author: WOODLEY, Judge.

text:
    Mavis WHITT, Appellant, v. The STATE of Texas, Appellee.
    No. 38507.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.
    Payne Roye, Graham, (On Appeal Only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Appellant waived a jury and pleaded guilty to an indictment the first count of which alleged the offense of felony theft and the second, the offense of receiving and concealing stolen property.

The judgment entered upon said plea recites:

“and the Court after having heard all the evidence for the State and the defendant and argument of counsel is of the opinion and so finds that the said defendant is guilty as confessed by him of the offense of receiving and concealing stolen property as charged in the indictment, Second Count and finds that his punishment should be confinement in the State penitentiary for a term of five (5) years.
“It is therefore CONSIDERED, ORDERED, ADJUDGED and DECREED BY THE COURT that the said defendant Mavis Whitt is guilty of the offense of theft over $50.00, as charged in the indictment as confessed by him in his said plea of guilty herein made, and that he be punished, as determined by the Court by confinement in the state penitentiary for a term of five (5) years * * * ”

The imposition of sentence was suspended and probation was granted, one of the conditions being that appellant:

“4. Avoid places of disreputable or harmful character and all other places where gambling is permitted or where liquor is sold, including pool halls, beer taverns and liquor stores.”

Petition to revoke probation was filed and after a hearing order was entered revoking probation upon the court’s finding that appellant had violated the terms of her probation “in that she worked in and frequented beer taverns and other places of disreputable and harmful character, and otherwise violated the conditions of her probated sentence.” This appeal is from the order revoking probation.

An examination of the statement of facts reveals no evidence to sustain the court’s findings or to show that appellant violated any condition of her probation unless it be the undisputed fact that she worked as a waitress at a reputable place of business in a wet area where beer was lawfully sold, thereby enabling her to support and keep her 15 year old daughter in school.

The trial court abused his discretion in revoking probation for the reasons assigned in his order.

The sentence cannot stand for the further reason that it is not supported by a valid judgment.

The judgment adjudges appellant guilty of “theft over $50.00” upon a finding of the court from the evidence that appellant was guilty of receiving and concealing stolen property.

The order revoking probation and pronouncing sentence is reversed.


source: Caselaw Access Project

author: McDONALD, Presiding Judge.

license: Public Domain

text:
    Rufus Harvey SEAY, Appellant, v. The STATE of Texas, Appellee.
    No. 38318.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1965.
    Rehearing Denied Nov. 17, 1965.

      Charles W. Tessmer, Dallas (on appeal only), Emmett Colvin, Jr., Dallas (on appeal only), Thomas J. Upchurch, Jr., Amarillo (on appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is murder; the punishment, confinement in the Texas Department of Corrections for ten (10) years.

We shall pretermit a discussion of the facts, in view of our disposition of this case.

Appellant filed an application for a suspended sentence. In support of this application, he adduced testimony from his mother, Mrs. Irene Kite, that he had never been convicted of a felony in this or any other state. No questions were elicited showing either the good or bad reputation of the appellant as a peaceable and law-abiding citizen in the community in which he lived. The state did not ask Mrs. Kite any questions, making no cross-examination at all. The appellant adduced no further testimony in support of his application for a suspended sentence. The state put on no character witnesses, nor did it bring out any testimony on cross-examination from any witness, showing the reputation of the appellant

Immediately after the state rested its case in chief, the prosecutor announced to the Court, out of the -presence of the jury, “Judge, before you bring the jury in, I would like to announce to Mr. Nahas that I don’t want to be unfair to my position or to their position, but if character witnesses are used, I have some ‘have you heards’ here that I can go into on the question of good faith, in the absence of the jury. If you want to, we can do it now.” Appellant’s counsel agreed and the prosecutor enumerated a series of offenses wherein he stated that he intended to ask character witnesses, if appellant put them on, “have you heard”, followed by a recital of these various offenses charged against appellant. Appellant’s counsel stated at this juncture that he was taken by surprise, and desired a conference with his co-counsel. Time was given for the conference by the Court. The record then reflects the presence of the jury in the box. Nothing further is shown; that is, no stipulation nor agreement, nor anything to indicate a future course of action to be followed by the parties. In the course of cross-examination of appellant the prosecutor inquired, “Well, you have filed an application for a suspended sentence, have you not, sir?”, and the witness responded, “I did, sir. Yes, sir.” The prosecutor then asked this question, “And you would say that your reputation in the community' as being a peaceful and law-abiding citizen is good?” Objection was then taken by appellant’s counsel and before the Court made a ruling thereon, the prosecutor withdrew the question. This summary embraces the entire testimony adduced with reference to a suspended sentence or appellant’s reputation as a peaceable and law-abiding citizen.

One -of appellant’s counsel, in his remarks to the jury in opening argument, stated that appellant had filed Ris application for a suspended sentence and that the state didn’t come into Court and dispute the fact that appellant had never been convicted of a felony in Texas or any other state. Counsel further stated that, “* * * if he (the prosecutor) is fair with you, he will tell you, ‘We searched the life of this young man and couldn’t find anything against him.’ And that is why they didn’t try to show he had been convicted of a felony in Texas or some other state.” Counsel further commented that various law enforcement officers were available to the state but that it remained “just as undisputed, that this young man had lived a good life. He has never been convicted, charged, arrested for anything, had any trouble whatsoever, until this present unfortunate tragedy.” The state made no objection to this argument.

During the closing argument for the state the prosecutor replied to appellant’s counsel, “He said we didn’t find anything against him, that he has never been convicted, charged or jailed. Now, if he hadn’t of said that, if he hadn’t of given you the wrong impression, I wouldn’t tell you what I am going to tell you, now. But since he has said that, it is my duty to answer it. And in answer to that statement, I will tell you this. On June the 25th, 1952 — ” objection was then taken that it was on matters not offered in evidence and unsworn testimony, and the prosecutor replied that it was in answer to appellant’s argument. The Court replied, “Well, it is in answer to your argument, Counsel.” The Court then stated that “if you went out of the record, Counsel, he has a right to go out of the record.” There was then some dispute among counsel as to just exactly what appellant’s counsel had said in his opening argument, and the court reporter was requested to find out what the argument was, out of the presence of the jury.

