author: DICE, Commissioner.

text:
    Tom Henry HOGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 38194.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    Rehearing Denied Oct. 13, 1965.
    J. W. Reid (on appeal only), Abilene, Clay Coggins, Roby, for appellant.
    Weldon Kirk, Dist. Atty., Sweetwater, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is cattle theft; the punishment, two years.

The indictment, omitting the formal parts, charged that appellant did unlawfully and fraudulently “take one cattle, the same then and there being the corporeal personal property of and belonging to John Dale Kitchens, from the possession of Lon Rogers, employee of Richard Young, who, as said employee, was holding same for said John Dale Kitchens, without the consent of said John Dale Kitchens, and without the consent of said Richard Young, and without the consent of said Lon Rogers, and with the intent then and there to deprive the owner thereof of the value thereof, and to appropriate it to the use and benefit of him, the said Tom Henry Hogan.”

The state’s evidence shows that in the month of October, 1963, a stray black Bran-gus steer calf belonging to John Dale Kitchens came to the Richard Young place, located some twelve miles east of Roby in Fisher County. The calf was penned and an effort was made to locate the owner. Appellant lived across the road from the Young place and Mr. Young told his employee, Lon Rogers, to ask appellant if he had lost a calf. When contacted by Rogers, appellant said he would come look at the calf. On October 30, appellant came to the Young place and, after looking- at the calf, claimed the animal, saying “he thought it was his.” Rogers helped appellant load the calf in a trailer and appellant left with the animal. Appellant then took the calf to an auction sale at Stamford, where he sold it for $80.03, using the name of Jack Logan, address: Stamford, Texas, as seller. A check in such amount was issued by the Stamford Livestock and Commission Company, payable to Jack Logan. The calf was later located at the Johnny Hines’ place in Stonewall County, where it had been taken by Mr. Hines, who purchased the animal at the auction sale in Stamford. The witness Rogers testified that he would not have turned the calf over to appellant if he had not thought he was the owner and that if appellant had not claimed the calf he would not have thought he was the owner.

It was further shown that in the investigation of the loss of the calf, Inspector Boots O’Neal, of the Texas and Southwestern Cattle Raisers Association, talked to appellant about the calf in the early days of November, 1963. Inspector O’Neal testified, without objection, that appellant was very cooperative and said that he had picked up a calf from the Young place and that they could go to his place, where the calf was in the pasture. The two proceeded to appellant’s place, where appellant showed the inspector where he had unloaded the calf, but the calf could not be found in the pasture. After the calf could not be found, appellant admitted that he had sold it at the auction in Stamford on the day he loaded it at the Young place. When confronted with the fact that there was no record of any sale to him, appellant admitted that he used the assumed name of Logan when he discovered the calf was not his after he arrived at the auction.

John Dale Kitchens, the owner of the calf, testified that he talked to appellant on three occasions about the missing animal. On the first occasion, appellant stated that he had no stray cattle. Later, appellant told the witness he had picked up the calf from the Young place but stated he had not been to the auction sale. Later, appellant admitted to the witness that he, under the name of Logan, had sold the calf. Appellant stated to Kitchens that after he took the calf to the sale and it was going through the ring he noticed it had been castrated, that he got scared and did not know whether it was his calf or not. Kitchens testified that appellant admitted to him that he stole the calf, offered to pay for it, and did give him a check for $82.03 in payment for the calf. The witness further swore that he did not give appellant permission to take the calf.

Richard Young, on whose place the calf strayed and was penned, testified that he did not give appellant consent to take the calf.

Testifying as a witness in his own behalf, appellant admitted taking the calf from the Young place and selling it at the auction but swore that he thought the calf was his. Appellant swore that he did not represent himself as Jack Logan in making the sale and stated that the name, “Logan,” was a mistake and the result of the wrong tag being put on the calf. Appellant denied pointing out to Inspector O’Neal the place where he was supposed to have unloaded the calf in his pasture and also denied telling him that he had sold the calf under an assumed name. He also denied telling Kitchens that he did not realize the calf was not his until it was in the auction ring and he saw it had recently been castrated. Appellant stated that he paid Kitchens for the calf, to settle the matter. In his testimony, appellant at first swore that he took the check which he received for the sale of the calf to a bank at Hamlin, where he endorsed it and applied the proceeds on a mortgage. When confronted with testimony from the vice-president of the bank that no payment was made on the mortgage at that time, appellant changed his testimony and swore that he cashed the check at Pinky’s County Line Store.

The issue of appellant’s guilt was submitted to the jury upon the state’s theory of theft by false pretext.

Appellant insists that the evidence is insufficient to support the conviction because the state did not meet its burden of proof, under the allegations of the indictment, by showing that he took the calf without the consent and permission of all of the three parties named therein, to-wit: Kitchens, Young, and Rogers. It is appellant’s contention that because Rogers consented to his taking the calf, the proof fails to sustain the allegations of the indictment.

We find no merit in this contention, as, under the record presented, appellant stands convicted of theft by false pretext, which is authorized under an ordinary indictment for theft, even though the taking may be with consent of the owner.

In S Branch’s Ann.P.C., page 126, Sec. 2680, it is stated:

“Under an ordinary indictment or information for theft charging that the property was taken without the consent of the owner, a conviction may be had for theft though the taking was with the consent of the owner if the proof shows that such consent was obtained by any false pretext. Maddox v. State, 41 Tex. 205; Quitzow v. State, [Tex.] 1 [Tex.] App [65] 70; Berg v State, 2 [Tex.] App [143] 153; Jones v State, 8 [Tex.] App [648] 649; Hudson v State, 10 [Tex.] App [215] 229; Dow v State, 12 [Tex.] App [343] 345; Morrison v State, 17 [Tex.] App [34,] 37; Atterberry v State, 19 [Tex.] App [401] 407; Taylor v State, 25 [Tex.] App [96] 101, 7 SW 861; Jones v State, [Tex.Cr.App.] 49 SW 387; Lewis v State, 48 [Tex.] Crim [R.] 311, 87 SW 831; Glascow v State, 50 [Tex.] Crim [R.] [639] 639, 100 SW 933; Hawkins v State, 58 [Tex.] Crim [R.] 407, 126 SW [268] 269; Anderson v State, 77 [Tex.] Crim [R.] 31, 177 SW 85; Hedge v State, 89 [Tex.] Crim [R.] 236, 229 SW 862 [14 A.L.R. 889]; Brady v State, 108 [Tex.] Crim [R.] 606, 2 SW 2d 261; Barnett v State, 119 [Tex.] Crim [R.] 594, 43 SW2d 449; Welch v. State, 153 [Tex.] Crim [R.] 416, 219 SW2d 804; Gibbs v State, 158 [Tex.] Crim [R.] 145, 253 SW2d 1002; Wade v. State [161 Tex.Cr.R. 195], 275 SW2d 665 (dissenting opinion).”

Appellant also insists that the testimony introduced by the state did not authorize a charge on theft by false pretext because no false pretext was shown to have been made to the three owners named in the indictment. It is pointed out that as to the alleged owners Kitchens and Young, no representation was made by appellant. It is also insisted that the representation made by appellant to Rogers that he thought the calf was his was not such as to raise an issue of theft by false pretext.

We do not construe the allegations of the indictment as requiring proof of a false representation to Kitchens and Young. Under the terms of the indictment, appellant was charged with taking the calf from “the possession of Lon Rogers, employee of Richard Young, who, as said employee, was holding same for said John Dale Kitchens.” To sustain appellant’s conviction under the indictment, it was not necessary to show that he obtained possession of the calf by making a false pretext to Kitchens and Young but only to Rogers, who was alleged to be holding the same for Kitchens. The actions of appellant in claiming the calf, telling Rogers he thought it was his, and hauling it away were sufficient to raise an issue of theft by false pretext. Verbal assertions or direct representations are not required to show false pretenses or representations, as they may be shown by a party’s conduct and acts. Dixon v. State, Tex.Cr.App., 215 S.W.2d 181. The contention is overruled.

Appellant’s other contentions pertain to the court’s charge and present the question of whether the issue of theft by false pretext was raised by the evidence.

No error is perceived in the charge. The court’s refusal to charge the jury that the consent of Young and Kitchens was not required in the disposal of the animal and that Lon Rogers had the sole authority to dispose of it was not error, as such instruction would have been upon the weight of the evidence.

The judgment is affirmed.

Opinion approved by the court.


source: Caselaw Access Project

author: McDONALD, Presiding Judge. MORRISON, Judge WOODLEY, Judge. McDONALD, Presiding Judge

license: Public Domain

text:
    Elbert HILL, Appellant, v. The STATE of Texas, Appellee.
    Nos. 38163, 38164.
    Court of Criminal Appeals of Texas.
    May 5, 1965.
    Rehearing Denied June 16, 1965.
    Second Rehearing Denied Oct. 13, 1965.

      Pearson Grimes, of Butler, Binion, Rice, Cook & Knapp, Houston (on appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Joe Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The above styled causes present the same questions on appeal. Hence, they are consolidated for review and disposition. One conviction is for felony theft with the punishment assessed at ten years; the other is for burglary with the punishment assessed at two years.

On March 11, 1964, the appellant was indicted for the offense of burglary, and the offense of felony theft with two prior convictions alleged for enhancement. The appellant was also charged by indictment with two other felonies, one for theft and the other for burglary.

