort Worth Police Department arrived?
“A Yes sir, I was.
“Q Were you present when he compared the fingerprints of the deceased with those of Ralph Lucas Bennett?
“A I was.
“Q Did they compare?
“A Yes sir.
“Q Was it the same man?
“A Yes sir.
“State’s Counsel: That’s all.
“Q (Appellant’s Counsel) Was it Ralph Lucas Bennett or R.' L. Bennett?
“A The prints that he brought from the Identification Bureau, were carried as Ralph Lucas Bennett.
“Q Well now, that is something you looked at and saw? * * * Correct?
“A Yes sir. This was on the card that Mr. Taylor the ID Man, brought.
“Appellant’s Counsel: We object to all of this testimony, Your Honor, because it is not the best evidence, and it is hearsay.
“The Court: I overrule your objection.”

No error is shown by the action of the court in overruling said objection as the appellant contends.

Detective Sinclair, who went to the apartment house described herein during the investigation of this case, testified:

“A I found the Defendant, Mr. Reginald Wright.
“Q Did you have any conversation with the Defendant at that time ?
“A Yes sir.
“Q Did you ask him where he lived? “A Yes sir.
“Q Where did he tell you that he lived ?
“A He lived in Apartment 2, which he was standing in the door-way of, at that time.
“Q Did you ask him if you could go in ?
“A He invited us, myself and Officer Coffman, in.
“Q All right. * * * Did you ask him if he knew Ralph Lucas Bennett?
“A Y es sir.
“Q What did he tell you?
“A He told me that he did know Mister Bennett; * * * and that he had lived in Room 3, up until Saturday, July the 3rd; * *

Carl Maupin, chemist and toxicologist, who investigated room nos. 2 and 3 in the apartment house in question, testified as follows:

“A In Room 2, * * * I found two buttons on the floor. One was under the red carpet; the other was on top of the same red carpet.
* * * * * *
“Q Did you examine the buttons that you found there in that room?
“A Yes sir, I did.
“Q And did you make any comparison of those buttons with anything else?
“A Yes. I compared the buttons found, with the buttons on the shirt of the deceased.
“Q State whether or not there were any buttons missing from the shirt of the deceased?
“A Yes sir; there were two missing, from the shirt of the deceased.
“Q How many buttons did you find in Room 2?
“A I found two.
“Q What did your comparison reveal?
“A Let me find my notes here. * * * Now, the comparison showed that two buttons found on the floor, were similar in color, size, shape, thread, number of holes, size and color of thread found in the victim’s shirt.”

Officer Young, assigned to the Crime Scene Search Division, testified that on July 4, he investigated a body in Trinity Park, and that he took a specimen of hair from the body at the funeral home and put it in an envelope and then placed it in the evidence box at the city hall. Following the above testimony it was developed that Young did not accompany the body to the funeral home but was directed to the body by the people at the funeral home when he arrived. After such testimony, the appellant stated: “We object to that” which was overruled.

Chemist Maupin, who is in charge of the Crime Laboratory, was recalled and further testified:

“A Yes sir, I did. I compared the hair that I had taken out of the evidence box with the hair that I found on the floor.
“Q Did you actually take this out of the evidence box yourself?
“A Yes sir, I did.
“Q You opened it and took it out, yourself ?
“A Yes sir; that’s correct.
“Q All right. * * * State what you did with the sample of hair, Mr. Maupin?
“A I took the sample of hair, mounted it on a slide and examined it. And it was characteristic of human hair.
“Q Did you compare it with any other hair?
“A Yes, I compared it with hair from the deceased.
“Q All right. * * * And what is your opinion concerning that comparison ?
“A The comparison showed that the hair found in Room 2, was similar to the hair from the deceased, in color and in texture.”

The state called Mrs. Nelma Jeneva Banker, who testified in part:

“ About nine thirty or ten, nine-thirty a. m., or ten a. m., on July 4th, 1965, I went downstairs and outside to where our car was parked. I got some matches out of the car, and when I started back up to the room, at the foot of the stairs, I looked into the room located at the end of the hall, and saw Bennett laying on the floor. A man was sitting on the bed and and kicked Bennett between the shoulders with his foot.’ ’’

The facts and circumstances surrounding the death of the deceased, when considered as a whole, are sufficient to warrant the jury’s conclusion that the deceased’s name was Ralph Lucas Bennett, and that the appellant caused his death as charged.