The requested portion of the argument was read to the Court and attorneys out of the presence of the jury. The prosecutor was then sworn, out of the jury’s presence. The Court then asked the prosecutor what he was going to say, and he replied that he was going to say that appellant was charged on June 25, 1952, with felony swindling; that he was filed on or charged on May 16, 1955, of being in possession or riding in a stolen automobile; and that he was charged on May 4, 1955, with being drunk. The Court then ruled, “The Court holds that the argument of Mr. Wolters, one of the defense counsel, to the effect that the defendant has never been arrested or charged with any offense or convicted of any offense, would authorize the District Attorney to make the argument that he has been arrested and charged with offenses. Now, it is true the record does not show that he has ever been convicted of a felony or a misdemeanor offense involving moral turpitude, but as to whether he has been charged or arrested for it, I think the District Attorney has the right to make that kind of argument.” Objection was then taken that the argument is unsworn testimony (and it is not in answer to any argument of counsel). The jury was then brought in, at which time the prosecutor proceeded with his argument, “For the record, and in reply to Counsel’s argument, and further for the record, I have been sworn in this case, and the record shows that on * * Objection was then taken, “He has been sworn? Is he testifying as a witness here?” The prosecutor replied, “Well, you objected that it was unsworn testimony. And for the record, I am stating that I have been sworn, as you know.” The Court, “He was sworn, in the absence of the jury, gentlemen.” Objection was then taken that it was tantamount to re-opening the case and if it was going to be re-opened for that purpose, then it should be re-opened to allow appellant to reply to it. The Court stated, “Go on with the argument. I will deny you that right.” The prosecutor then proceeded, “On June 25, 1952, the record of the Harris County Sheriff’s Office — Poliee Department — reflects that Mr. Seay, Rufus Seay, the defendant in this case, was arrested for the offense of felony swindling; on May 16, 1955,” — objection was -then taken “that it was highly inadmissible and is tantamount to the re-opening of the case. It is unsworn testimony, but I guess he is going to testify, anyway. It is not supported by the record, it is highly prejudicial and inflammatory, and no proper predicate has been laid for such argument. Also, there are no final convictions of any offense that are referred to and it is the proof of a specific act of misconduct and is not admissible to prove general reputation and it is also hearsay.” The Court then replied that “it would not have been admissible as evidence, but Counsel for the state claims it is in answer to the argument of defense counsel.” The Court then told appellant’s counsel that if they wanted to take exception to anything else that the prosecutor stated, in the way of specific offenses, to wait until he gets through. The prosecutor then stated, “The record reflects that Mr. Seay, on May 16, 1955, was arrested for riding in a stolen car; and he was filed on under case No. etc.” Objection was again taken, and the Court stated that the statement would not be admissible in evidence, “but he offers it in answer to the argument of defense counsel. I will admit his argument for that purpose.” The prosecutor then proceeded and stated that “the record reflects, in reply to Counsel’s argument, that on November 6, 1954, Mr. Seay was filed on for the offense of vagrancy, before the Honorable W. C. Ragan, Justice of the Peace.” Objection was again taken, and the Court once more stated, “None of it would be admissible in evidence, but by reason of the argument of defense counsel, the District Attorney is going out of the record to answer it. I will admit his argument, I overrule your objection.” The prosecutor then enumerated various offenses and charges; that appellant was charged with misdemeanor theft; accused of being drunk; filed on for the offense of driving while intoxicated, paid a fine and served time in jail; arrested for allegedly stealing a car, gave an assumed name and paid a fine; was placed in jail for negligent collision at Dallas. All of these various offenses were particularized as to date, and each time the prosecutor mentioned one of them objection was taken and the Court gave the same ruling as previous. Objection was taken that the Dallas negligent collision offense didn’t give the year. Inquiry was then made of the prosecutor, by one of appellant’s counsel, “Where does this come from?” and the prosecutor replied: “Out of our file.” The prosecutor then mentioned that appellant was filed on for drunk and aggravated assault in Galena Park and D. W. I. and for no Operator’s License, on October 28, 1957. This concluded the prosecutor’s statement as to the series of offenses and charges. Objection was taken in each instance and in each instance the -Court stated, “All right. Same ruling.” The Court then inquired, “All right. Are you through with it, Mr. Ernst?” Mr. Ernst -replied, “Yes.” The Court then stated, “I would state to the jury that none of that would be admissible in evidence, as you can only introduce proof to discredit a defendant by showing that he was convicted of a felony— not charged with it — but that he was actually convicted of a felony or of a misdemeanor involving moral turpitude, which is not too remote, which, as applied to this defendant, would be, let’s say, ten years. All right. You may go on. I have only permitted the District Attorney to make this argument, because he said it is in answer to argument o.f the defense counsel, Mr. Wolters, who went out of the record, according to the District Attorney’s version of it, and the District Attorney claims he has a right to go out of the record to answer it.” Counsel for appellant at this time then moved the Court to declare a mistrial due to the highly irregular proceedings, the motion was overruled and the prosecutor continued with his argument.

We held in Matthews v. State, 113 Tex.Cr.R. 457, 21 S.W.2d 1047, that the effect of an application for a suspended sentence was to put defendant’s reputation in issue. In that case the state put on witnesses and showed defendant’s bad reputation. Smith v. State, 165 Tex.Cr.R. 137, 305 S.W.2d 571, is similar factually to this case in that there the appellant’s mother testified, as did the mother of appellant in this case, that he had never been convicted of a felony in support of his application for a suspended sentence. The court permitted two of the state’s witnesses to testify in Smith’s case that appellant’s general reputation for being a peaceable and law-abiding citizen was bad, over objection that no predicate had been laid for such testimony in that appellant had not offered any testimony as to his character and reputation. We held that by filing his application for a suspended sentence appellant placed his reputation in issue, which authorized the state to introduce evidence on the issue. In Taylor v. State, 157 Tex.Cr.R. 124, 247 S.W.2d 127, the appellant testified that she had never before been convicted of a felony, but no witnesses for the state or the appellant had testified that appellant’s general reputation for being a peaceable and law-abiding citizen was good or bad. The prosecutor then argued that appellant had not called a single witness to testify that she was a good girl, what a good life she had lived and that she was a peaceable, law-abiding citizen, and since this was her first major crime she should receive a suspended sentence. Appellant objected to the argument and said 'it was an incorrect statement of the law relative to a suspended sentence. This Court said that when appellant filed her application for ■ a suspended sentence, she placed her reputation as a peaceable and law-abiding citizen in issue and thereby authorized either party to introduce evidence upon that reputation. State’s counsel was justified in arguing that appellant had the right to bring witnesses supporting her good reputation and thereby lend support to her application for a suspended sentence. Having the right to make such argument, state’s counsel was equally justified in commenting upon the failure to call witnesses to attest her good reputation. In another Smith case, Smith v. State, 162 Tex.Cr.R. 237, 283 S.W.2d 936, a state’s witness testified -that he was acquainted with appellant’s general reputation for being a peaceable and law-abiding citizen and stated that it was bad. Appellant objected on the ground that the state was attempting to go into his reputation prematurely. We held, “The court did not err in permitting the State, while putting on its testimony in chief, to offer proof as to appellant’s bad reputation. The appellant having filed his application for a suspension of sentence placed his reputation in issue and either party was authorized to introduce evidence on such issue.” In Scarber v. State, 156 Tex.Cr.R. 542, 244 S.W.2d 207, appellant filed an application for a suspended sentence and introduced a witness who testified that he had never been convicted of a felony in this or any other state. Nothing was asked about his general reputation, nor was it necessary to prove same to comply with the statutory requirement. We held -that “[t]he filing of his application, however, gives the state the privilege of proving his general reputation in order that the jury may determine whether or not they want to give the party on trial the benefit of the suspended sentence law. It does not give the state the authority to go into specific acts and conduct and to prove specific charges against defendant.”

It is obvious from what transpired upon the trial of this cause that both the state and the trial court were laboring under the misapprehension that it was proper to “fight fire with fire”. True, appellant’s counsel got outside of the record and made a statement not supported by the evidence, but we do not feel that his action in this respect licensed the prosecutor to go to the extreme ends that he did in replying. So far as we can determine, the error brought forward in this case is one of first impression in this state. We entertain no doubt that the prosecutor was given far greater latitude in replying than he was entitled to do. If the state is precluded from establishing by evidence specific prior offenses committed by an appellant or charged against an appellant in a case of this kind, and we readily agree that the state is prohibited from so doing, how then can the state adduce such proof at the time of its argument to the jury, or argue such specific offenses or charges? The state cannot do so. We do not feel that such an extension of judicial authority is necessary to protect the rights of the state, nor would such an extension insure a fair and impartial trial to a defendant. The remarks made by the prosecutor or the facts testified to by the prosecutor in this case (it is difficult from the record to determine whether the prosecutor was a witness or an advocate) were improperly admitted. Such remarks or evidence were no doubt highly inflammatory and prejudicial to appellant and stripped him of the fair and. impartial trial that he was entitled to receive.

The complained of testimony admitted as a “dying declaration” was properly received as an exception to the hearsay rule under the theory of “pain and suffering” and also because of its utterance being in close proximity to the event, would properly be admissible under the res gestae rule.

We further observe that upon another trial of this cause the prosecutor should not be allowed to refer to appellant in such caustic language as “here is a man on his oath to God. He lies on his oath to God.”

While the remarks of appellant’s counsel seem to have been purposely or thoughtlessly made after notice by the prosecutor that he had some “have you heards”, and he had fully apprised appellant’s three attorneys the position of the state with reference to character witnesses, it is our conclusion that such remarks were not such as to open up the wide avenue of traffic for the state as was here done.

The judgment is reversed and the cause remanded.


author: MORRISON, Judge. WOODLEY, Judge

text:
    Dorothy BRADEN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 38399-38402.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.

      James F. Fanning, Comanche, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

In three of the above styled causes this appellant was charged with the unlawful sale of whiskey in a dry area and in one she was charged with the unlawful possession of whiskey in a dry area. In each ease the punishment is a fine of $200.00. The permissible punishment for each of such offenses is imprisonment in jail.

The statement of facts and bills of exception reflect that after her arrest appellant, was taken before the court where she entered a plea of not guilty to .the offenses charged. Shortly thereafter she was taken to a private room by the arresting officer and was brought back before the court a few minutes later at which time she plead guilty. Appellant was neither represented by counsel prior to nor at the time of the entry of her plea of guilty in each of the above cases on March 25, 1965, nor was she advised of her right to be represented by counsel. The bill certifying indigency is not qualified.

Appellant relies upon the writer’s dissent in Pizzitola v. State, Tex.Cr.App., 374 S.W.2d 446, and upon Harvey v. State of Mississippi, 5 Cir., 340 F.2d 263.