On November 9, 1964, Desmond E. Gay, was appointed by the court to represent the appellant in said cases. After such appointment, Gay investigated the cases and advised and counseled with the appellant. The theft and burglary cases (not the two here on appeal), and the enhancement allegations in the indictment for burglary returned March 11 were dismissed upon recommendation of the state. Following the dismissals, the appellant on November 9, 1964, entered a plea of guilty, before the court without a jury, to the burglary and theft indictments returned March 11. After all procedural requirements had been complied with, including the introduction of sufficient evidence to authorize the convictions, the court found the appellant guilty in each case, and assessed his punishment at two years in the burglary case and ten years in the theft case. Sentence was pronounced on November 9, 1964. Notice of appeal was given on November 16, 1964.

For reversal the appellant relies upon the following contentions, as stated in his brief:

“Appellant’s Points of Error concern only the matter of failure of the trial court to furnish appellant with a qualified attorney at law to represent him on November 9, 1964, or, having discovered such error to grant him a new trial.”

It is undisputed that on November 9, 1964, Desmond E. Gay, was appointed by the trial court to represent the indigent appellant in the burglary case and the theft case with prior convictions alleged for enhancement; that Gay had failed to timely pay his annual State Bar dues in 1964, and was removed from the State Bar membership roll on September 1, 1964, due to nonpayment of such fee; and that he was reinstated on November 30, 1964, upon payment of said fee and has continued in good standing.

The record further shows that Desmond E. Gay was admitted to the State Bar of Texas in April, 1954, and has been continuously engaged in the practice of law since that date; that he had annually tried twenty to twenty-five criminal cases upon pleas of not guilty, and that many of them were for similar offenses as those in the instant cases. After investigation and counselling, and upon the state dismissing the enhancement allegations in the instant theft case and also two other felony cases, Gay advised the appellant to plead guilty to the instant cases of theft and burglary.

The written statement of the judges of four criminal district courts in Harris County, including the judge who tried the instant cases, recites as follows:

“This is to certify we have known the attorney Desmond E. Gay for a number of years, and that he has practiced in our Courts as long as each of us has been Judge of our respective Courts. He has regularly appeared and defended clients who have retained him, and he has accepted appointments to represent indigent defendants during all of this time in our Courts. It is our opinion that he is a competent lawyer and well qualified to represent defendants in criminal cases.”

Another judge of another criminal district court in Harris County relates facts in his written statement which show the ability of Gay in the trial of criminal cases before him; and the judge further states that, “ * * * he has appeared regularly in my court (for ten years) and I consider him competent to represent defendants in criminal cases.”

To support his contentions for reversal the appellant relies upon Martinez v. State, 167 Tex.Cr.R. 97, 318 S.W.2d 66 (1958), which was followed in McKinzie v. Ellis, 5th Cir., 1961, 287 F.2d 549.

We shall first address ourselves to the Martinez case, supra. There the court-appointed attorney failed to pay his bar dues in 1946. After proper notice that he was delinquent, he made no response and his name was removed from the State Bar rolls in 1946 for non-payment of dues. This sole contention was brought before this Court on Appellant’s Motion for Rehearing with a certificate attached from the bookkeeper for the State Bar of Texas, dated September 3, 1958, reflecting that appellant’s attorney “has not paid his State Bar dues since June 1, 1946, a delinquent notice was sent on August 1, 1946, from which no reply was received, and he was dropped from the rolls of the State Bar on September 1, 1946, and has not been reinstated to this date.” Since this Court obviously did there consider matters not appearing in the record made in the trial court and those which attack its jurisdiction on an appeal, we think it not amiss to here state that the attorney in Martinez’s case, as shown from the records of the Office of the Clerk of the Supreme Court of Texas, did pay up all of his delinquency from 1946 through 1958 on September 24, 1958. The record reflects that Martinez was indicted November 13, 1957, for an offense alleged to have been committed on October 14, 1957, the Court appointed an attorney for him on November 14, 1957, and his case went to trial on January 20, 1958, and the trial was concluded on January 24, 1958. This Court’s original opinion was handed down on June 18, 1958, affirming the conviction, wherein the penalty of death was assessed for the murder of a 9 month old child. The majority opinion of this Court on Appellant’s Motion for Rehearing was handed down on November 5, 1958, granting the motion for rehearing, setting aside the order of affirmance and reversing and remanding the case. We are not in accord with this Court’s decision in the Martinez case. We do, however, construe the State Bar rules in the same light as this Court there did, and as the 5th Circuit did in McKinzie, supra. That is, the delinquent attorney shall cease to he a member if he doesn’t pay within 30 days after he has had notice of 60 days delinquency. The section immediately preceding this one does say: “[AJ11 persons not members of the State Bar are hereby prohibited from practicing law in this State”. Neither the State Bar rules nor the statutes contain a provision saying anything about such person being deprived of his license as an attorney at law. The rules of the State Bar place the judges of the various trial and appellate courts of this State in a position to refuse a delinquent attorney-member the privilege of practicing law, and these rules do place the lawyer whose name has been stricken from the rolls of the State Bar for non-payment of dues and who has not been reinstated, in the position of not being able to practice in this State, and if he persists in doing so, the lawyer’s continued practice constitutes the unauthorized practice of law.

The status of a delinquent attorney not being a member of the State Bar of Texas does not place him in the position of being “unlicensed to practice law in this State”. He only has to pay his dues (he does not vacate the office of Attorney-at-Law) to resume his status as a “practicing lawyer”. Such attorney does not have to again show his fitness or qualifications to practice law. He does not have to be re-admitted to the practice. His competency as an attorney has not been diminished. He faces no future disbarment proceedings. He automatically resumes his status as an active member of the State Bar of Texas. The payment of his delinquent dues has the same effect for him as a nunc pro tunc judgment. He, in effect, enters a nunc pro tunc judgment for himself. Ex parte Lefors, 171 Tex.Cr.R. 229, 347 S.W.2d 254, at page 255.

It is clear to us that the State Bar Act is retroactive in its application. When the delinquent attorney-member pays his delinquent dues he then is restored to the status that he occupied prior to becoming delinquent. In Stokes v. Sundermeyer, Tex.Civ.App., 170 S.W.2d 583, the attorney, Sundermeyer, was notified that he was delinquent for the year 1941 in payment of his bar dues. He paid such dues on May 14, 1942, for the fiscal year beginning June 1, 1941, and ending May 31, 1942. The Galveston Court of Civil Appeals held that Mr. Sundermeyer was not precluded from recovering compensation for legal services rendered between February 7 and August 15, 1941, on the ground that he was disqualified to practice law during such period because of forfeiture of his bar membership for non-payment of dues. Writ of error was refused, no reversible error, by our Supreme Court of Texas.

Martinez’s attorney had “purged” himself of his delinquency before this Court disposed of his case on rehearing. No contention was made as to his competency. We think that this Court fell into error in not holding said attorney qualified and competent. Just as Mr. Sundermeyer’s acts as an attorney were revitalized by the payment of his delinquency and given validity during the interim period of his suspension from membership, so were the acts of Martinez’s attorney revitalized and given validity.

Martinez, supra, is overruled.

We construe the opinion of the 5th Circuit in McKinzie’s case, supra, as being bottomed on our opinion in Martinez. We entertain no doubt that an indigent defendant in a non-capital case is entitled to be represented by competent court-appointed counsel just as much as ah indigent defendant in a capital case. We here and now disclaim any effort to distinguish the two types of cases as was attempted in Mc-Kinzie’s case. We do, however, feel that our disavowal of this Court’s holding in Martinez’s case will cause the various Federal Courts to take a new appraisal of questions of this kind in light of our opinion herein.

In the cases at bar, the attorney, Desmond E. Gay, tried these cases on November 9, 1964, and he paid his delinquent State Bar dues on November 23, 1964. He was reinstated on November 30, 1964, and has continued in good standing. We have before us the case of an attorney who has “purged” himself of delinquency. His acts during the period when his name was removed from the membership roll of the State Bar of Texas were valid and were revitalized when he paid up his delinquency.

May we illustrate a situation like the one at bar, were the case reversed upon the grounds that appellant urges; then, on a retrial, appellant is represented by an attorney not shown to be delinquent in his State Bar dues, at which time the District Attorney places upon the stand as a witness for the state the attorney who was a delinquent member and attempts to adduce from said attorney the gist of a conversation had with appellant during the time that said attorney was “counsel” in the case; does any member of the bench or bar of this State doubt that an immediate objection would be taken that this conversation was a privileged communication between attorney and client and that the trial court would sustain it? That situation could well arise and such an objection and ruling would be contrary to our holding were we to reverse this case upon appellant’s contention. Under the doctrine of stare decisis (assuming such case were appealed) we would then be compelled to reverse such a case, were we to reverse this one.

The evidence, which was stipulated, is sufficient to sustain the convictions.

Finding no reversible error, the judgments are affirmed.

MORRISON, Judge

(dissenting).

I respectfully dissent to the affirmance of these convictions and to the overruling of Martinez v. State, 167 Tex.Cr.R. 97, 318 S.W.2d 66. It will only require a short research by any member of the bar to pass upon the soundness of such opinion. It is vital to remember that at Martinez’ first trial there were no formal or informal bills of exception and no objection to the Court’s charge. Appellant’s brief on original submission in a death penalty conviction consisted of two pages of generalities. It was only upon rehearing that the writer discovered that this Court had so lightly affirmed a death penalty conviction.

