author: STEAKLEY, Justice. POPE, Justice SMITH, Justice

text:
    The AGRICULTURAL INSURANCE CO., Petitioner, v. Henry Harold DRYDEN, Respondent.
    No. A-10786.
    Supreme Court of Texas.
    Dec. 8, 1965.
    Rehearing Denied Jan. 26, 1966.
    Orgain, Bell & Tucker, Cleve Bachman, Beaumont, for petitioner.
    Woodson E. Dryden, William E. Towns-ley, Beaumont, for respondent.
   STEAKLEY, Justice.

Henry Harold Dryden, Respondent, was injured on his way to work when his automobile turned over after a sudden swerve to avoid hitting a dog. The question to be decided is whether he was in the course of his employment at such time and hence entitled to workmen’s compensation benefits. The jury found that he was; the judgment of the trial court based thereon was affirmed by the Court of Civil Appeals, one Justice dissenting. 388 S.W.2d 455. We hold that under Section lb of Article 8309, Vernon’s Annotated Texas Civil Statutes, Dryden was not in the course of his employment at the time of his injury.

Dryden was employed as the foreman or pusher of a carpenter crew and when directed to do so was required as one of his duties to transport in his personal automobile from work site to home to work site certain power tools owned by his employer and used by the carpenter crew. The tools weighed between 180 and 200 pounds. Dryden received an extra twenty-five cents an hour as foreman. It was necessary for Dryden to arrive at the work site fifteen or twenty minutes earlier in order to have the tools unloaded and ready for use by the carpenters at the time for them to commence their work. On the occasion in question, Dryden left his home about 5:15 a. m. for a new job site in Nederland, Texas. He was transporting the tools at the time and had left his home the required few minutes earlier. He traversed the route he would have used had he not been required to transport the tools. There is no suggestion in the record that Dryden would have sought means of getting to and from work other than driving his personal automobile had he not been assigned the duty of transporting the tools.

Section 1 of Article 8309, V.A.T.C.S., as material here, provides that the term “ ‘injury sustained in the course of employment’ * * * shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” Section lb of Article 8309 was added by the Legislature in 1957; it provides:

“Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

We held in Texas General Indemnity Co. v. Bottom (Tex.Sup.), 365 S.W.2d 350 (1963):

“When the provisions of Section lb are read in connection with those of Section 1 and our decisions construing and applying the same, we think the Legislature intended thereby to circumscribe the probative effect that might be given to the means of transportation Or the purpose of the journey rather than to enlarge the definition found in Section 1.”

In Janak v. Texas Employers’ Insurance Ass’n (Tex.Sup.), 381 S.W.2d 176 (1964), we analyzed Section lb as follows:

“Sec. lb, Article 8309, enacted in 1957, has two parts. The first part declares injuries during travel to be in the course of employment, and therefore compensable, only when transportation is (1) furnished as a part of the contract of employment, or (2) is paid for by the employer, or (3) is under the control of the employer, or (4) when ‘the employee is directed in his employment to proceed from one place to another place.’ ”

It necessarily follows that an injury occurring during transportation cannot be the basis of a claim that such was sustained in the course of employment, as required by Section 1 of Article 8309, unless one of the prerequisites enumerated in the first sentence of Section lb is present. It is undisputed that transportation was not furnished Dryden as a part of his contract of employment; that the transportation was not paid for by his employer; and that the transportation was not under the control of the employer. The final preliminary condition, that the employee be directed in his employment to proceed from one place to another place, is likewise absent. All of Dryden’s travel was going to and from work. His subjection to traffic hazards while so driving was not the result of, or caused by, any direction of his employer that he proceed from one place to another. There was no special mission assigned Dryden which required any travel by him apart from, or in addition to, his regular and personal transportation to and from work. Cf. Whisenant v. Fidelity Casualty Company of New York, 354 S.W.2d 683 (Tex.Civ.App.1962, writ ref., n. r. e.).

We recognize that language in cases such as American General Insurance Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370 (1957), Knipe v. Texas Employers’ Insurance Assn., 150 Tex. 313, 239 S.W.2d 1006 (1951), and Jones v. Texas Indemnity Ins. Co., 223 S.W.2d 286 (Tex.Civ.App.1949, writ ref.), may be considered generally supportive of the proposition that it cannot be said as a matter of law that Dryden was not in the course of his employment within the requirements of Section 1 of Article 8309. However, these decisions were before the enactment of Section lb and we do not reach the problem of these cases since Section lb precludes the qualification of Dryden’s injury as one sustained in the course of his employment.

The judgments of the Court of Civil Appeals and of the trial court are reversed, and judgment is rendered for Petitioner.

POPE, Justice

(concurring).