Since the rendition of the majority opinion in Pizzitola v. State, supra, this Court has in Ex parte Ruckman, and Ruckman, Tex.Cr.App., 392 S.W.2d 136, recognized the soundness of the holding of the Fifth Circuit Court of Appeals in Harvey v. State of Mississippi, supra, when we quoted therefrom as follows:

“The failure of notice to Harvey of his right to the assistance of counsel invalidated his guilty plea and rendered his conviction and incarceration constitutionally improper. We therefore reverse the judgment of the trial court and remand the case for the entry of judgment ordering the release of the appellant from custody on the present conviction and sentence.”

For the failure of the court to inform this appellant of her right to be represented by counsel prior to her plea of guilty, the judgment in each case is reversed and the causes are remanded.

WOODLEY, Judge

(dissenting).

The majority opinion confuses the right to be represented by counsel, the right to have counsel appointed or furnished to an accused unable to employ or obtain cotinsel because of indigency, and the requirement under the facts before the Court in Harvey v. State of Mississippi, 340 F.2d 263, under which the Fifth Circuit Court held that the failure of notice to Harvey of his right to the assistance of counsel rendered his incarceration constitutionally improper.

There was no question of indigeney in Harvey v. State of Mississippi. It is clear to the writer that had a fine been assessed, (which Harvey expected' and believed to be the only punishment for the offense to which he pleaded guilty) the conviction would not have been set aside for the reason quoted- in the majority opinion.

It is also clear to the writer that Harvey v. State of Mississippi does not require that the judge inform the defendant of his right to the assistance of counsel. So long as the defendant has notice or knows of this right it is immaterial whether he is so informed by the trial judge himself. It is not a matter of ritual, but of notice or knowledge.

Pizzitola v. State, Tex.Cr.App., 374 S.W.2d 446, cited in the majority opinion, relates to the lack of counsel to represent an indigent defendant in a misdemeanor case as denial of a fundamental right under the Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

If it be the intention of the majority to overrule this decision they should so state. It is the view of the writer that the quoted holding in Harvey v. State of Mississippi, supra, does not require or warrant such action.

As to Ex Parte Ruckman and Ruckman, Tex.Cr.App., 392 S.W.2d 136, the opinion clearly shows that it “is not a case wherein Petitioners were not told of their right to counsel.”

There is no allegation or proof that appellant was not aware of her right to be represented by counsel before she pleaded guilty.

I respectfully dissent.


text:
    Ex parte Jack CARSWELL.
    No. 38479.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1965.
    Rehearing Denied Nov. 17, 1965.
    J. R. Ramsey, Louis G. Mehr, Houston, for relator.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, John Wildenthal, Jr., City Atty., Homer T. Bouldin, Trial Supervisor, City of Houston, Houston, and Leon B. Douglas, State’s Atty., Austin, for respondent.
   WOODLEY, Judge.

This is a habeas corpus proceeding seeking release from confinement under capias pro fine following conviction in corporation court for violation of an ordinance of the City of Houston.

Any district judge or judge of a county court, as well as any Judge of the Court of Criminal Appeals, has jurisdiction to issue the writ, grant the relief sought and order the release of the petitioner from custody.

The petition herein was presented to Judge Morrison, of this Court. He issued the writ returnable instanter before Hon.. Edmund B. Duggan, Judge of Criminal District Court of Harris County, at the Courthouse in Houston, and set bond for petitioner’s appearance.

judge Morrison’s order directed that Judge Duggan “hear any evidence that may be offered and render such judgment as he finds proper concerning the legality of petitioner’s confinement.”

Evidence was heard by Judge Duggan and, upon motion of the State, a transcript thereof has been forwarded to this Court. However, no judgment concerning the legality of petitioner’s confinement appears to have been entered.

The relief prayed for is denied without prejudice to petitioner’s right to seek entry of judgment on the petition pending before Judge Duggan.


author: BELCHER, Commissioner.

text:
    Daniel Odell McDONALD, Appellant, v. The STATE of Texas, Appellee.
    No. 38259.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1965.
    Rehearing Denied Nov. 17, 1965.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, ninety-nine years.

The deceased, a widow, age 82, operated a suburban grocery store consisting of two rooms. The front room was used for the store and she lived alone in the rear room. At approximately 6 A.M., June 12, 1964, the body of the deceased was found on the bed in the rear room. The body bore four small puncture wounds in the left breast, a cut upper lip, male sperm in the vagina, and a plastic bag was pulled down over her head and twisted on one side. A fork with blood on it was found near the body. The building had only two outside doors, one in the front which was open and the rear door was closed and locked, when the body was found. There were no signs of a forced entry into the building.

An autopsy performed on the body of the deceased showed that her death was caused by strangulation, although the puncture wounds in the breast may have contributed to her death. It was estimated that she had been, dead at least six hours when the body was found. A physician expressed the opinion that the wounds in the left breast could have been inflicted with the fork exhibited to him while he was testifying. The fork had been identified as the one found near the body.

The appellant, age 19, was in military service and had returned home on leave on June 11. Appellant’s brother, M. J. McDonald, who lived about two blocks from deceased’s store, testified that appellant was staying at his home while on leave; that he first saw the appellant about 6 P.M., June 11, and loaned him his car about 6:30 or 7 P.M., and the appellant left in the car going to visit a friend and had not returned about 11 P.M.; and that the appellant was in his home about 6:30 or 7 A.M. the following morning, June 12.

At approximately 3 P.M., June 12, boot tracts were discovered near the store of the deceased, and they led to and ended at the left front door of the place where a car had been parked for a short time about 11:30 P.M. the previous night about two blocks from the store.

The car used the night of June 11, by the appellant which belonged to M. J., his brother, and a pair of boots of the appellant which were taken from the bedroom occupied by him were taken to the scene of the tracks found near the store. From a comparison made about 4:30 or 5 P.M., June 12, of the car tracks and the boot tracks, respectively, the testimony reveals that they appeared to be the same. The testimony further shows that the appellant’s brother delivered to the officers a handbag, some gloves and $132 in money contained in the bag, which he had taken from the bedroom occupied by the appellant the previous night.

The testimony shows that the appellant made two written statements to Sheriff Saunders, one on June 12, and the other June 24, and that they were made in compliance with the provisions of Art. 727, C.C.P. The statements were admitted in evidence.

The statement dated June 12, recites in part as follows:

“My name is Daniel Odell McDonald and I am a white male, 19 years old, I was born September 18th, 1944. * * * I am presently on leave, (from the Army.) * * * Last night I borrowed my brother M. J. McDonald’s car. * * * It was about 7 or 7:30 P.M. at that time. * * * I got back in to Stanton about 10:45 P.M. and saw my grandmother McDonald’s light still on in the back of the store where she lives. I circled around the store a couple of times and then parked my car one block north and one block east of the store. I walked to the back door of Granny’s house and hollered at her. She asked me what I wanted and I told her I wanted some money. She asked me what for and I told her I was in trouble. She then opened the door and let me in. I told her I needed $200.00. She asked me what I had done and I didn’t answer. I just grabbed her around the mouth and turned the light off. She put up a fight but I pushed her over on the bed and held my hand over her mouth and nose real tight. There was a plastic bag hanging on a little clothesline in the room. After I held my hand over her mouth about five minutes I let her go. And she was making an awful noise. So I grabbed the plastic bag and held over her mouth. She quit gurgling then. I raped her. I wasn’t sure she was dead so I put the plastic bag over her head to make sure. I started looking for money, bills. I didn’t want any silver, it was too hard to handle. I found a big fork so I stabbed her several times with it. I was pretty sure she was dead, I don’t know why I stabbed her. I got $170.00 and something. I don’t remember just how much. I got the money out of the cash drawer and out of cigar boxes next to the cash drawer. I unwired the front screen and left. I went back to the car. It had stopped raining at that time. I was in Granny’s house about an hour and a half or two hours. I spent a little money today and some more is in my bags at M. J.’s house. I have some here in my billfold. I went through the eighth grade in school. I can read and write the English language. I have read the above statement and it is true and correct.”

The other statement dated June 24, reads in part as follows:

“My name is Daniel Odell McDonald and I am a white male, 19 years old. I was born September 18th, 1944, my home is at Stanton, Texas. The night I killed and raped my grandmother, Mrs. Delzee McDonald, I was not in Army uniform. I had on a blue checked western shirt, white jeans, white T shirt, jockey shorts and boots. I have examined a handkerchief shown me by Sheriff Dan Saunders, it is my handkerchief, I had it on the night of June 11, 1964, and used it after I raped my grandmother. * * * I'left it on the bed.”