Upon retrial Martinez was represented not only by a legally licensed lawyer, but by one of the most capable in our field, as is demonstrated by the opinion which I prepared for this Court. Martinez v. State, 169 Tex.Cr.R. 229, 333 S.W.2d 370. Every accused and especially those in death penalty cases is entitled to, as we said in Brown v. State, 168 Tex.Cr.R. 67, 323 S.W.2d 954, “at least one tolerably fair trial.” This Martinez did not secure at his first trial and this he did get on his second trial. I retreat not one step from what I said in both cases.

Aside from this, it is quite clear from the reasoning in McKinzie v. Ellis, 5 Cir., 287 F.2d 549, that these convictions should not stand.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

The writer’s views as to Martinez v. State, 167 Tex.Cr.R. 97, 318 S.W.2d 66, are set out in his dissent therein.

If, as has been suggested, the reversal of the conviction in Martinez v. State was due in part at least to the fact that no bills of exception were preserved, or was for any reason other than that counsel appointed to defend was not a member of the State Bar because he had been suspended for failure to pay his dues, the Martinez case is not authority for setting aside these convictions.

This is so because the records do not reflect that Desmond E. Gay, who was appointed to represent appellant, was not qualified to represent defendants in criminal eases and there is nothing in the records before us in these appeals which suggests that Mr. Gay failed in any way to adequately and competently advise appellant and represent him in his trial before the court on his pleas of guilty. The only attack upon his qualifications is bottomed upon his failure to timely pay his bar dues.

If Martinez v. State, 167 Tex.Cr.R. 97, 318 S.W.2d 66, may be construed as requiring the setting aside of a conviction upon a plea of guilty before the court upon a showing that counsel appointed by the court to represent him was delinquent in payment of his bar dues, we remain convinced that it should be overruled.

In addition to the ground for reversal common to both appeals, it is now contended that the conviction for felony theft with punishment assessed at 10 years (before us in Cause No. 38,164) must be reversed because there is no showing in the record that appellant and his attorney were given the statutory time in which to prepare for trial, in violation of appellant’s rights under Art. 494, Vernon’s Ann.C.C.P., and his right to counsel for his defense under the Sixth Amendment to the Constitution of the United States was therefore denied.

In support of this contention advanced for the first time on motion for rehearing, appellant cites Art. 494, V.A.C.C.P. and the cases of Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775; Bennett v. State, Tex.Cr.App., 382 S.W.2d 930; and Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939. The writer dissented in the latter case.

The state correctly points out that the formal bills of exception appearing in the transcript were not filed within the 90 days allowed by statute, and the record is silent as to when the trial judge appointed counsel to represent the defendant in the felony theft case.

It follows that there is no affirmative showing in the record that appellant and his counsel were not allowed 10 days to prepare for trial in the felony theft case and no affirmative showing that such time was not waived in writing. Also there is no affirmative showing that the waiver signed by appellant and his counsel bearing only the number of the burglary case was not intended to apply to both cases tried before the court the same day upon stipulated facts and agreement as to the punishment to be recommended.

Appellant’s motions for rehearing are overruled.

McDONALD, Presiding Judge

(concurring.)

I concur with the results reached by Judge WOODLEY in these two cases. I think the waiver is applicable to both cases where the cases are tried upon stipulated evidence and upon agreement as to the punishment to be recommended, as was here done. If appellant had time to get ready to stipulate and agree and waive in one case, then what else could he get ready for? He waived in both cases very effectively.


author: McDONALD, Presiding Judge.

text:
    Dub LINDSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 38125.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    Rehearing Denied Oct. 13, 1965.

      Allen Harp, Childress, for appellant.
    John Deaver, County Atty., Memphis, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Our prior opinions are withdrawn.

The offense is driving while intoxicated; the punishment, a fine of $100.00 and 3 days in jail.

No statement of facts on the merits accompanies the record.

We do have, however, a statement of facts on the hearing held concerning appellant’s plea of former jeopardy and an exception appears therein to the action of the trial court in overruling the plea of former jeopardy. From this statement of facts we observe that the jury was retired to consider their verdict at 3:45 P.M. and that the jury twice reported to the court that they were unable to reach a verdict, and at 5:27 P.M., upon the motion of the state, the jury was discharged without the consent of the accused and without the consent of his counsel being requested.

While there is some conflict in the evidence as to whether or not appellant’s counsel conceded to the dismissal, it is appellant’s contention that he did not consent to the dismissal.

Appellant relies upon Grigsby v. State, 158 Tex.Cr.R. 484, 257 S.W.2d 110, to support his contention. This Court did hold in Grigsby’s case that the trial court abused his discretion in a driving while intoxicated case when he discharged the jury without the consent of the accused after they had deliberated for only one hour and forty-five minutes. It is significant to observe that Art. 682, Vernon’s Ann.C.C.P., provides :

“After the cause is submitted to the jury, they may be discharged when they can not agree and both parties ■ consent to their discharge; or the court may in its discretion discharge them where they have been kept together for such time as to render it altogether improbable that they can agree.”

It is obvious from the above statute that a jury may either be discharged by agreement of the parties consenting thereto, or upon the Court’s own motion, within his discretion. Conceding that appellant did not consent to the discharge of the jury, we must then look to the record to determine if the trial court abused his discretion in discharging the jury without the consent of appellant.

We said in Green v. State, 167 Tex.Cr. R. 330, 320 S.W.2d 139: “The exercise of discretion is measured by the time the jury have been kept together, considered in the light of the nature of the case and the evidence.”

In passing upon this question in the light of the rule laid down in the Green case, it necessarily behooves this Court to look to the nature of the case, the amount of evidence adduced and considered by the jury in making a determination as to an abuse of discretion. In other words, before we can say that the jury was prematurely discharged by the trial court, we must necessarily know some of the facts to indicate the amount and length of testimony the jury was called upon to consider in their deliberations, we must know the time consumed by the trial and then weigh this time element against the time that the jury deliberated prior to their discharge.

Green, supra, was cited by approval by this Court in Villarreal v. State, 172 Tex.Cr.R. 213, 355 S.W.2d 516, certiorari denied 371 U.S. 867, 83 S.Ct. 127, 9 L.Ed.2d 103. We held in Villarreal that a plea of former jeopardy should not be sustained in a murder case where the punishment assessed was 25 years confinement in the penitentiary, where the jury had been discharged by the court after having deliberated for approximately 12 to 14 hours. In the Green case the jury deliberated between five and seven hours. The presentation of evidence had consumed approximately one day of the trial. We held that the trial court did not abuse his discretion in concluding that the jury could not agree upon a verdict and in discharging them at the former trial.

In Villarreal, supra, we said: “Since there is no statement of facts on the merits in this case, this Court cannot consider the nature of the evidence in determining whether the trial court used discretion.” We do not have before us a statement of facts on the merits in the case at bar. While Grigsby, supra, relied upon by appellant, does not reflect it from the opinion, the record in that case reflects that a full statement of facts on the merits was brought forward to this Court and that testimony was adduced from a total of 13 witnesses. Davis v. State, 144 Tex.Cr.R. 474, 164 S.W.2d 686, also cited by appellant, also contains a statement of facts on the merits.

The state’s motion for rehearing is granted, the order of reversal is set aside, and the judgment of the trial court is affirmed.


text:
    Ex parte William E. L. THOMAS.
    No. 38199.
    Court of Criminal Appeals of Texas.
    May 26, 1965.
    Rehearing Denied Oct. 13, 1965.

      Tom Upchurch, Jr., Amarillo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

This is an appeal from an order of the 47th District Court of Potter County remanding appellant to the custody of the Sheriff of said County for delivery to an agent for the State of Tennessee.

The executive warrant issued by the Governor of Texas directing the arrest and delivery of appellant to the State of Tennessee was introduced.

Appellant testified that he was not in the State of Tennessee at the time that the offense was alleged to have been committed.

When the proper executive warrant is introduced, it is incumbent upon appellant to show that he is not the person charged in the demanding state. The testimony of the accused standing alone is not sufficient to show that he was not in the demanding state at the time the crime was committed. Ex Parte Ackton, 164 Tex.Cr.R. 548, 301 S.W.2d 86.

Peggy Green, a witness called in behalf of respondent, testified that she was in Memphis, Tennessee, at the time the offense of forgery was alleged to have been committed and that the appellant gave her a $98.30 check and identified himself as “Ford”.

The Governor’s warrant is sufficient. No issue was raised as to the identity of the person named in the warrant.

The judgment of the trial court is affirmed.


text:
    Ex parte William E. L. THOMAS.
    No. 38200.
    Court of Criminal Appeals of Texas.
    May 26, 1965.
    Rehearing Denied Oct. 13, 1965.

      • Tom Upchurch, Jr., Amarillo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

This is an appeal from an order of the 47th District Court of Potter County remanding appellant to the custody of the Sheriff of said County for delivery to an agent for the State of Louisiana.