I agree with the result but for a reason somewhat different from that stated in the majority opinion. It is my opinion that Dryden was in the course of employment within the meaning of Section 1 and the first part of Section lb, Article 8309. Under Section lb Dryden had to prove that his injury occurred when transportation (1) was furnished as a part of the contract of employment, or (2) was paid for by his employer, or (3) was under the control of th employer, or (4) when he, Dryden, was directed in his employment to proceed from one place to another place. I would hold that Dryden brought himself within the fourth category. On the Friday before the accident, his employer directed him to take the employer’s power tools from a job site to the employee’s home in Jasper County and to deliver the tools on the following Monday morning from his home to a new job site in Nederland, Texas. He was directed to have the tools on hand and ready for use by the other workmen when they arrived. Ordinarily the employer provided a company truck to transport the power tools from one job site to another, but separate arrangements were made when the company truck was unavailable. Dryden’s additional responsibility to his employer to deliver the tools at the job site was more important than Dryden’s reporting for work himself. Without the tools, no one could work; with the tools, the other men could proceed with their work though Dryden himself did not. If Dryden had been unable to report for work, the tools nevertheless had to be delivered to the new job site. Dryden, in fact, left fifteen or twenty minutes earlier than he would have if he had not been responsible for the delivery of the tools. I would hold that Dryden was directed in his employment to proceed from one place to another to deliver the tools before the other employees arrived.

It is the concluding part of Section lb that defeats Dryden’s claim. The statute following the word “unless” states a two-pronged test that he was unable to meet. It provides:

“ * * * Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

Dryden under that provision, as a basis for his claim, had to prove two things. He had to prove that the trip to Nederland on the morning of the accident would have been made even had there been no personal or private affairs of his own to be' furthered by the trip. He met that test. He also had to prove that the trip would not have been made had there been no affairs or business of the employer to be furthered by the trip. This test is a difficult one for the employee. Dryden did not prove that he would not have made the trip but for the necessity of delivering the tools for the employer.

I concur in the result.

ON MOTION FOR REHEARING

SMITH, Justice

(dissenting).

I respectfully dissent. The holding that under Section lb of Article 8309, Vernon’s Annotated Texas Civil Statutes, the respondent, Dryden, was not in the course of his employment at the time of his injury, fails to recognize the full import of the contract of employment between the employer and the employee, Dryden. Dryden’s injury originated in the work of his employer. He was employed by the J & F Construction Company, a partnership. The partners were Jones and Fontenot. The firm was engaged in the business of constructing houses. The houses to be constructed and under construction were located in several towns and cities in Southeast Texas, near Beaumont and Nederland, Texas.

Dryden, when first employed, was just a member of a crew. Later he was elevated to the position of foreman or “tool pusher.” Both Dryden and Fontenot testified to facts showing a special contract of employment. The contract to transport the Company’s power tools was entered into on Friday afternoon before the accident occurred the following Monday morning. Dryden testified that on this particular Friday he had been working in the Pinewood addition on the Sour Lake highway; that Fontenot had a new job to begin in the town of Nederland, Jefferson County, the following Monday morning; that Mr. Fontenot came to the Pinewood job site that Friday afternoon and delivered the pay checks; and that Fontenot instructed Dryden to load the power tools in his automobile, transport them to his home near Evadale in Jasper County, and deliver the tools to a job site near Nederland, Texas, where the crew would be waiting to begin the construction of a new house with the power tools as well as their own hand tools. Dryden went on to testify that on occasions when Fontenot would enter into such agreements he, Fontenot, would help load the tools in the automobile. Fontenot testified that Dryden was originally employed as a carpenter, and later Dryden was promoted to foreman; that it was the general custom in the carpenter trade that each carpenter furnish a full set of hand tools “if he wants to work”; that he, Fonte-not, furnished the power tools. Fontenot testified that the Company usually furnished its own truck to transport the power tools from one job to another, and that he performed the job of actually driving the truck in transporting the power tools for the Company. When the Company truck was not available, he would arrange with Dryden to transport the tools. Fontenot testified that on this particular Friday, his partner, Jones, had possession of the Company’s tool truck (usually driven by Fonte-not) and had gone to Houston to “pick up” a contract on a building in Beaumont; that on that same Friday he, Fontenot, employed Dryden to pick up the power tools, transport them in his automobile to his home in Jasper County and to have them ready for use by the crew in Nederland the following Monday morning. Dryden and Fontenot both testified that the power tools were never left on a job unattended. Fontenot testified that on that particular Friday, he assigned “him [Dryden] his work.” Part of that work was to transport the power tools to the job to be started at Nederland. These facts are sufficient to support a finding that the injury is of a kind and character that had to do with and originated in the work, business, trade or profession of his employer and was received while he was engaged in or about the furtherance of the affairs or business of the employer. See Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex.Sup.1963).