Error is urged on the ground that the trial court erred in permitting the state to impeach Banker, its own witness.

The state’s witness Banker testified, that on leaving her apartment she saw a man she knew only as Bennett, lying on the floor in a room, and also saw a man who looked like the appellant sitting on the bed in the room.

Apparently, upon the failure of the witness Banker to testify as expected, the state’s attorney exhibited a written statement to her which she admitted signing. He then read the following portion of said statement: “A man was sitting on the bed and and kicked Bennett between the shoulders with his foot.” When said portion of the statement was read, Mrs. Banker was asked: “Is that what happened?” and she replied, “Yes, sir.” In light of the admission by Mrs. Banker that the quoted part of her written statement correctly related the facts, the appellant’s contention is overruled.

It is asserted as a ground of error that, the trial court erred in allowing the trial to proceed without first having a hearing to determine appellant’s competency to stand trial on the merits.

There is no authenticated fact or circumstance appearing in the record which would direct the attention of the trial judge to or give him notice of any abnormal mental condition of the appellant at or during the trial which could affect his mental capacity to stand trial. According to the record no hearing was called for during the trial, and the ground asserted as error is overruled.

In Formal Bill of Exception No. Two the appellant complains of the state’s attorney’s conduct, during his argument to the jury following a verbal description of appellant’s treatment of the deceased, when he repeatedly, in a loud and noisy manner, jumped for about two minutes upon a piece of paper he had thrown on the floor.

The qualification of the bill which the appellant accepted, recites that the state’s attorney only jumped upon the paper three times, and that the court could not state what image the jury might have had; that the objection thereto was: “We object to this outrageous thing, and furthermore the evidence was that he was not on his chest, but that he was on his stomach”; and there was no request for an instruction to the jury to disregard such action.

In light of the record including the testimony shown by the summary herein of all the evidence in the case, no error is presented by the bill.

The judgment is affirmed.


author: LANGDON, Justice.

text:
    Timmie Gayle SMITH et vir, Appellants, v. John P. WALLER et ux., Appellees.
    No. 16856.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 17, 1967.
    Rehearing Denied Dec. 22, 1967.

      Byrom, Wright, Butcher & Prager, and Don Prager, Fort Worth, for appellants.
    Chambers & Hight, and John H. Chambers, Arlington, for appellees.
   OPINION

LANGDON, Justice.

This is an adoption proceeding. Timmie Gayle Ellison and Milton Edward Ellison were formerly husband and wife. Two children were born of their marriage, which was dissolved by divorce on March 10, 1960. In its judgment the court awarded the custody and control of Debra Gayle Ellison, a girl 3½ years of age (in 1960), to the mother (with visitation privileges to the father), and the custody and control of Miltonette Arlene Ellison, a girl one year of age (in 1960), to the father (with visitation rights to the mother). Visitation privileges as to each child were likewise granted to the paternal and maternal grandparents. The father, Milton Edward Ellison, was ordered to pay the sum of $7.00 per week for the support of Debra Gayle Ellison. The mother, Timmie Gayle Ellison, was not required by the divorce judgment to make child support payments.

Subsequent to the divorce each of the parents remarried. The mother, Timmie Gayle Ellison, married Charles W. Smith in 1961. They reside in California where the mother has resided since sometime prior to the divorce. Debra Gayle Ellison is now and has always been in the care and custody of her mother.