The Governor’s warrant and the supporting papers were introduced that showed appellant to be charged by affidavit with the offense of theft of $98.10. The Governor’s warrant made a prima facie case. Ex Parte Kaufman, 168 Tex.Cr.R. 55, 323 S.W.2d 48, 49.

• The appellant testified that he was not in the State of Louisiana at the time the offense was alleged to have been committed. We held in Ex Parte Ackton, 164 Tex.Cr.R. 548, 301 S.W.2d 86, that the testimony of the accused standing alone is not sufficient to require a finding that he was not in the demanding state on the date alleged.

Appellant contends that the supporting papers show that he had committed the crime of forgery and that the Governor’s warrant and the requisition show that he was charged with theft. Theft may be committed in different ways in Texas, even though the facts might show another crime, such as swindling by worthless check or forgery. Windham v. State, 169 Tex.Cr.R. 451, 335 S.W.2d 219. In the absence of a showing to the contrary it is presumed that the law of Louisiana is similar to the law of this state. It is not the province of this Court to pass upon the guilt or innocence of an appellant in an extradition proceeding.

The Governor’s warrant is sufficient. Appellant did not raise an issue as to his identity.

The judgment of the trial court is affirmed.


author: MORRISON, Judge.

text:
    Bobby J. MANNING, Appellant, v. The STATE of Texas, Appellee.
    No. 37131.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    Rehearing Denied and Opinion Amended Jan. 6, 1965.
    Second Rehearing Denied Oct. 13, 1965.

      George S. McCarthy, Tom Upchurch, Jr., Amarillo, for appellant.
    Dee D. Miller, Dist. Atty., Patrick H. Mulloy, Jr., Asst. Dist. Atty., Amarillo, Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Amended Opinion.

The offense is theft from the person; the punishment, three years.

This is a companion case to Dean v. State, Tex.Cr.App., 379 S.W.2d 916, and the facts are substantially the same and therefore will not be set forth here other than to state that in the case at bar the witness Maxine Hubbard testified that following the incident in question appellant told her that he and his wife had taken $400.00 from Williams. June Clark also testified that appellant told her in the presence of others that his wife had taken $400.00 from Williams and later suggested that she leave the state after the incident and prior to the trial. Paul Williams testified that appellant had come to see him after the incident and asked if his brother, Pete, the injured party, would settle for anything. Pete Williams testified that following the loss of his money appellant pretended to assist him in locating one Bob Dickerson, who appellant said might have gotten his money, asked that he not go to the police and finally told him “I think I can get your money, I think I can borrow it from my father in law”, but that the money was not forthcoming. Officer Fields testified that appellant prior to his arrest admitted to him that he had rented rooms 216 and 217 at the Holiday Inn on the night in question.

Appellant contends that the prosecutor alluded to his failure to testify in his argument to the jury. The formal bill of exception as qualified by the court and the informal bill of exception as reflected by the separate statement of facts containing the jury argument show that the following occurred during the course of the prosecutor’s argument:

“With respect to Mr. McCarthy’s argument, I must say that I feel that some of the argument in a sense did not fairly weigh the proposition, of all of the testimony in this case. He spent basically the full amount of his time with reference to Pete Williams and the conflicts that were caused on cross examination — now, that same conflict that arose by the same cross examination by the same cross examiner was in the last case, and I think it is even obvious in this case, and we have human personalities here, too, and taking all that into consideration, all these elements have to come into consideration. You are the ones that are the exclusive judges of the credibility and the believeability of the witnesses. Did you believe Pete Williams — did he get confused here and there — is the mass of the State’s testimony believable, is it contradicted substantially in any fashion. No, it isn’t, it isn’t—
“Mr. McCarthy: Now, we object to his statement that it is not contradicted in any fashion, and we ask for a mistrial.
“The Court: Overruled.
“Mr. McCarthy: Note our exception.”

It should be noted that the prosecutor used the expression “the mass of the State’s testimony”. In order for such a statement to be construed as a comment upon appellant’s failure to testify, there must not have been anyone other than appellant who could have refuted any of the State’s witnesses. Such is not the case here. In French v. State, 162 Tex.Cr.R. 48, 284 S.W.2d 359, we said: “For argument to violate Article 710, V.A.C.C.P., it must be such as cannot reasonably be applied to the failure of the accused to produce testimony other than his own.” Officer Fields testified that there was another party present when appellant admitted having rented the rooms in question. This is an example of the other evidence available to refute the State’s case other than appellant’s own testimony.

Bill of Exception #4 complains of the failure of the court to grant his oral motion to require the State to elect prior to the presentation of defensive testimony. The court stated at the close of the State’s case that the State had elected to proceed on the count which charged theft and the count which charged conspiracy to steal the same funds. When he charged the jury he submitted only the count which charged theft. In this we perceive no error. 30 Tex.Juris.2d, Sec. 46, p. 618 and cases there cited.

Appellant next complains of the failure of the court to grant him a new trial on the grounds of jury misconduct. Attached to his motion are the affidavits of three jurors in which they recite that the failure of appellant to testify in his own behalf was discussed by them during their deliberations.

At the hearing on the motion appellant stood on these affidavits and did not call the jurors as witnesses. The State, however, called three other jurors, one of them being Mrs. Green who testified: “someone raised the question with reference to the defendant not testifying” and that the foreman told the remainder of the jury that such fact should not be considered and there was no further discussion of the matter. We quote further from her testimony: “Q. Could there have been conversations during the deliberations that you did not hear? A. No.”

Recently in Mandujano v. State, 170 Tex.Cr.R. 166, 339 S.W.2d 528, we held that an immediate instruction by the foreman cured the error. Mrs. Green’s testimony created an issue of fact which the trial court decided adversely to appellant when the court refused to grant the motion for new trial. Jaynes v. State, 164 Tex.Cr.R. 147, 296 S.W.2d 934.

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


author: PER CURIAM.

text:
    Ollie Troy MANSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 38061.
    Court of Criminal Appeals of Texas.
    April 14, 1965.
    Rehearing Denied June 16, 1965.
    Second Rehearing Denied Oct. 13, 1965.
    Mithcell & Gilbert (on rehearing only), Sam French (on rehearing only), Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

The offense is murder with malice; the punishment, ten years.

The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular and nothing is presented for review. The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

Since the rendition of our original opinion herein on April 14, 1965, appellant has tendered a statement of facts approved by the trial judge on May 5, 1965, and filed with the clerk of the trial court on May 19, 1965. The order of the trial judge recites the following:

“I have read the foregoing Statement of Facts and it is a correct statement of the evidence adduced at the trial. I do not approve this statement of facts within the meaning of Section 4 of Article 759a of the Code of Criminal Procedure because it is offered for filing more than 90 days after notice of appeal. No request for an extension of time for the filing of such statement of facts was made to me either before or after the 90 day period elapsed and I have never granted an extension in time.
Signed this 5th day of May 1965.”

The certificate of the trial judge puts his approval beyond the terms of Section 4 of Art. 759a, Vernon’s Ann.C.C.P., after the expiration of 90 days.

Were the statement of facts properly approved by the trial judge within the terms of Section 4 of Art. 759a, V.A.C.C.P., this Court still is precluded from considering same in view of our holdings in Selvidge v. State, 171 Tex.Cr.R. 140, 345 S.W.2d 523; Hill v. State, Tex.Cr.App., 375 S.W.2d 306, 307, and McDonald v. State, Tex.Cr.App., 385 S.W.2d 253.

The motion for rehearing is overruled.

Opinion approved by the Court.


author: McDONALD, Presiding Judge. MORRISON, Judge

text:
    Ronald Eugene McDONALD, Appellant, v. The STATE of Texas, Appellee.
    No. 38198.
    Court of Criminal Appeals of Texas.
    May 19, 1965.
    Rehearing Denied Oct. 13, 1965.
    Tom Upchurch, Jr., Amarillo, for appellant.
    Dee D. Miller, Dist. Atty., Patrick H. Mulloy, Jr., Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

This is an appeal from an order revoking probation.

Upon his plea of guilty before the court on May 20, 1964, appellant was found guilty of receiving and concealing stolen property and his punishment was assessed at a term of six years. The execution of the sentence was suspended and probation was granted.

Among the conditions of probation was that the appellant commit no offense against the laws of this or any other State.

Following the granting of probation on May 20, 1964, the district attorney filed a motion to revoke on October 16, 1964, and a hearing on the motion was set for October 22, 1964. The motion alleged that the appellant on or about June 20,1964, committed the offense of theft from the person of Georgia Adell Cook. It further alleged that the appellant on or about September 27, 1964, committed the offense of burglary by breaking and entering the house of J. B. Stephenson.

At the hearing on revocation, the evidence reveals that on the morning of September 29, 1964, the owner discovered that the glass was broken out of the front door of his Lotta-Burger Drive-In building, that $249 in money belonging to him was taken therefrom, and that he did not give anyone his consent to break and enter the building and take the money therefrom.

Curtis Ivery testified that he broke a window in the Lotta-Burger Drive-In, and then he, the appellant, and Gus Mitchell entered the building about 11 P.M. and took some money; that he saw the appellant in the building, and that, “I heard somebody say, ‘get the money’, and I thought it was McDonald (appellant).”

Testifying for the appellant, Bonnie Harper testified that she was with the appellant on the night of September 27, 1964, until 12:30 A.M. September 28, and that they did not see Curtis Ivery during that time.