The appellant did not testify or offer any evidence in his behalf.

The trial court held a separate hearing in the absence of the jury on the issue of the voluntary nature of the written statements of the appellant, and prior to their admission in evidence before the jury made an independent finding that they were voluntarily made.

The issues as to the voluntary nature of the written statements were properly submitted to the jury in the Court’s charge.

The evidence is sufficient to support the conviction.

Reversal is sought only on the ground that the written statements were unlawfully obtained from the appellant in that he was not advised that he was entitled to be represented by counsel before they were made or that he had the absolute right to remain silent and not make any statement.

Following the finding of deceased’s body about 6 A.M., June 12, the appellant was in the store with other members of the family during the morning while the investigation was being conducted.

After the discovery of the boot tracks leading from the store to the tracks where a car had been parked, Officers Bruton and Posey went to M. J.’s home where they found M. J. and the appellant standing in the yard. Bruton asked M. J. to bring his ear to the scene of the tracks in question and also asked the appellant to come. After they arrived “He (appellant) just stood around,” while test tracks were being made with M. J.’s car. When the appellant was asked if he stopped his car there (meaning the place where the parked car was seen), he replied that he had stopped somewhere but he did not remember the place because he had been drinking. Bruton showed the appellant the car tracks, and how they compared, and they observed the boot tracks as they walked the route of the boot tracks leading from the store to where a car had been parked.

Officer Bruton testified in part as follows:

*1*
“Q. While you were talking to him (appellant) did he step out and put his foot beside one of ’em (boot tracks) and it didn’t fit?
“A. Yes.
“Q. He did that voluntarily to show it didn’t fit?
“A. I think he did that voluntarily. Because I could see that it didn’t fit anyway.
* * * * * *
“Q. By showing him how much you had you were attempting to impress upon him, looky, you might as well tell us about- it, you might as well give a statement?
“A. I guess you could put it that way, partially it was.
“Q. What was the other purpose?
“A. I wanted him to know what we had, because I have never misrepresented anything, and I told him that I didn’t.
******
“Q. Is there something in the statement (witness’ statement) that said something that you didn’t say? Go ahead.
“A. No, right here I said I stated to him that in my 40 years or so peace officer work and investigation made of murders and ojh.er crimes that I had never misrepresented anything to a defendant or anyone to get a statement, or never promised anything or never mistreated them or used any force.
******
“Q. Okay. But at the end of this conversation have you told us all you can remember? Did the boy make any comment?
“A. Yes, sir, in substance he said that he knew we had him.
“Q. Can you tell me what words he used, Jake? That’s very important.
“A. As near as possible, T knew you had me.’
“Q. What does your statement there say his comment was? It was made just the day before, it would probably be fresher.
“A. ‘At this point he dropped his head and said he knew that he was caught.’
******
“Q. Was it shortly after he said', ‘Well, I guess you have got me,’ or something to that words, that Dan — words to that effect — that Dan Saunders (sheriff) drove up from getting the boots?
“A. He might have already been there. But anyway, when I noticed he was there I believe he ' was arriving as we came back (from observing the boot tracks) to the police car.
******
“Q. Where was Odell (appellant) ? Was Odell standing right there by you ?
“A. Right beside of me. ******
“Q. Was anything said there?
“A. Yes.
“Q. Who said it?
“A. I did.
“Q. To whom?
“A. Dan Saunders (sheriff),
“Q. What did you say?
“A. I said, ‘This is the boy that did it, he is ready to make a statement.’
“Q. Did the boy say anything at that time?
“A. I asked him, I said, ‘Odell, who do you want to make the statement to,’ and he said, ‘Dan Saunders,’ and something to the effect if he could go to the courthouse.
“Q. But now, when you said, ‘This is the boy that did it, he wants to make a statement,’ at that time and following that statement did the boy say anything?
“A. I don’t think he said a word except that he wanted to make it to Dan.
“Q. In response to your question as to who?
“A. That’s right, I just asked him, I said, ‘Odell, who do you want to make the statement to,’ and he said, ‘To Dan,’ and something about if he could let — I believe if he could go north with him, to not go by his Dad’s house.
“Q. That was his statement, ‘I’ll go with Dan but I want to go a certain direction’?
“A. That’s materially it.
“Q. Before he ever got to the car?
“A. We was all standing right there.
“Q. I see. Go ahead.
“A. That’s the last I saw of Odell then.”

Sheriff Saunders arrived at the scene between 5 and 6 P.M., June 12, which was after the car tracks had been compared and after the boot tracks had been found. When Sheriff Saunders and Officer Smith returned from M. J.’s house with the boots, the sheriff took the appellant into custody. Sheriff Saunders in the absence of the jury testified on cross-examination as follows:

“A. When he got in the car I didn’t say anything to him. I was fixing to ask him a question and.— but he told me before I had time to ask him a question if I would take him to the courthouse he would tell me all about it.
“Q. I see. And that was the first words he said to you ?
“A. Yes, sir.
“Q. Is that the only words he said before he got to the courthouse ?
“A. No, sir.
“Q. Did you say anything to him on the way to the courthouse at all?
“A. He asked me if I- would not drive by his father’s house on the way to the courthouse.
“Q. Did he evidence any reason for that,- or just make the statement ?
“A. He just made the statement. And I told him I would not, and I didn’t.
“Q. Anything else he said to you?
“A. Yes, sir.
“Q. Give me that.
“A. On the way to the courthouse he told me that he had one request.
“Q. Uh-huh.
“A. That he did not want to see any of his folks. And the way I remember it he said, T mean any of them.’ And I told him that would be granted.”

Sheriff Saunders further testified that the appellant was not hand-euffed, appeared to be normal, and spoke in a quiet voice as they arrived at the courthouse about 6 P.M. The justice of the peace was not available when they arrived at the courthouse. After warning by. the sheriff in compliance with the provisions of the statute, the appellant made to him a written statement dated June 12, as above shown in the summary of the evidence. After the appellant had' read the statement, the sheriff read it to him in the presence of- three witnesses and then asked him if it was right and if he wanted to sign it, and the appellant said it was right and signed it. The statement was then signed by three witnesses. The appellant had $46.45 and a $10 money order receipt in his possession. At this time the appellant was taken before a justice of the peace. About 7:30 P.M., on his return from the Justice Court a physical examination of the appellant revealed four scratches on the inside of the left wrist and an abrasion of the top of the right wrist.

On June 24, the appellant made another written statement to the sheriff, which is in part set out above, and the testimony reveals that before it was made the sheriff warned him in compliance with the provisions of the statute. The sheriff testified that he never told the appellant of the nature of the evidence they had against him, or that it would be better for him to make a statement, or threatened him in any way before the second statement was made. In making the second written statement the sheriff said, “I would put down as near as possible what he told me.”

The appellant was not advised that he could have and consult counsel before making the first written statement. Sheriff Saunders testified as follows:

“Q. In between times of the first written statement and the second had you told him he had a right to counsel ?
“A. Yes, sir.”

The appellant was affirmatively warned before the making of each written statement that he did “not have to make any statement at all, and that any statement made'” could “be used in evidence against” him. The appellant never at any time requested the right to obtain or that he be provided counsel before the making of any oral or written statement, and never asked to use the telephone or that any person be notified.

The appellant relies on Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, as authority for a reversal. He contends that the written statements were not admissible in evidence because he was not advised that he was entitled to be represented by counsel before making any statements, and that he had the absolute right to remain silent.

After Escobedo was arrested for murder, his attorney obtained his release by writ of habeas corpus. Some days later he was re-arrested for the same offense. When re-taken into custody he was interrogated without being allowed to see his attorney, despite repeated requests to do so by both Escobedo and his retained attorney, who was present in the building while the interrogation was in progress.

The fact that the appellant made no request to consult with an attorney and no attorney sought to confer with him, and the further fact that he was warned, as the statute requires, that he did not have to make any statement at all, distinguish this case from Escobedo and make it evident that it does not control the result here. The contentions of the appellant are overruled. Marion v. State, Tex.Cr.App., 387 S.W.2d 56; Hinkley v. State, Tex.Cr.App., 389 S.W.2d 667; Corry v. State, Tex.Civ.App., 390 S.W.2d 763, 765.

The judgment is affirmed.

Opinion approved by the Court.


author: GREEN, Chief Justice.

text:
    HARTFORD FIRE INSURANCE COMPANY, Appellant, v. Robert G. CHRISTIANSON et ux., Appellees.
    No. 108.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 9, 1965.
    Rehearing Denied Oct. 7, 1965.