Miltonette Arlene Ellison, hereinafter referred to as Toni, whose custody and control was awarded to her father (Milton Edward Ellison), resides with Emma Luvader Waller, her paternal grandmother, and her husband, John P. Waller, the mother and stepfather, respectively, of her father. Except for approximately twelve months she has been with the Wallers her entire life. Her residence with them commenced during the period her parents were separated prior to the divorce in 1960. Since the divorce the legal custody and control of Toni has been vested in her father who under the judgment has the duty and the responsibility to provide for her care and support. It is he and not the appellant who arranged for his parents to assume the physical custody and control of Toni. The record does not reflect any objection on his part to the fact that his parents, who were given visitation rights under the divorce judgment of I960, have assumed the entire burden of the physical custody and care of his daughter which was imposed upon him by the court. The natural mother has made no protest as to this arrangement nor is she required to do so. She has not in the past sought a change in custody nor does she seek such a change by these proceedings. Her parents, Mr. and Mrs. T. M. Eure, the maternal grandparents, and the Wallers, have until these proceedings, been very cordial and cooperative in connection with visitation rights, as have the natural parents. Through her parents, the appellant has maintained a source of information as to the welfare and needs of her child, Toni. The mother has never been called upon by her former husband or his parents for any financial assistance. Nor is there anything in the record to indicate that she would have failed or refused to assist financially had she been requested to do so.

During the period following the divorce and leading up to these proceedings the mother visited her child in Tarrant County on many occasions. There is testimony and other evidence that she provided some money and gifts of clothing and other items for her daughter and sent messages and greetings to her from time to time. It is apparent that the some two thousand miles separating California and Texas would limit visitations on the part of the mother because of the time and expense of travel involved.

It was against this background that Emma Luvader Waller and husband, John P. Waller, with the written consent of the natural father, filed a petition to adopt Toni, without the consent of the natural mother who vigorously contested the proceedings.

On February 10, 1967, the court granted the adoption solely upon that portion of Article 46a, Vernon’s Ann.Civ.St., Sec. 6, which provides in part as follows: “Except as otherwise provided in this Section, no adoption shall be permitted except with the written consent of the living parents of the child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, or if such parent or parents shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability, then, in either event, it shall not be necessary to obtain the written consent of the living parent or parents in such default * * *

The appellant has perfected her appeal from the judgment of adoption.

We reverse and render.

“While adoption statutes are to be liberally construed in favor of minors in order to effectuate their beneficial purpose, Woodall v. Schmudlach, Tex.Civ.App., 299 S.W.2d 780, the rule of strict construction applies in favor of a non-consenting parent. Jones v. Willson, Tex.Civ.App., 285 S.W.2d 877. Especially so ‘in those cases where it is claimed that owing to misconduct his consent to the adoption is not required. Every intendment should be made in such case in favor of the parent’s claim; and where the statute is open to construction and interpretation, it should be construed in support of the parent’s natural rights.’ 1 Am.Jur. pp. 626, 627.” Stinson v. Rasco, 316 S.W.2d 900 (Dallas Civ.App., 1958, no writ hist.).

Since it is undisputed that the natural mother did not give her consent to the adoption, it was necessary, therefore, that the requirements of the statute be established under “the rule of strict construction” in favor of the non-consenting parent before the application for adoption could properly be granted. Johnston v. Chapman, 279 S.W.2d 597, 599 (Amarillo Civ.App., 1955, no writ hist.).

“It has been held in a number of cases in other jurisdictions that the abandonment or desertion of a child, as contemplated by statutes similar to ours, consists of an absolute relinquishment of the custody and control of the child and the willful purpose and intention to relinquish the benefit of the rights to which the parent is entitled under the law. Merely permitting the child to remain for a time in the undisturbed care of others does not constitute such a desertion or abandonment of the child as would deprive the parent of the right to prevent its adoption by others. Truelove v. Parker, 191 N.C. 430, 132 S.E. 295; In re Cozza, 163 Cal. 514, 126 P. 161, Ann.Cas.1914A, 214; In re Kelly, 25 Cal.App. 651, 145 P. 156. See, also, Stanton v. Franklin, [Tex.Civ.App.] 236 S.W. 151.” Platt v. Moore, 183 S.W.2d 682 (Amarillo Civ.App., 1944, ref., w.m.).