Mrs. W. M. Cook testified that about 9 P.M., June 20, 1964, she and her husband were closing a grocery store which they operated, and as she arrived at the car carrying a money bag containing about $400 in money a man suddenly grabbed the bag and ran, but they were unable to apprehend him and never recovered any of the money.

The testimony of W. M. Cook corroborates that of his wife except he states that the money was taken on or about June 20, 1964. Neither Mr. nor Mrs. Cook was able to identify the appellant as the person taking the money.

Willie James Black testified that while he was with the appellant near the Cook Grocery Store on the night of September 27, appellant told him that he was going to take Mrs. Cook’s money and for him (Black) to wait for him; that when he saw the appellant a short time later, “He (appellant) just said he got it,” and the next day the appellant gave him $75.

On cross-examination Black testified that his conversation with the appellant about getting the money was on August 15; and that he saw the appellant during June, 1964.

Appellant contends that the trial court abused its discretion in revoking his probation.

To support his position he urges that the testimony about the dates of the commission of the two alleged offenses is confusing and contradictory; that the proof fails to show that he was actually involved in the burglary; and that the state failed to refute the alibi testimony of his witness Harper.

The statutory requirement that a conviction cannot be had upon the testimony of an accomplice unless corroborated is not applicable upon a review on appeal of a hearing to revoke probation. Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566.

Proof that the appellant participated as a principal in the commission of either offense alleged would be sufficient to support the order of revocation.

The result of such hearing is not a “conviction” but a finding upon which the trial court may exercise his discretion by revoking or continuing the probation. Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589. A proceeding to revoke probation is not a criminal trial. Soliz, supra; Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774. On appeal, the review of proceedings in a probation hearing will be limited to a determination of whether or not the trial judge abused his discretion in revoking the probation. Soliz, supra; Jones v. State, 159 Tex.Cr.R. 24, 261 S.W.2d 317.

At the conclusion of the hearing, the judge was authorized to accept or reject any or all of the testimony of any witness. He may look to all the evidence in the case, that offered by the state, as well as that offered by the appellant, in determining the facts and issues before him. Gray v. State, Tex.Cr.App., 379 S.W.2d 910.

It is concluded that the trial court did not abuse his discretion in revoking the order granting probation.

The judgment is affirmed.

MORRISON, Judge

(dissenting).

As I view this record, the testimony introduced by the State at the hearing to revoke appellant’s probation is so conflicting and inconclusive as to make it mandatory that we hold that the trial court abused his discretion in revoking probation on such evidence.

In order to justify such a conclusion, I point out the following. The owner of the Lotta-Burger Drive-In testified that $249.00 was taken, yet the State’s witness Ivery testified that he got only $7.00 from the burglary and that appellant got nothing. Ivery first testified that he saw appellant inside the Lotta-Burger Drive-In, but later said that he did not see him, but thought he heard him inside the burglarized premises. The Cooks, who readily admitted that they could not identify the appellant as the man who committed the theft, set the day of the theft from them as June 20, while the State’s witness Black set the date of the theft variously at September 27, and August 15, and stated that this appellant gave him a portion of the proceeds on August 17.. Black’s testimony reflects that he did not see the appellant commit the theft.

To affirm this order of revocation would be abdicating the jurisdiction of this Court and nullifying the Act of the Legislature which gives the probationer the right of appeal from revocation as provided by Section 8, Article 781d Vernon’s Ann.C.C.P.

I respectfully dissent.


author: WOODLEY, Judge. MORRISON, Judge.

text:
    Maxie Wayne HART, Appellant, v. The STATE of Texas, Appellee.
    No. 38111.
    Court of Criminal Appeals of Texas.
    May 26, 1965.
    Rehearing Denied June 23, 1965.
    Second Rehearing Denied Oct. 13, 1965.

      Marion G. Holt, Nacogdoches, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Tried upon an indictment alleging an assault with intent to murder with malice, appellant was found guilty by the jury of aggravated assault and was assessed a term of 9 months in jail and a fine of $500.

The sufficiency of the evidence to sustain the conviction for the lesser offense submitted to the jury in the court’s charge is not questioned.

The assault was alleged to have been made upon Tommy Hutto. He testified that appellant, without provocation, struck him with a blackjack and, during the ensuing encounter, fired several shots toward him with a pistol. Hutto’s testimony was corroborated by other witnesses for the state.

Appellant denied that he had a blackjack, or struck Hutto or that he fired his pistol at Hutto. His testimony was corroborated by a witness.

The jury resolved the fact issues raised by the testimony against appellant and there is evidence sufficient to sustain their verdict.

In his brief appellant presents as bills of exception his motion for mistrial and objection to the court communicating with the jury while they were deliberating.

There are no formal bills of exception. The complaints designated as bills of exception which relate to motions complaining that the trial judge received and answered certain communications from the jury present nothing for review, there being no certification by the court or showing in the record that any such message was in fact received by the court or answered.

The statement of a ground of objection is not a certificate of the judge that the facts that form the basis of the objection are true. 5 Tex.Jur.2d 330, Sec. 200. A motion for new trial is but a pleading and will not prove itself. 5 Tex.Jur.2d 265, Sec. 167.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

By supplemental transcript, appellant has called our attention to his bill of exception in which he complains of the court’s answer to a question from the jury. The written question was unsigned and read as follows: “Charles Phillips has disqualified himself as a Jurior (Juror) because of the cows he has on the Maxie Wayne Heart (Hart) land.. He does not feel he can make an impartial decision,” to which communication the court replied in writing, “Lady and Gentlemen, All 12 of you are qualified as jurors in this case. Please proceed with your deliberations; s/ Jack Pierce, Judge Presiding.”

The bill itself does not state sufficient facts to- show that error occurred, and since no evidence appears to have been adduced at the hearing on the motion for new trial, this Court is without authority to reverse this conviction because of the incompleteness of the bill. Peters v. State, 138 Tex.Cr. R. 613, 137 S.W.2d 1008.

Appellant’s motion for rehearing is overruled.


text:
    Hubert D. WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38300.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    Rehearing Denied Oct. 13, 1965.
    Doss Hardin (On Appeal), Fort Worth, for appellant.
    Sam Cleveland, Dist. Atty., Stephenville, John R. Lindsey, Dist. Atty., Jacksboro, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is incest; the punishment, 10 years.

The indictment alleged the date of the offense as February 16, 1964. However, at the close of the case the State elected to go to the jury on an offense shown to have occurred about the last part of October or the first part of November, 1961, and the Court in his charge so instructed the jury.

The sole question presented is whether or not the prosecutrix is an accomplice as a matter of law. We have examined the cases cited by appellant and the State with care so that our disposition of this case will be as consistent with them as is humanly possible.

Prosecutrix was 19 years old at the time of the trial and was 16 on the date of the offense which was submitted to the jury. She testified that her first act of intercourse with appellant, her father, occurred in August of 1958. Until the last part of October or the first part of November, 1961, these acts of intercourse continued two or three times a month without any protest or report from prosecutrix. On this- last named occasion, prosecutrix, according to her testimony, protested and appellant beat her with his belt until she agreed to have an act of intercourse with him. The younger children were in the house, but prosecutrix: made no outcry. This assault left marks on her legs, and when her mother asked her about them, she told her that she had injured herself in physical education class.

These acts continued without further protest or report until the fall of 1963. At that time prosecutrix began dating Earl Musick, who was not going to her school. At first appellant voiced no protest, but some two months later, appellant told her to stop seeing Earl, however, she kept on seeing him. According to the testimony of her sister, the appellant threatened to move the whole family to Dallas if she didn’t “break up” with Earl, to which the prosecu-trix replied, “I won’t go”. Prosecutrix testified that for some three or four years prior to February 16,1964, she and appellant had been engaging in both natural and unnatural acts of intercourse, that on that date, she, her mother and her two sisters had planned to go to a drive-in theater, but that appellant protested saying that her next oldest sister had stayed home to look after the two youngest sisters the last time they had gone out and that it was her time to stay home. An argument ensued initially, but finally appellant agreed that all might go; however, the prosecutrix remained at home anyway. After her mother and two sisters left, prosecutrix drove her two younger sisters a mile to her grandmother’s house, told her grandmother and her aunt that she was going for a drive, but returned immediately to her house and had both a natural and an unnatural act of intercourse with appellant. Finally, on February 24, she told her oldest sister about what had been occurring; on the following day she told her mother, and they all went to live with her grandmother, her aunt and her uncle, where they were residing at the time of the trial. She estimated that she and appellant had engaged in 128 acts of intercourse over a period of five and one-half years before she ever told anyone about it, though she was with her mother every day and had relatives living in the same city.

Prosecutrix testified that she was 5'4" tall and that during the two years prior to the trial her weight had varied from 115 to 130 pounds. She described appellant as being 5'10" tall and weighing between 135 and 140 pounds.

Prosecutrix’ sister testified that appellant had had opportunities to be with prosecutrix alone. This was the only evidence adduced in an effort to corroborate prosecutrix. If we find prosecutrix to be an accomplice, then this will not constitute sufficient evidence to corroborate her.