      Thompson, Coe, Cousins & Irons, R. B. Cousins, Dallas, R. W. Cowart, Bay City, for appellant.
    Eli Mayfield, Palacios, Moise Simon, Bay City, Austin Y. Bryan, Jr., Houston, for appellees.
   GREEN, Chief Justice.

This is a case arising out of Hurricane Carla. Appellees sued upon an insurance policy generally called a Comprehensive Dwelling Policy, alleging that the dwelling owned and occupied by them as their home, situated near Palacios, Matagorda County, Texas, was totally obliterated as a result of the hurricane and accompanying tornadoes, as were also the household goods contained therein.

As affects this case, the policy in question insured both dwelling and contents against the perils of windstorm and hurricane, but expressly excluded and did not insure against loss caused by tidal wave, high water or overflow, whether driven by wind or not, nor by rain, whether driven by wind or not, unless the wind shall first make an opening in the walls or roof of the described building, and insurer shall then be liable only for loss to the interior of the building, or the insured property therein, caused immediately by rain entering the building through such openings.

Appellant, as defendant below, plead such exclusionary provisions of the policy.

The jury found in answer to special issues numbered as stated (1) that appellees’ dwelling house was damaged and destroyed as a direct result of Hurrieane Carla; (2) that the dwelling house sustained damage or destruction as a direct result of tornado winds occurring in the area; (3) that the actual and necessary cost of repairing and replacing the house would be $20,303.00 (4) that the actual cash value of the house before Carla was $20,303.00, and (5) after Carla was none; (6) that appellees’ personal property, household goods, and contents contained in the dwelling house were damaged and destroyed as a direct result of Carla; (7) that such personal property, etc. sustained loss and damage as a direct result of tornado winds; (8) that the actual and necessary cost of repairing and replacing such damaged and destroyed personal property was $6,863.00, (13) that no part of any damage to the dwelling house was directly caused by tidal wave, high water, or overflow, whether driven by wind or not; (14) that no part of any damage to the house was directly caused by a combination of the winds of the hurricane and tidal wave, high water, or overflow whether driven by wind or not, or 'by rain entering the building through openings not made by the wind; and (IS) and (16), the same as (13) and (14) applicable to the household goods of appellees. Other findings were also made, some of which will be discussed under appropriate points of error.

On the basis of the evidence and the verdict, judgment was entered for appellees against appellant, from which appellant has appealed to this court.

Admittedly, the dwelling house and its contents except the concrete foundations were totally destroyed at some time during the passage of Hurricane Carla through this area September 9-12, 196L We show herewith Plaintiff Exhibit 6, a photograph of the house taken Saturday, September 9, 1961, as appellees were preparing to leave ahead of the oncoming hurricane, and Plaintiff Exhibit 16, a photograph of the site of the same house taken by Mr. Christian-son Thursday, September 14, 1961, on his return, to demonstrate the complete destruction.

PLAINTIFF’S EXHIBIT NO. 6

PLAINTIFFS EXHIBIT NO. 16

The house in question was located at the head and on the east side of Turtle Bay, a long, narrow, shallow inlet which at its mouth is about a mile in width, and opens into Tres Palacios Bay, a much larger body of water. In front of appellees’ home, Turtle Bay is less than one-half mile wide, and normally the water is about one foot deep, and on the United States Department of Interior map in evidence as P.Ex. 24-25, is styled a bayou. The house was located about two miles west of the town of Palacios, the municipal airport and old Camp Hulen being in between, and about 2 miles inland and north of the house which was the subject of litigation in McDonald v. New York Central Mutual Fire Ins. Co., Tex.Sup.Ct., 380 S.W.2d 545. Much of the same evidence as was discussed in that opinion concerning the wind and water and wave action in the general area caused by the hurricane September 9-11, 1961, was presented in the present case, including testimony of the witness Jensen. Without repeating the testimony, we refer to McDonald, supra, pages 546-547, for a clear description of the manner in which the elements of the hurricane reached the Pala-cios vicinity and of the weather phenonema present September 10 and 11,1961, as shown by the testimony in the trial of this case.

Although many citizens of Palacios left before the eye of the hurricane passed through the area, some remained and rode out the storm. A number of these testified to the ferocity of the winds, variously estimated at from 125 to 175 miles per hour, and to the damage to buildings done by such winds as well as to the absence of water in Palacios and the land area surrounding prior to the change of the direction of the wind from northeast to south and southwest about 4:30 to 5:00 p. m. September 11th. At least three witnesses testified to seeing tornadoes approaching the neighborhood of appellees’ home Monday afternoon from the southwest and west. Witness Lowry testified that between 4:15 and 4:45 p.m. Monday, while in his car on Highway 35 less than half a mile from appellees’ house, he saw two large tornadoes, mushrooms at the top, come inland from the west, their tails bouncing along the ground and whipping around, and watched while one hit and stripped out the Alcorn house (seen in ap-pellees’ exhibit 16, supra) less than a hundred yards from appellees’ house, and also struck an outhouse on appellees’ property. He also saw it strike and tear off parts of a corrugated iron hangar at the municipal airport. At this time, according to the witness, there was no water on the ground at appel-lees’ place. Pieces of buildings were flying through the air, and caution caused him to leave to return to Palacios before damage was caused to the Christianson dwelling house. No one testified to seeing appellees’ house thereafter. The evidence does establish that at some time during the hurricane, and after Lowry had left the scene, water did flood the area of appellees’ property to the extent of six feet above the ground level. Whether appellees’ house was still standing, or had been destroyed before such water arrived, became a fact issue under the direct and circumstantial evidence, and expert testimony.

Motion picture scenes taken in Palacios during the hurricane on Monday, as well as a large number of pictures of severe damage done to property well above the top water line, were in evidence, many of which tended to support appellees’ theory of damage caused by winds rather than rising water or wave action. Each party relied strongly on expert testimony. Appellees produced Dr. Randolph Blumberg, an oceanographer and meteorologist, with a Ph.D. from Texas A & M in such studies, who was a consulting engineer primarily in oceanography and research engineering, and who qualified as an expert in the study of hurricanes and tornadoes and their effect on structures, and in determining the cause of damage to buildings. He testified at great length on hurricanes and tornadoes generally and Carla specifically. It was in testimony that the conditions at the site of appellees’ dwelling were the same at the time of the trial as immediately following Carla, and that no material changes had been made. Dr. Blum-berg, after making a detailed examination of such site, after studying all of the photographs in evidence, watching the motion pictures taken during the hurricane, considering the testimony of the wind and water actions, and the evidence of the appearance of tornadoes in the vicinity of ap-pellees’ property late Monday evening, and studying and interpreting a radar tracking film taken by the government weather bureau in Galveston during the occurrence of Carla shown at the trial superimposed over an official government tracking chart, and considering other matters in evidence, including destruction and damage to other nearby buildings, stated definitely his conclusion that the destruction of appellees’ property was not due to wave or rising water, but that it was due to an explosion from within caused by the tremendous suction power of the terrific whirling winds of a tornado produced by the hurricane. According to his testimony, it was natural for tornadoes able to lift great weights and carry them long distances and able to totally destroy large buildings to be spawned by a hurricane, and in his opinion, such was the cá^e with Hurricane Carla. Much other evidence, not necessary to mention in detail, was given by Dr. Blumberg concerning his study of and experience with hurricanes and tornadoes, and his ability to determine from the evidence before him the cause of damage.

Appellant placed two witnesses on the stand who qualified as experts in oceanography, meteorology, construction engineers, and in drawing conclusions of cause of damage to structures. These witnesses, on the basis of their review of all the information available, expressed opinions contrary to those of Dr. Blumberg concerning the cause of damage to appellees’ property, placing the responsibility on high water and wave action. The testimony of the experts, together with the factual and circumstantial evidence, raised issues of fact to be determined by the jury as to the cause of the destruction of appellees’ property.

Appellant’s Points Two, Seven and Eight state that the court erred in submitting Special Issue No. 2, for the reason that same was a comment on the weight of the evidence, and that there was no evidence and insufficient evidence to sustain an affirmative answer thereto, and that the jury’s answer was against the greater weight and preponderance of the evidence. Points Nine and Ten make the same complaint, except as to comment on the weight of the evidence, to Issue No. 7. Issue No. Two with proper placement of the burden of proof on appel-lees inquired whether the dwelling house sustained damage or destruction as a direct result of tornado winds. Issue No. Seven asked whether the household goods, etc. within the building sustained loss and damage as a direct result of tornado winds. Both issues were answered in the affirmative. Appellant in his brief nowhere points out or indicates wherein issue No. Two was a comment on the weight of the evidence (Point Two), nor has it briefed this point by way of statement or otherwise. Hence, we consider such point as being waived. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197; Weatherred v. Kiker, Tex.Civ.App., 357 S.W.2d 182, writ ref. n.r.e.