See 35 A.L.R.2d, page 662, as to what constitutes abandonment or desertion of a child by its parent or parents within the purview of adoption laws. At page 664, § 2, it is stated: “The overwhelming weight of authority is that an abandonment or desertion within the purview of the adoption law must be absolute, complete, and intentional.” At page 664, § 3, of the same text, under “General definitions,” appears the following: “Among the numerous definitions of abandonment of a child within the purview of the adoption laws, the most frequently approved one is that abandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.”

“Where, as here, the father has been awarded custody of child in original divorce proceedings, the mother cannot, during such period, be chargeable with desertion (abandonment). Freeman v. State, 103 Tex.Cr.R. 428, 280 S.W. 1069; Jones v. State, 159 Tex.Cr.R. 18, 261 S.W.2d 324; Gomez v. State, 163 Tex.Cr.App. 99, 289 S.W.2d 269, 73 A.L.R.2d 958. This rule has been held controlling of adoption cases where the exceptions of art. 46a are sought to be established. Lee v. Purvin, Tex.Civ.App., 285 S.W.2d 405; Purvin v. Lee, Tex.Civ.App., 300 S.W.2d 339; Ex parte Payne, Tex.Civ.App., 301 S.W.2d 194.” Trotter v. Pollan, 311 S.W.2d 723 (Dallas Civ.App., 1958); Trotter v. Pollan, 158 Tex. 494, 313 S.W.2d 603 (1958).

Under these authorities the appellant is not chargeable with desertion or abandonment during the period subsequent to the divorce because the father was awarded custody. Since the child was only one year old at the time of the divorce the appellant is not chargeable with a two year period of abandonment prior to the divorce action in 1960.

As applied to the particular facts of this case it would appear that the rule in Trotter v. Pollan, supra, above quoted relating to desertion (abandonment) should be the same on questions relating to support where as here the father and not the mother was required to pay child support in the original divorce proceedings.

“Where the divorce decree provides for the support of the children there is no liability, as between the parties, other than as ordered by the court. Thus, as between the father and mother, the father may be relieved from his liability of support where the decree in the suit for divorce imposes that liability on the mother.” 21 Tex.Jur.2d 8, § 385.-

“When the divorce decree does not provide for child support, its silence places the duty of support, as between the parties, on the father, since he has the primary duty of support.” 21 Tex.Jur.2d 9, § 386.

“The father must continue to discharge his obligation to support his children of a dissolved marriage, when this obligation exists, even though the divorce decree is silent as to custody or awards custody to the mother, and regardless of the person in whose hands the child is placed. Not even the fact that the mother, in whose custody the children are placed, has ample means and is well able financially to support the children affects the father’s obligation of support. Nor does remarriage of the divorced wife and support of the child by her present husband relieve the former husband from his responsibility to support his children.” 21 Tex.Jur.2d 12, § 390.

Although the obligation to support and educate their children rests on both parents, the duty to do so is primarily that of the father as head of the family. He is not released from his obligation because of the fact that his child or children may be in the custody of other persons. Dilger v. Dilger, 271 S.W.2d 169 (Amarillo Civ.App., 1951, no writ hist.).

We are unable to find any evidence in this record which will support a finding that the appellant voluntarily abandoned her child. It was the father, not the appellant, who placed Toni with his parents and left her to their care, custody, control and management. The appellant was not consulted on the matter. She was not given the opportunity of assuming the care and custody of her child as an alternative to the Wallers. There is no indication in the record that she would have refused such an alternative had the opportunity been afforded her.

Since custody was awarded to the father under the 1960 divorce judgment the appellant thereafter was powerless to exercise any control, care or management over her child. There were no proceedings by which the original custody or child support provisions of the 1960 divorce judgment were changed or sought to be changed.

The Wallers made no protest to the appellant nor did they complain to her about additional expenses involved in their care and support of the child.

As previously stated, the Wallers were given the privilege of reasonable visitation with both children under the 1960 divorce judgment. It was not incumbent upon the appellant to inquire into any extended period of visitation or physical custody exercised by the Wallers in the absence of some complaint or protest on their part.

In view of our holding in this case we see no reason to discuss the numerous other questions and complicated facts raised on this appeal.

The judgment of the trial court granting the adoption is reversed and judgment here rendered dissolving and setting aside said adoption decree.

Reversed and rendered.