In appraising the above facts it is important to remember that on February 16, 1964, when she took her younger sisters to her grandmother’s house, she had left appellant at home without an automobile and admitted on cross examination that if appellant had come after her, her grandmother and aunt would not have permitted him to take her away against her will, but instead of staying there, she told her grandmother and aunt a falsehood about where she was going and returned home where she immediately undressed and got in bed with appellant. While it is true that prose-cutrix testified that she submitted to each act of intercourse after October 1961, because of threats made by appellant and because of her fear for herself and her mother, she actually told of two chastisements made upon her by appellant, the first in the fall of 1961 heretofore mentioned, and another in the fall of 1963, which resulted from appellant’s displeasure concerning the conduct of the young people at a dance she was attending.

Prosecutrix’ defiance to appellant’s threat to move the family to Dallas reflects a temperament sufficiently strong-willed to resist her father’s desires when she wished to do so. Other than the resistance which she offered prior to the alleged beating in 1961, there is no evidence that prosecutrix attempted to oppose her father’s advances.

Judge Hawkins’ reasoning in his concurring opinion in Alexander v. State, 126 Tex.Cr.R. 625, 72 S.W.2d 1080, is to the writer most compelling. He said that where repeated acts are shown, coupled with a delayed outcry, a prosecutrix of the same age as the one at bar would in his judgment be an accomplice as a matter of law.

In Wilson v. State, 147 Tex.Cr.R. 653, 184 S.W.2d 141, where the evidence showed that the prosecutrix had engaged in acts of intercourse with the accused over a period of five years without ever reporting the same to anyone and where the State contended that she had submitted through fear, this Court held that the threats were not sufficient to excuse the prosecutrix from making an outcry at the time of the commission of the offense relied upon by the State for conviction and were not sufficient to explain her failure to report the prior acts. Wilson is further authority for the rule that evidence which only shows that an accused had an opportunity to have an act of intercourse with the prosecutrix does not tend to establish the fact that intercourse actually took place and is insufficient to corroborate prosecutrix’ testimony that it actually occurred.

In Moss v. State, 141 Tex.Cr.R. 193, 147 S.W.2d 1085, where only one act of intercourse was shown, this Court had occasion to discuss prosecutrix’ testimony about appellant having whipped her and having lectured her about keeping company with a certain young man with whom she was infatuated and held that since prosecutrix waited almost a year to report the matter, she was an accomplice as a matter of law.

In Mercer v. State, 17 Tex.App. 452, this Court held that even though prosecutrix testified that she submitted to the acts of intercourse because of her fear of appellant, her failure to report the continued acts of intercourse, which began when she was 13 until she became pregnant some seven years later, made her an accomplice as a matter of law.

In Marchbanks v. State, 125 Tex.Cr.R. 436, 68 S.W.2d 1038, a case in which the first act of intercourse took place when prosecutrix was 14 years old and she testified that she had always done what her father told her to do and did not actively resist his advances and made no outcry which might have been heard by her mother in the house nearby and failed to report the many acts which followed over a long period of time until many years later, this Court held that she was an accomplice as a matter of law.

Masten v. State, 109 Tex.Cr.R. 596, 6 S.W.2d 367, and on retrial in 20 S.W.2d 780, and Trejo v. State, 135 Tex.Cr.R. 39, 117 S.W.2d 115, also support appellant’s contention.

The only case cited in the State’s brief as supporting the contention that prosecu-trix was not an accomplice is Walker v. State, 166 Tex.Cr.R. 297, 312 S.W.2d 666. Walker was a sodomy case in which the accused was shown to have required his seven year old daughter to commit an act of sodomy upon him on one isolated occasion. There was no question in that case of repeated acts through the years without the prosecutrix reporting the same as we had in the cases above cited and in the case at bar.

Having reached the conclusion based upon the authorities cited, it becomes our duty to reverse this conviction.

The judgment is reversed and the cause is remanded.


text:
    Robert Kale SHAWHAN, Appellant, v. The STATE of Texas, Appellee.
    No. 38327.
    Court of Criminal Appeals of Texas.
    June 9, 1965.
    Rehearing Denied Oct. 13, 1965.
    No attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., Don Koons, John Emmett and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, four days in jail and a fine of $200.00.

Patrolman Wade of the Dallas Police testified that while on duty at 2:45 a. m. on the night in question he observed an automobile approaching a stop sign at a speed in excess of SO miles per hour, that when its brakes were applied he could hear the tires “squealing”, and that after the automobile passed the stop sign it turned off on a service road, came to a halt in the center of such road and extinguished its lights. He stated that he asked the appellant, who was alone, if he was in trouble, and, upon receiving a negative reply, asked appellant to get out of the automobile. When he did Wade observed that he was unsteady on his feet, that his face was flushed and his eyes bloodshot; he also detected an odor of alcohol on his breath and expressed the opinion that appellant’s answers to his questions were “confusing and slurry” and that appellant was intoxicated. Wade testified that he gave appellant an intoximeter test at the scene and that as the result of the visual preliminary color change test, appellant was brought to jail. The chain of custody of the test was proven, and Dr. Mason testified that he made an analysis of the test and found that it indicated that the person who had taken the test had a blood alcohol concentration of .176 per cent, which was indicative of intoxication. The State’s case is in many respects similar to the one before this Court in Jackson v. State, 159 Tex.Cr.R. 228, 262 S.W.2d 499.

Appellant testified that he was suffering from an inflamed wisdom tooth on the day in question, that he was given emergency treatment by his dentist, that he had attended a party that night as a matter of obligation and that while there had consumed two cups of punch, but that he was not intoxicated. In all of this he was corroborated by his dentist and others who had attended the party, but it was proven through them that the punch contained some form of alcohol. Appellant testified that he took his wife home after the party and later in the night went for a drive to relieve his mind from his toothache, that he did not see Patrolman Wade’s patrol car and that he came to a stop off the service road to change his shoes and to think.

The sole question presented for review is the sufficiency of the evidence to support the conviction. Without the scientific evidence, a jury might well have considered appellant’s testimony and that of his impressive array of witnesses more favorably, but they have decided the issue adversely to appellant, and we find it sufficient as we did in the case cited above.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Ted Marlin THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38277.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    Rehearing Denied Oct. 13, 1965.
    Sam W. Bostick, W. B. Portis, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Joe Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for aggravated assault upon a police officer; the punishment, six months in jail.

It was alleged that the appellant made an aggravated assault upon A. L. Cor-nett, a police officer of the city of Pasadena, Texas, who was in the lawful discharge of duties of his office at the time of the assault.

While visiting in the home of his former wife, the appellant became very upset when she told him she had a date with another man and asked him to leave. Upon leaving, the appellant badly damaged her automobile. When Officers Carr and Lawless arrived at her home they found that the damage to her car was as follows: two tires and two fan felts were cut, the distributor cap was broken, and the carburetor had been removed and thrown on the garage floor. As the officers started to leave, the appellant approached, driving a 1963 Thunderbird. The officers drove their marked car in front of him and turned on the red light in an effort to stop him, but he turned into a yard and around the patrol car and drove away at a high rate of speed. The officers pursued him at 80 to 100 mph for several miles. During this time he ran several stop signs and red traffic lights. Other offciers, including Officer Cornett, entered the chase after being alerted by radio. When a police car came alongside appellant’s car, he turned into the parking lane on the side of the road and stopped. Officer Cornett parked his car so its headlights shined on the appellant’s car. Cornett opened the door on the driver’s side, and after the appellant got out he searched him. When Officer Cornett started to put the handcuffs on the appellant, he struck Cornett on the shoulder and began to fight. Cornett hit the appellant twice in the head with a pistol but was unable to subdue him until he received assistance from other officers.

The evidence reveals that A. L. Cornett at all times here in question was employed as a police officer of the city of Pasadena; that he was on active duty, riding in a marked vehicle and wearing his policeman’s uniform.

Testifying in his own behalf, the appellant stated that he went to the home of his former wife to pay some money for child-support ; that when she asked him to leave, as she had a date, he became upset and lost control of himself, and cut the tires and radiator hose and did other damage to her car and left. After going a short distance he decided to return, apologize to her, and tell her that he would repair the car. As he came within view, and saw a police car, with red light flashing, sitting in front of the house, he became frightened, passed around the patrol car, and drove away at a high rate of speed through the green traffic lights but slowed down at the red lights before going ahead. When the appellant heard some gunshots during the chase, he thought the officers were going to kill him and, as he drove to the shoulder of the road to stop, a police car came alongside his car and an officer had a shotgun pointing toward him. He further testified that Officer Cornett jerked him from his car and struck him with a pistol from behind on head; that he and other officers cursed him and severely beat him, and that he made no resistance because he was scared for his life.

There is testimony from both the appellant and the state that appellant had been previously committed to a state mental hospital, but there was testimony that he did know right from wrong at the time of the assault and at the time of the trial. No charge on insanity was submitted and none was requested.

The appellant called several witnesses whose testimony as to the facts, including his injuries, corroborated his testimony.

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

The contention is made in appellant’s brief that the state failed to prove venue. According to the record no issue as to venue was made before the return of the verdict in the case. Under the provisions of Art. 847, C.C.P., this court will presume, in the absence of a bill of exception to the contrary, that venue was proved. Masters v. State, 165 Tex.Cr.R. 303, 306 S.W.2d 355; Harp v. State, Tex.Cr.App., 383 S.W.2d 176.

There are no formal bills of exception and no objections to the court’s charge.