We have heretofore summarized much, but not all of the testimony, though all testimony has been considered in passing on appellant’s points. Three witnesses testified to the presence of large tornadoes, the products of the hurricanes, in the area. One witness testified to watching a tornado tear through a house next door to appellees, and strike an outhouse of appellees. Many other facts as to damage to other buildings in the vicinity above the water line and of other pertinent facts were placed in evidence, which formed part of the basis for Dr. Blumberg’s expert opinions. Having thoroughly studied the rather lengthy statement of facts of 1201 pages, and the numerous exhibits, we hold that the jury’s answers to Special Issues No. Two and No. Seven were supported by evidence, by sufficient evidence, and were not against the greater weight and preponderance of the evidence. Appellant’s Points Nos. 2, 7, 8, 9, and 10 are overruled.

Appellant’s 47th, 48th, 49th, 50th, 51st, 52nd, 53rd, and 54th points are directed at the jury’s answers to Special Issues Nos. 13, 14, 15, and 16, claiming no evidence, insufficient evidence, and contrary to the greater weight and preponderance of the evidence. These are the only objections to these issues urged by appellant in this appeal, and he raised no objections to the wording of such issues. These special issues concern the exclusionary provisions of the policy as to hurricane damage plead by appellant, and while properly placing the burden of proof on appellee, call on the jury to find (13) whether any part of the damage to the dwelling was not directly caused by tidal wave, high water or overflow, whether driven by wind or not; (14) the same inquiry as to a combination of the winds of Hurricane Carla and tidal wave, etc.; (15) and (16) the same as (13) and (14) about damage to the household goods in the dwelling. The jury’s answers were to the effect that no part of such damage was caused by tidal wave, high water, or overflow, whether caused by wind or not.

We have already summarized, to a limited extent, the testimony bearing on these issues. While the witness Jensen testified to high water and severe wave action late Monday afternoon in the immediate area where he spent the evening much nearer the mouth of Turtle Bay, where it adjoins the much larger Palacios Bay, he did not testify to what was happening at the head of Turtle Bay, or Bayou. The weight to be given his testimony was for the jury, especially in view of the testimony of other witnesses who testified of no high wave action that far inland and in view of the circumstances appearing on the ground, and of the expert evidence of Dr. Blumberg. Such findings of the jury were based on evidence, on sufficient evidence, and were not against the greater weight and preponderance of the evidence, and these points of error are overruled.

Special Issues Nos. 9, 10, 11, and 12 concerned the exclusionary provision that insurer would not be liable for damage caused by rain, whether driven by wind or not, unless the wind shall first make openings in the walls or roof, and insurer shall then be liable only for loss to the interior of the building, or the insured property contained therein, caused immediately by rain entering the building through such openings. Appellant’s points of error II to 32 inclusive allege errcr in the submission, and manner of submission of such issues.

We agree that there is nothing in the evidence to call for the submission of these issues. This was a case of total, complete destruction and loss of the dwelling house and its contents. Appellant does not claim on this appeal that any part of appellees’ damage was caused by the “rain” exclusion. It does not appear that the judgment of the court is in any way dependent on the answers of the jury to Issues 9, 10, 11, or 12. There was no evidence that rain entering the building while it was still intact, or standing, caused any damage.

We hold that any error that may have been committed by the trial court in the submission of issues 9, 10, 11, and 12, becomes immaterial, and is not reversible error. Rule 434, Texas Rules of Civil Procedure; Anderson v. Clifton, Tex.Civ.App., 362 S.W.2d 957, writ ref. n.r.e.

Appellant’s Points 1, 1-A, and 1-B, are to the effect that the court erred in submitting Special Issue No. 1 for the reason that same was a general charge, a comment on the weight of the evidence, and that such submission changed, altered and varied the terms of a written contract. Points 3, 4, and 4-A make the same charge as to Special Issue No. 6.

As heretofore stated, Issue No-. 1 asked the jury whether the dwelling was damaged and destroyed as a direct result of Hurricane Carla, and No. 6 asked the same with reference to the household goods and contents in the dwelling.

Neither of these issues inquired concerning a matter disputed in the evidence, since the record shows without controversy, and appellant states in its brief, that the hurricane did the damage and caused the destruction of appellees’ property. The issues did not inquire whether the damage was caused by the winds of the hurricane; hence they were not ultimate issues, and were not properly submitted.

In view of the pleading by appellant of the exclusionary provisions of the policy, the burden- was on appellee to prove by a preponderance of the evidence not only that his loss was directly caused by the hurricane, but that it was not caused by any of the excluded perils named in the policy, such as high water, wave action, flood, or the other perils not insured against; also, if caused by a combination of wind and any of such excluded' perils, the percentage of loss caused by the excluded perils. McDonald v. New York Central Mutual Fire Ins. Co., Tex.Sup.Ct., 380 S.W.2d 545; Hardware Dealers Mutual Fire Insurance Co. v. Berglund, Tex.Sup.Ct., 393 S.W.2d 309; Paulson v. Fire Insurance Exchange, Tex. Sup.Ct., 393 S.W.2d 316. As stated by Justice Norvell in this last named case:

“In Hardware Mutual Dealers Insurance Company v. Berglund, * * * this day decided, we held that although it could be said that the hurricane caused the loss, yet, nevertheless the plaintiffs could not recover unless they were able to establish that the loss did not come within the exclusionary clause relating to ‘tidal wave, high water, or overflow, whether driven by wind or not.’ ”

While we agree that Special Issues No. 1 and No. 6 were improperly submitted to the jury, we find that subsequent jury findings to other issues, herein discussed, renders any error harmless in so far as the rendition of the judgment is concerned.

Appellant by its 5th and 6th points raised the question of no evidence, insufficient evidence, and against the greater weight and preponderance of the evidence, as to the jury’s answer to Special Issue No. 4, which was that the actual cash value of the dwelling house immediately prior to Carla was $20,303.00. There was no point raised to the next finding, that the value after Carla was none, nor was any other error assigned as to issue 4. The house was built new in July, 1959, at a cost of $23,000. It was shown to have been in excellent condition immediately prior to Hurricane Carla. The original plans and specifications were introduced in evidence. Three experienced building contractors of the area familiar with construction costs in that area, testified that the reasonable cost of replacing the house in its condition prior to Carla, as per the original plans and specifications, would be from $19,860.00 to $20,-665.63, providing use could be made of the concrete foundation remaining. These facts, while not the exclusive way to prove cash value, are admissible as proof of value. Crisp v. Security National Insurance Co., Tex.Sup.Ct., 369 S.W.2d 326. Though this case involves damage to personal property, it seems to confirm the principle that original cost and replacement costs are to be considered as evidence of cash value in an insurance case, in the following language:

“The courts have not abandoned the consideration of either market value or reproduction or replacement values in arriving at actual value to the insured, but evidence of those values may be used as a guide in making that determination rather than a shackle which compels strict adherence thereto. The trier of facts may consider original cost and cost of replacement, the opinions upon value given by qualified witnesses, the gainful uses to which the property has been put as well as any other facts reasonably tending to shed light upon the subject.”

See, also, Millers Mutual Fire Ins. Co. of Texas v. Eggleston, Tex.Civ.App., 357 S.W.2d 766. The finding of the jury to the 4th special issue was supported by evidence, by sufficient evidence, and was not contrary to the greater weight and preponderance of the evidence. Points 5 and 6 are overruled.

Appellant’s points 33^41 inclusive deal with the recovery by appellee of the sum of $1800.00 under the provisions of the policy concerning additional living expenses, as follows:

Coverage D: “If loss under Coverage A, B or C renders the described dwelling or appurtenant private structures untenantable, this Company agrees to pay the necessary and reasonable increase in expense in conducting the Insured’s household (but not of any office) caused by such untenantability. * * * Loss under Coverage D shall be computed commencing with the date of loss and extending for, but not exceeding, the time required with due diligence and dispatch to repair or replace the property damaged or destroyed. * % ft

The jury found, in answer to special issues numbered as follows, that (12A) plaintiffs’ dwelling house was rendered uninhabitable on about September 9 to 12, 1961, as a direct result of Hurricane Carla; (12B) it was rendered uninhabitable as a direct result of Tornadoes accompanying Hurricane Carla on or about September 9 to 12, 1961; (12C) the reasonable and necessary increase in expenses to plaintiffs in conducting their household within any reasonable time after Hurricane Carla was $1800; (12D) plaintiff’s dwelling house could have been completely restored with material of like kind and quality by the exercise of due diligence and dispatch in six months. Appellant’s points are based on no evidence, insufficient evidence, and that the answers are against the greater weight and preponderance of the evidence, and additionally, ás to issue 12C (point 39), that the issue was an attempt to and did vary, alter or change the terms of a written contract by adding language and .conditions not found in such contract.

Both parties agree that this provision is comparatively new in insurance policies, and that they have found no Texas cases construing it, and no authorities are cited to us.

In the event the dwelling house was rendered untenantable as a result of an occurrence whieh would give rise to liability for the dwelling, appellant under Coverage D would be liable in an amount equal to the reasonable and necessary increase in expenses in conducting the insured’s household caused by such untenantability for the period commencing with the date of loss, and extending for, but not exceeding, time required with due diligence and dispatch to repair or replace the property damaged or destroyed. This was not the period inquired about in Special Issue 12-C, which substitutes therefor the_ period “within any reasonable time after Hurricane Carla”, thus leaving it to the jury to speculate on what would be a reasonable time, rather than limiting such period to the terms of the contract. It is true that in answer to Special Issue 12-D the jury found that six months would have been the time in which appellees’ dwelling could have been completely restored with material of like kind and quality by the exereise of due diligence and dispatch. However, the jury’s answer of $1,800.00 to 12-C is in no way made dependent on, or limited by, 12-D. Hence, Special Issue 12-C is subject to appellant’s objection that it varied and altered the terms of the contract by adding language and conditions not found anywhere in the contract, and appellants’ 39th point is sustained.

Since there is no proper jury verdict authorizing the recovery of the sum of $1800.00 included in the judgment, the judgment must be reformed, and such sum of $1800.00 and interest be deducted therefrom.

Attached to the policy when it was purchased by appellees and delivered by appellant’s agent were several endorsements, including one listed as HO-A1, and one listed as CDP-11. Appellant plead and sought to prove that endorsement HO-A1 was attached to the policy by mutual mistake of the parties, and was unauthorized by law, and that the language therein is void. The trial court, at the conclusion of the evidence, held against appellant, and ruled as a matter of law that HO-A1 and CDP-11 both formed valid parts of the contract. Appellant requested three special issues on this matter. Requested Issue No. E inquired whether the HO-A1 endorsement was attached to the policy as the result of a mutual mistake. No. F asked the jury to find whether another endorsement, HC-1, was delivered to plaintiffs to replace HO-A1. Requested Issue No. G dependent on an affirmative answer to the preceding issue, asked whether plaintiffs accepted HC-1 endorsement. The trial court refused to submit such issues in his charge. Points 44, 45, and 46 complain of error of the trial court in not submitting such issues.

Although the insurance agent who sold the policy testified that he made a mistake in including HO-A1 to the policy, there is no evidence that such mistake was a mutual mistake of the parties. There is no evidence that the premium charged did not include the protection afforded by HO-Al. Neither was there sufficient evidence that endorsement HC-1 was delivered to appellees to replace HO-A1 to require the submission of the other two issues requested.

However, in our opinion, this entire matter is immaterial to any issue on this appeal. It was under a provision of HO-A1 that the trial court submitted the issues on increased living expenses, Nos. 12A, 12B, 12C, and 12D. We have held that, for reasons heretofore stated, the trial court erred in permitting recovery in the judgment for such expenses and have deducted them from the amount of recovery. As to all other sums sued for, endorsement CD P-11, admittedly a part of the contract, provides coverage to the same extent against the perils of windstorm and hurricane.

Appellant says that the water exclusion provision is different in the two endorsements. In HO-A1, the exclusion provides that insurer would not be responsible for loss caused by “tidal wave, high water or overflow, whether driven by wind or not.” In endorsement CD P-11, the policy says that it does not insure against loss by “surface waters, flood waters, waves, tide or tidal waves, high water, or overflow of streams or bodies of water, all whether driven by wind or not.”

Appellant does not assign as error any objection to the form or substance of the court’s issues Nos. 13, 14, IS, or 16, discussed above, being the issues on the water exclusionary provisions of the policy. His only assigned error as to such issues involves no evidence and insufficient evidence points. Neither does he raise or brief any point that the court refused any requested issue submitted by him concerning the excluded perils. Appellant has waived any objection to the wording of these issues.

We find no error in the trial court’s ruling on the subject matter of these points of error Nos. 44, 45, and 46, which could have improperly affected the judgment rendered, and same are overruled. Rule 434, T.R.C.P.

Appellant’s Point 55 states that the court erred in overruling and in not sustaining objections made to the experimental evidence made by appellees’ witness (Dr. Blumberg) in superimposing radar film picures on a map, when the same was demonstrated not to be of sufficient accuracy.

Dr. Blumberg testified that he had been involved in radar tracking of storms and hurricanes since 1949, and qualified as an expert in interpreting and reading radar film. During his testimony, an official government tracking chart on Hurricane Carla, used'by-the Galveston Weather Bureau, was identified and introduced. The chart had each degree of latitude and longitude divided into ten concentric circles at intervals of 20 nautical miles, and gave the scale of the map. Also, a radar film strip showing pictures of a radar screen taken during Hurricane Carla at the Weather Bureau Office in Galveston, which tracked the route of the hurricane, was admitted in evidence. It was made clear that the grid circles and scale of the radar film were on the same 250 mile basis as the tracking chart.

Over appellant’s objection that appellees were trying to make an experiment in the courtroom without creating the proper scientific standard, which would be highly prejudicial, Dr. Blumberg was permitted to set the chart up on a screen, and superimpose the radar tracking picture on the screen on top of the chart, and to track and interpret the film respecting the characteristics of the hurricane, and tornadoes breaking out of it.

From time to time during the experiment, certain inaccuracies would appear as the result of the projecting machine getting out of focus, or shifting or “jiggling” of the machine or the chart, and at such times appellant’s counsel would object to such inaccuracies as showing distorted and erroneous pictures. The record shows that on such occasions, the witness was careful to explain any possible changes, deviations or shifting or comparison of ranges, and to adjust and correct it and explain same to the jury.

Experimental evidence, where material and relevant, is admissible in evidence when conducted by one shown to be qualified, and where there is a substantial similarity between conditions existing at the time of the occurrence which gives rise to litigation and those in existence at the time the experiment is conducted for demonstration purposes. When the dissimilarity between the occurrence, conditions, and the circumstances of the experiment is minor, or is made abundantly clear by explanation, its admissibility rests within the discretion of the trial court. Fort Worth & Denver Railway Co. v. Williams, Tex.Sup.Ct., 375 S.W.2d 279; Standard Motor Company v. Blood, Tex.Civ.App., 380 S.W.2d 651.

No reversible error was committed by the trial court in permitting the evidence complained of to go to the jury, and appellant’s point 55 is overruled.

By its point No. 43, appellant alleges error in the definition of circumstantial evidence in the charge. In this respect the court instructed the jury as follows:

“By direct evidence is meant such evidence as you hear from the witness stand from witnesses who either saw, heard or experienced the conditions and facts they undertake to describe. By circumstantial evidence the court means all other type of conditions and evidence and facts admitted to your hearing from which may be inferred or deducted the existence of the fact involved in the questions submitted to you.”

Appellants’ particular objection to the last sentence above, appears to be that the jury were not instructed that the inference or deduction must be reasonable, and in this connection, appellant requested the court to substitute the following definition:

“You are instructed that any fact before you may be established by circumstantial evidence, direct evidence or both. A fact may be established by direct evidence when proved by witnesses who saw the act done or heard the words spoken, or by documentary evidence. A fact may be established by circumstantial evidence when the fact is fairly and reasonably inferred from other facts proved in the case.”

In Larson v. Ellison, 147 Tex. 465, 217 S.W.2d 420, the above definition suggested by appellant, with the exception that the verb “is” was used in each instance where “may be” is used above was given in the court’s charge. Though the Supreme Court suggested that “may be established” was more appropriate than “is established”, it held that the “looseness of the use of the verbs could not have mislead the jury.” The court quoted with approval from Johnson v. Zurich General Accident & Liability Insurance Co., 146 Tex. 232, 205 S.W.2d 353, as follows:

“In practically all cases some of the evidence is circumstantial. Surely a jury understands that it is its function to make reasonable inferences from proven facts, and we are unwilling to sanction a rule based upon the hypothesis that it does not.”