The informal bills have been considered and none of them present error.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Alonzo BELL, Appellant, v. The STATE of Texas, Appellee.
    No. 38324.
    Court of Criminal Appeals of Texas.
    June 9, 1965.
    Rehearing Denied Oct. 13, 1965.

      No attorney of record on appeal, for appellant.
    Henry Wade, Dist. Atty., Don Wills, John Nelms and W. John Allison, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is unlawful possession of a narcotic drug; to-wit, marihuana; the punishment, 20 years confinement in the Texas Department of Corrections.

The state adduced evidence from Officer Johnny Johnson of the Dallas Police Department reflecting that he was acting as an undercover agent buying narcotics. Officer Johnson worked with Clyde Harris, an informer and purchaser. The two men rode around in Johnson’s car in South Dallas looking for someone to buy marihuana from. They then went to the 3300 block of Oakland and parked in front of the Cam Cafe, a colored beer joint and cafe, around 10:00 p. m. on the date in question, April 24, 1964. The witness and Harris were standing by the car talking when the appellant approached and started talking to Clyde Harris. Harris asked appellant if he had any “squares” (a slang expression for marihuana.) The appellant said that he didn’t have any “squares” but that he could get some. Appellant asked Harris how many and Harris replied five. The witness then gave Harris $5.00, which Harris gave to appellant. Appellant then went around to the side of the Cam Cafe, out of sight. He was gone approximately 5 or 6 minutes, then returned and gave Harris the cigarettes in the presence of the witness, Johnson. There were 3 cigarettes, which Harris handed to Johnson. Appellant said that he could only get “tray”, and he handed Harris $2.00 in change and Harris handed it to Johnson. Johnson related that he put the cigarettes in his pocket. He stated that they looked like marihuana cigarettes. Johnson and Harris then drove off and Johnson telephoned Detective Cavender. The next morning the witness met Detective Cavender and Detective Wilson, and he gave the cigarettes to Detective Cavender, placing his initials on them prior to delivering them to Mr. Caven-der. Johnson later pointed out appellant and appellant was arrested.

Testimony adduced from Clyde Harris substantially corroborated that of Johnson.

Detective C. H. Cavender testified that he had been with the Dallas Police Department for 14 years; that he worked in the Narcotics Section. He related that Officer Johnson met him on April 25 and gave him 3 cigarettes. This witness described the cigarettes as being a green vegetable substance that appeared to be marihuana. The officer further related that he put his initials on the cigarettes, rolled them back up, put them in an envelope, initialed the envelope and dropped it in the narcotics box in the crime scene search section. He stated that the envelope was sealed. The detective identified the cigarettes as being the same ones Johnson had given him.

By stipulation, testimony was adduced from R. L. Studebaker showing that he had taken the envelope with the cigarettes in it out of the lock box and delivered them to Louie Anderson, a chemist at Parkland Hospital.

Louie Anderson testified that he was a chemist for Dallas City-County Criminal Investigation Laboratory at Parkland Hospital. He testified that he had examined the envelope containing the cigarettes and said: “These are marihuana cigarettes”.

Mr. Anderson related that he had received them from R. L. Studebaker on April 27, 1964, and that after he had examined them, he turned them over to Dr. M. F. Mason.

Dr. M. F. Mason testified that his analysis showed the cigarettes contained vegetable material which was marihuana.

No defensive testimony was adduced other than stipulated testimony from Clyde Wilkerson to the effect that he was employed as an elevator operator for the Texas Bank Building since April 16, 1961, and that Alonzo Bell, the appellant, came to work as a fellow employee as an elevator operator and continued in such capacity until about June 19, 1964.

We find the evidence sufficient to sustain the verdict.

Appellant contends that the trial court erred in refusing to grant his Amended Motion for New Trial wherein he alleged newly discovered evidence of identity. The record on the merits reflects that appellant was known to the witness, Clyde Harris, as James Shell. It is appellant’s contention that the use of an “alias” was prejudicial to him. The evidence is abundantly sufficient as to appellant’s identification as the possessor and seller of narcotics, marihuana, whether he was known as Bell or Shell. We perceive of no error in the action of the trial court in overruling appellant’s amended motion for new trial. If the evidence were newly discovered, we fail to see how it could have helped appellant had it been adduced at the trial for we can see no prejudice to appellant in being known by an “alias”.

Appellant contends that the trial court erred in refusing to grant his motion for a mistrial as a result of an unresponsive answer elicited from a state’s witness on cross-examination pertaining to an unrelated offense. Appellant’s counsel asked the witness, Clyde Harris, if he had bought any cigarettes or marihuana from appellant before, and the witness replied that he had smoked marihuana with him before. “I had seen him buy it.” We think the answer, while unresponsive, was clearly harmless. The question asked called for an answer encompassing an extraneous transaction or offense. We fail to see any material difference in smoking or possessing marihuana. The smoker would necessarily have to be a possessor in order to have something to smoke. The trial court sustained the objection and instructed the jury to disregard it.

We find no error in the court’s action.

Finding no reversible error, the judgment is affirmed.


author: WOODLEY, Judge.

text:
    Jack Van MAYS, Appellant, v. The STATE of Texas, Appellee.
    No. 38315.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    Rehearing Denied Oct. 13, 1965.

      Anthony J. Ferro, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Clarence V. Lyons, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $50.

The sufficiency of the evidence is not questioned.

The agreed statement of the evidence shows that two police officers testified in effect that at approximately 9:15 A.M. appellant was observed driving a motor vehicle upon a public street or highway in San Antonio; that appellant was stopped after the officers had observed his driving and his failure to stop for a red light, and that it was the opinion of the officers that appellant was under the influence of intoxicating liquor. Appellant testified and offered the testimony of his friend George Tinney to the effect that they were test car drivers and had worked all night, each having driven 500 miles; that they got off at approximately 8 A.M. on the day in question; that appellant drove George Tinney to his home and “from there he proceeded on to his home, having been stopped on the way and arrested for driving while under the influence of an intoxicating liquor.”

In his amended motion for new trial appellant asserted, as ground to set aside the verdict, jury misconduct “said misconduct being as follows to wit: That a juror during the deliberations made a statement to the other jurors that they all knew the rule, ‘If you drink don’t drive and if you drive don’t drink.’ ”

The motion further alleged that all of the jurors had stated on voir dire examination that they had no prejudice against a person who took a drink and then drove an automobile, and fully understood that in order for a person to be guilty of driving while under the influence of intoxicating liquor such drinking must have affected the normal use of his mental and physical faculties and that merely drinking an intoxicating liquor and driving an automobile was not prohibited by the law.

The facts alleged as constituting jury misconduct were proved at the hearing on the amended motion for new trial by the testimony of the jurors De Leon and Mrs. Medina. Both testified that they were not influenced by the statement made by the juror San Miguel in arriving at their verdict.

Appellant’s claim of jury misconduct is without merit.

Appellant contends that the juror San Miguel, who made the statement quoted, was a prejudiced juror and not a qualified juror as his voir dire examination showed him to be.

We cannot accept the premise that one who states and believes in the well publicized slogan “If you drive don’t drink; if you drink, don’t drive,” is thereby disqualified to act as a juror in a drunk driving case because he is prejudiced against anyone who takes a drink and then drives, or because under his interpretation of the law anyone who takes a drink and then drives should be convicted whether he is under the influence of intoxicating liquor or not.

The juror De Leon testified: “I think he was stating his own interpretation of the law.” This, of course, was no more than a conclusion of the witness. When a similar conclusion was sought from the other juror who testified the court properly sustained the objection and the question was withdrawn.

It is interesting to note that, though appellant’s claim that the juror was disqualified relates to his failure to recognize the distinction between a driver who is under the influence of intoxicating liquor and one who has taken a drink, no witness testified as to how many drinks appellant had consumed. Appellant did not admit and his witness did not testify that he had had one drink. In fact their testimony appears to have been that he had not consumed any alcoholic beverage.

No error appearing, the judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    Ernestine VORDENBAUM, Appellant, v. Milton O. ACKERMANN et ux., Appellees.
    No. 14392.
    Court of Civil Appeals of Texas. San Antonio.
    July 28, 1965.
    On Rehearing Sept. 8, 1965.
    Rehearing Denied Oct. 6, 1965.

      Threlkeld, Saegert & Saegert, Seguin, for appellant.
    Elbert J. Jandt, Seguin, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by Ernestine Vordenbaum on July 12, 1960, against Milton O. Ackermann and wife, Emelie Acker-mann, in the form of a trespass to try title action, and in the alternative to set aside a deed executed by her to the defendants, conveying a certain tract of land located in Schertz, Guadalupe County, Texas, and fully described in her petition. The trial court sustained defendants’ motion to strike plaintiff’s second amended original petition and dismissed the cause, from which judgment of dismissal plaintiff has prosecuted this appeal.

Plaintiff had filed her original petition and her first amended original petition. Thereafter on May 13, 1964, Wilbur Paul Vordenbaum, describing himself as “temporary guardian and grandson and next of kin of Ernestine Vordenbaum,” filed a second amended original petition, alleging, among other things, that “Ernestine Vor-denbaum is now a patient of and confined to the San Antonio State Hospital and is a person of unsound mind,” and praying that he be authorized to prosecute this suit as her guardian, pursuant to the provisions of Rule 44, Texas Rules of Civil Procedure.