While we believe that the definition suggested by appellant is the more generally accepted one given by our trial courts, we do not find it to be exclusive, and as stated by the Supreme Court in Larson v. Ellison, supra:

“It is inconceivable that the giving of the questioned charge could in anywise have caused the rendition of an improper judgment. Nor is there anything in the record suggesting that Ellison was prevented by reason of this charge from fully presenting his case to the Court of Civil Appeals. We are unable to agree with the able arguments advanced by his counsel that his substantial rights have been injuriously affected.”

Appellants’ 43rd Point is overruled.

Point of Error No. 42, listed with the other points in the first part of Appellant’s brief, is not thereafter mentioned or briefed. The point is waived. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197; Weatherred v. Kiker, Tex.Civ.App., 357 S.W.2d 182, writ ref., n.r.e.

The policy sued on expressly insured against the perils of windstorm and hurricane. The evidence shows without dispute that appellees’ loss and damage was caused by hurricane, and the jury found, on sufficient evidence, that the property sustained damage or destruction as a direct result of tornadic winds. However, the policy contained specific excluded perils which were not insured against, such as tidal wave, high water or overflow, all whether driven by wind or not; also for any loss caused by rain, with exceptions as stated heretofore in this opinion. There is no contention made, and no evidence, that the “rain exclusion” applied to the facts of the case. The jury found, on sufficient evidence, that no part of the damage or loss was caused by such other specifically named excluded perils. The findings of the jury of the amount of appellees’ loss and damage were supported by the evidence. We have found no reversible error raised by appellant’s points.

It is our holding that appellees have fulfilled the burden placed upon them by the terms of the policy, and have established appellant’s liability for their proper damages. McDonald v. New York Central Mutual Fire Ins. Co., Tex.Sup.Ct., 380 S.W.2d 545; Hardware Dealers Mutual Fire Insurance Co. v. Berglund, Tex.Sup.Ct., 393 S.W.2d 309; Paulson v. Fire Insurance Exchange, Tex.Sup.Ct., 393 S.W.2d 316.

It appears that interest at the rate of six per cent (6%) per annum was allowed on the amount of appellees’ loss from January 8, 1962, the sixtieth day after appellees filed their proof of loss with appellant, to March 18, 1964, the date of the judgment. Since we have eliminated the $1800.00 recovery for additional living expenses, the judgment of the trial court is reformed so that said sum of $1800.00, with interest at the rate of six per cent (6%) per annum from January 8, 1962, to March 18, 1964, be deducted therefrom, and as so reformed, judgment is affirmed.

Costs of appeal are assessed, eighty per cent (80%) against appellant, and twenty per cent (20%) against appellees.

ON MOTION FOR REHEARING

We withdraw the statement made in our original Opinion that the witness Lowry testified that he watched while a tornado “also struck an outhouse on appellees’ property.” In lieu thereof, we quote from the testimony of Lowry, given in connection with his evidence of seeing two tornadoes move inland from the west, and of watching while one took the sides off the building at the airport, and damaged the Alcorn house, as follows:

“Q. Do you know the house west of Alcorn’s ?
A. I believe Mr. Christianson’s.
Q. Was there any water around there ?
A. No, sir.
Q. Was it beginning to peel?
A. No, sir.
Q. Was it beginning to break?
A. His pump house was beginning to break when I left.”

On cross-examination:

“Q. All you saw, then, of the Chris-tianson house of any damage was their pump house?
A. That was blowing apart when I was there.
Q. And then you left?
A. I left.”
% % % jfc
“Q. When you saw the funnels coming down, the only damage to the Chris-tianson home was the pump house?
A. That is all I could see at the time.”

In withdrawing from our opinion the specific statement mentioned above, we find no occasion to alter the views expressed by us. We have carefully considered all of the points set forth in appellant's motion for rehearing, and remain of the opinion that the judgment of the trial court should be reformed and affirmed. The said motion is overruled.


author: MURRAY, Chief Justice.

text:
    Israel VELA et al., Appellants, v. Alexander A. SHARP et al., Appellees.
    No. 14401.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 6, 1965.
    Rehearing Denied Nov. 3, 1965.

      Luther E. Jones, Jr., Corpus Christi, Frank R. Nye, Jr., Emilio Gutierrez, Rio Grande City, for appellants.
    Rankin, Kern & Martinez, McAllen, for appellees.
   MURRAY, Chief Justice.

This is an appeal by Israel Vela and Horacio Lopez, two of the defendants below, from part of a default judgment of the 79th District Court of Starr County, Texas, rendered on October 13, 1964, wherein Alexander A. Sharp and Frances A. Sharp recovered title and possession of the land described in the judgment as “Tract One,” and from the order overruling their amended motion for new trial.

Appellants contend that although they were represented by Luther Jones, Esq., an attorney of Corpus Christi, Nueces County, Texas, a non-resident of Starr County, and although their attorney had complied with the provisions of Rule 246, Texas Rules of Civil Procedure, neither they nor their attorney was notified, and they had no knowledge of the setting of the case on October 13, 1964, and were thus precluded from being present to present their meritorious defense to appellees’ cause of action.

Rule 246, T.R.C.P., provides as follows:

“The clerk shall keep a record in his office of all cases set for trial, and it shall be his duty to inform any nonresident attorney of the date of setting of any case upon request by mail from such attorney, accompanied by a return envelope properly addressed and stamped. Failure of the clerk to furnish such information on proper request shall be sufficient ground for continuance or for a new trial when it appears to the court that such failure has prevented the attorney from preparing or presenting his claim or defense.”

Appellants’ attorney substantially complied with this rule. He wrote one letter, giving the style and number of three cases pending in the District Court of Starr County, and asked the district clerk to notify him of any setting of these three cases. He enclosed three self-addressed and properly stamped envelopes. Upon receipt thereof, the clerk put the letter, together with the three self-addressed and stamped envelopes, in the file of one of the three cases other than the present case, and thereafter neglected to notify anyone of the setting of this case. The rule does not require the non-resident attorney to write a separate letter in each case, nor does it require him to enclose copies of his letter so that one may be put in the file of each case listed in the letter.

Here the non-resident attorney, having complied with the provisions of Rule 246, was entitled to be notified of the setting of this case, and not having been notified, and neither he nor his clients having had any actual knowledge of the setting of this case, they had good cause as a matter of law for not being present at the trial. Rule 246, supra. American Casualty & Life Co. v. Malone, Tex.Civ.App., 168 S.W.2d 286.

Appellants stated in their motion for new trial that they have a meritorious defense to the suit, and set it out in detail. It will be borne in mind that this matter was heard on an amended motion for a new trial, timely filed in the trial court, and is not an equitable bill of review filed after a judgment had become final in the trial court. The rule with reference to the opposing parties’ right to contradict the aver-ments in the motion for a new trial, relating to a meritorious defense by evidence -produced at the hearing on the motion, is well stated in Cragin v. Henderson County Oil Development Co., Tex.Com.App., 280 S.W. 554, reading as follows:

“We think the true rule in such cases is this: An applicant for a new trial who has shown himself free from negligence in the matter of default against him is required to set forth a meritorious defense, one which if established upon another trial will produce a different result. But when he has thus set forth such meritorious defense, supported by such affidavits or other evidence as prima facie to entitle him to a new trial, such new trial should not be denied upon any consideration of counter affidavits or contradictory testimony offered in resistance to such motion.”

Maeding v. Maeding, Tex.Civ.App., 155 S.W.2d 991, McDonald, Texas Civil Practice, Vol. 4, p. 1449, § 18.10; 37 Tex.Law Rev. 208.

Appellants here have shown that they and their counsel are free from negligence, and have averred facts which if substantiated on a new trial will constitute a meritorious defense to the appellees’ cause of action. They were entitled to have the default judgment against them set aside and a new trial granted. Appellees did not establish a record title at the trial, or one by limitation, and the judgment was based solely upon prior possession. Appellants’ amended and verified motion for a new trial stated facts showing that they and not appellees had prior possession of “Tract One” described in the pleadings. Appellants are only seeking to set aside that part of the judgment which affects “Tract One.”

The trial court erred in not granting appellants’ motion for a new trial. Accordingly, the judgment overruling appellants’ motion for a new trial is reversed and judgment here rendered setting aside the default judgment herein, insofar as it relates to “Tract One” and a new trial is ordered as to this tract.

Reversed and remanded.