On May 20, 1964, the defendants filed their motion to strike this second amended original petition because it did not comply with the provisions of Rules 46 and 49, T.R. C.P., relating, among other things, to original and supplemental petitions, and asked that plaintiff be required to replead.

On December 14, 1964, the trial court signed an order reciting that “On the 21st day of May, 1964, came on to be heard the motion filed herein by the defendants” to strike plaintiff’s second amended original petition, and ordering and adjudging that the motion to strike, be sustained. There is nothing in this order with reference to a repleader. The court said: “and it appearing on this date, December 14, 1964, that plaintiff desires to stand on his pleadings and not to replead the same after having had a reasonable opportunity to do so, it is further Ordered that this cause be and the same is hereby dismissed, * *

Counsel for plaintiff admits that he was present on May 21, 1964, when the motion to strike was presented to the court and argued, but he never heard any ruling made on the motion, and was under the impression that the court adjourned without making any ruling upon the motion. It appears that there is no docket entry, or anything of record, indicating that the order to strike was made, until the order was entered on December 14, 1964, containing the orders granting the motion to strike and the motion to dismiss the cause, both in one instrument. Neither order says anything about a repleader having been ordered. The second order merely recites that “plaintiff desires to stand on his pleadings and not to replead * * We can hardly deduce from all of this that plaintiff had been ordered to re-plead and had failed to do so.

Under the provisions of Rule 65, T.R.C.P., when plaintiff’s second amended original petition was stricken, such action had the effect of restoring as a live pleading plaintiff’s first amended original petition, which was a sufficient pleading, unless exceptions should be sustained to it, and in that event the plaintiff’s original petition would be restored as a live pleading, on which he would have a right to go to trial unless this pleading was also stricken. Plaintiff’s second amended original petition was filed by a temporary guardian on behalf of an elderly lady, alleged to be of unsound mind and confined in an institution. Plaintiff contends he had no notice that he had been ordered to replead. The only thing of record relating to a repleader by plaintiff is the orders entered on December 14, 1964, which do not show that plaintiff had been ordered to replead, they only show he did not wish to replead. The striking of the second amended original petition had the effect of reviving and making the first amended original petition a live pleading, in full force and effect. Under all of these circumstances, the trial court erred in dismissing plaintiff’s cause of action. Shaw v. Universal Life & Accident Ins. Co., Tex.Civ.App., 123 S.W.2d 738. Such action was more drastic tha-n sustaining a general demurrer to plaintiff’s pleadings. The general demurrer practice is prohibited by the provisions of Rule 90, T.R.C.P.

This brings us to a consideration of appellant’s contention that the trial court erred in overruling and not sustaining his motion for a summary judgment in his favor. It is true that ordinarily an order denying a summary judgment is an interlocutory order from which no appeal lies, but where the entire cause has been disposed of by a judgment of dismissal, a final judgment, from which an appeal does lie, the appellant will be heard to contend that the court erred in not granting his motion for a summary judgment, if he brings the matter properly before the appellate court. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396.

The matter is brought before this Court by a supplemental transcript and a so-called “Bill of Exception No. 1.” The trial court ordered Bill of Exception No. 1 filed as a part of the record, but at the same time refused to approve it because the order appealed from “is interlocutory in its nature and as an order overruling a motion for summary judgment, it is not appealable; if held appealable, the exception herein presented is not timely and therefore not allowed.”

It is plain that the only reason why the trial judge did not approve the bill was that he thought plaintiff was attempting to appeal from an interlocutory order. We feel that in view of the provisions of Rules 372 and 373, T.R.C.P., we should give effect to this bill of exception. It contains principally written documents shown by the supplemental transcript to be on file in the district clerk’s office.

The record shows that on December 7, 1951, Ernestine Vordenbaum executed a warranty deed to Milton O. Ackermann and wife Emelie Ackermann, to her home in Schertz, Guadalupe County, Texas, based upon a contractual consideration. This deed contained a vendor’s lien clause and further set forth her remedy in case of default in the following language: “Providing that vendor if there be any default in any of the obligations above set out may foreclose the lien herein expressed as provided by law at her option.” This deed cannot be regarded as an executory contract but must be regarded as an executed contract. Duke v. Garrett, Tex.Civ.App., 276 S.W.2d 587.

This record does not conclusively show as a matter of law that this fully executed deed was rescinded by the parties thereto. If the record is sufficient to raise a fact issue as to rescission, it could not be disposed of in a summary judgment proceeding. Therefore, the trial court did not err in denying plaintiff’s motion for a summary judgment.

For the error above pointed out, the judgment of the trial court dismissing this cause is reversed and the cause remanded.

On Motion for Rehearing.

Appellant has filed a motion for rehearing herein in which she strenuously insists that we were in error in not rendering judgment in her favor upon her motion for summary judgment which was overruled by the trial court.

Under all the facts herein, we have jurisdiction to reverse and render an order of the trial court refusing a motion for summary judgment where a final judgment has been rendered. Gulf, Colorado & Sante Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396.

We have concluded that appellant’s contention is well taken and that judgment should have been rendered in her favor, and the cause should not have been remanded for a new trial.

The record shows that appellees were placed in possession of the property involved by the warranty deed executed by appellant conveying the property to ap-pellees in consideration of their taking care of her for the rest of her life. Appellant retained a vendor’s lien to guarantee that this consideration would be performed. Ap-pellees moved into appellant’s home and began caring for her as was required by the deed. After two months, they learned that appellant had previously conveyed her home to her son Roman, and for this reason decided appellant had no title to the land, and so informed appellant and announced that they were abandoning their agreement to care for her. Appellant induced appellees to remain with her on a promise that she would pay them for living with her. After seven more months appellees not having been paid, moved out of appellant’s home and left her in full possession of the premises. Thereafter appellees rendered services for appellant, but only as favors, and not in an attempt to pay and perform the contractual consideration provided for in the deed. Thereafter appellant cared for her home, paid the taxes, and kept it up as best she could. After some ten years appellant brought this suit in trespass to try title to her home. Roman Vordenbaum never performed the contractual consideration provided for in his mother’s deed to him of her home. Roman has now deeded the property to his mother and there is no outstanding title in Roman’s name.

The appellees having abandoned their contract to care for appellant, having abandoned their possession of the property and returned the same to appellant, having made no further effort to perform the contractual consideration, and having not even contended that they can now go back and do that which they contracted to do, they have no defense to this suit in trespass to try title. Appellant, by reason of the vendor’s lien expressly retained in the deed, has the superior legal title and is entitled as a matter of law to recover the title and possession of her home. Johnson v. Smith, 115 Tex. 193, 280 S.W.2d 158; Barker v. Temple Lumber Co., 120 Tex. 244, 37 S.W.2d 721; Buckner v. Eubank, Tex.Civ.App., 131 S.W.2d 1099; Hall v. Dallas Joint-Stock Land Bank, Tex.Civ.App., 95 S.W.2d 200; Tilley v. Kangerga, 83 S.W.2d 787; Toler v. King, Tex.Civ.App., 11 S.W.2d 360; Lewright v. Reese, Tex.Civ.App., 223 S.W. 270.

Appellees do not contend that they performed their contract, but only that appellant came into court with unclean hands, in that she had no title to her home at the time she conveyed it to them. The evidence shows that appellees were not evicted, nor threatened with eviction. Roman’s title was defeated by reason of his failure to perform a condition precedent set forth in the deed to him, and any defect in appellant’s title is now cured by the deed from Roman to appellant.

Our judgment heretofore entered herein on July 28, 1965, is set aside and judgment here and now rendered reversing the judgment of the trial court dismissing the cause, and rendering judgment in appellant’s favor for the title and possession of her home, described as follows:

All that certain tract and parcel of land, part of the G. Malpaz Survey No. 67, Sec. 3, Subd. No. 10, in Guadalupe County, Texas, South of the G. H. & S. A. Railway, described as follows:
BEGINNING at a stake set in the S line of a 30 foot road; 30 feet from the most southern corner of a 30 foot lot conveyed to Lee Vordenbaum on the 17th day of August 1904, recorded in Vol. 24, pages 245/6 of the Deed Records of Guadalupe County, Texas, and 225 feet NE from the New County Road S of the Railway; THENCE NE 266 feet with line parallel to the S line of the lands of Lee Vordenbaum to a stake; THENCE S 40° E 201 feet to stake; THENCE S 50° W 255 feet to stake which is 225 feet N 50° E fr. the New County Road and 285 feet fr. the most east corner of the acre lot conveyed to the Trustees of the German Meth. E. Church; THENCE N 40° W 207 feet to place of beginning and containing one and one-fifth acres of land.

Being that same tract of land described in deed from Wm. A. Schneider et ux. to W. F. Vordenbaum, dated Nov. 29, 1904, recorded in Vol. 24, pages 370/1 of the Deed Records of Guadalupe County, Texas, and being that same tract of land conveyed by Roman Vordenbaum et ux. to Ernestine Vordenbaum by deed dated June 9, 1939, recorded in Vol. 185, pages 130/1 of the Deed Records of Guadalupe County, Texas, to which deeds and the record thereof reference is here made for descriptive and all pertinent purposes.

Reversed and rendered.