The Bottom case construes Section lb of Article 8309, Vernon’s Annotated Civil Statutes, and cites with approval the case of United States Fidelity & Guaranty Co. v. Flanagan, 134 Tex. 374, 136 S.W.2d 210 (1940). The Flanagan case supports the Bottom case, but there is language in the Flanagan case which strongly indicates a different result would have been reached had the record shown facts similar to those facts presented in the present case. In the Flanagan case the essential facts were few. Flanagan sustained personal injuries on the streets of Beaumont while returning to his home after work hours when the bicycle upon which he was riding was struck by an automobile. Flanagan was employed by a drug company to deliver parcels in the City of Beaumont. Flanagan furnished his own bicycle as a means of transporting the parcels. However, Flanagan was not delivering parcels at the time of the accident. The Court pointed out the fact that he sometimes delivered parcels on his- way home, “but had none for delivery on that night.” The Court also pointed out that Flanagan “[ajfter he left the drug store at the close of his day’s work at ten o’clock p. m. on the night he was injured he was free to go where he pleased and Ms employer had no control over his movements. On that night he was going home by the most direct route and was within two blocks of his home when the automobile struck him.” This case was held to fall within the general rule which disallows compensation for injuries to employees while going to or returning from the place of employment. Both the Flanagan case and the Bottom case recognize that there are cases which fall within exceptions to this general rule. In the Bottom case, after giving a few examples of cases where injuries received while going to or returning from work have been held to be compensable, this Court placed Bottom’s case factually within the general rule and held that “ * * * [i]t is well settled that the mere gratuitous furnishing of transportation by the employer as an accommodation to the employee and not as an integral part of the contract of employment does not bring the employee who is injured while traveling on the streets and highways within the protection of the Workmen’s Compensation Act.”

Under the record, Dryden was bound contractually to transport the tools to the Nederland job. Fontenot and the insurer contend that Dryden was merely acting as a “favor” to the employer in transporting the tools, but the jury found that Dryden was injured in the course of his employment. Dryden was transporting the tools in furtherance of the affairs and business of his employer. He was not on a private mission as were Flanagan and Bottom. Under the agreement Fontenot was, in law, controlling the transportation of the power tools at all times. Regardless of who owned the automobile, the legal effect of the contract was that the employer furnished the transportation used by Dryden in the performance of a special service to the employer. The means of transportation was selected by the employer and accepted by Dryden. The contract of employment began the moment Dryden started loading the tools. The contract of employment had not ended when the accident occurred on Monday morning. The facts of this case meet the prerequisites enumerated in Section 1 of Article 8309, supra. Section lb should be construed in the light of the facts surrounding the employment contract. It should be remembered that contracts between employer and employee are usually oral. New agreements between employer and employee are made from time to time as circumstances arise. We have such a situation here where Fontenot realized that he must provide a means to get the tools to Nederland. He realized that it was his responsibility to furnish the transportation. In order to fulfill his contract to build a house and incidentally earn a profit, Fonte-not turned to Dryden for transportation. The arrangement for the use of Dryden’s automobile was equivalent to the employer furnishing transportation. Dryden accepted the employment and while carrying out his agreement was injured. Dryden was directed by his employer to proceed from Pinewood addition to Evádale and from Evadale to Nederland. The transportation of the tools was under the control of the employer. Dryden, so far as the transportation of the tools was concerned, was under the absolute control and dominion of his employer.

This Court, in the case of Janak v. Texas Employers’ Insurance Ass’n, 381 S.W.2d 176 (Tex.Sup.1964), held that travel during a deviation from a regular route was in furtherance of the employer’s business. In Janak, the “tool pusher” knew that the crew “must procure ice if they were to have any for their water.” In our case, Dryden knew that he had agreed to deliver tools to a job site in Nederland. He knew that he had to travel from his home in Jasper County, Texas, through the town of Vidor in Orange County, thence through Beaumont to Nederland. Dryden and the employer knew that the members of the crew must have the proper tools to properly and adequately perform their duties.

In the case of Jecker v. Western Alliance Ins. Co., 369 S.W.2d 776 (Tex.Sup.1963), this Court allowed Jecker’s heirs to recover under the Workmen’s Compensation Act. The Jecker case is analogous. Jecker was a sales and service manager for his employer. Impliedly, at least, Jecker had been directed by his employer to service an electric stove in a nearby town. Jecker’s heirs were allowed to recover because their case fell within an exception to the general rule.

I would affirm the judgments of the trial court and the Court of Civil Appeals.


source: Caselaw Access Project

author: HAMILTON, Justice.

license: Public Domain

text:
    The CITY OF PORT ARTHUR, Petitioner, v. Harrell G. TILLMAN et al., Respondents.
    No. A-10444.
    Supreme Court of Texas.
    July 28, 1965.
    Rehearing Denied Jan. 19, 1966.

      Cary Young, City Atty., Port Arthur, George B. Wikoff, Asst. City Atty., for petitioner.
    W. J. Durham, Dallas, for respondents Tillman & Tillman.
    Johns & Willard, Mack H. Hannah, III, Beaumont, for respondents Paul, Bridges, Prejean and others.
   HAMILTON, Justice.

Petitioner, City of Port Arthur, as successor and subrogee to the rights of Jefferson County Water Control and Improvement District No. 11, brought suit against respondents, Harrell G. Tillman and wife, D. D. Tillman, Mack Hannah, Jr., Hamilton Paul, Emily Bridges, Isaac Prejean and Frank Boutte. As an incorporated city in the state of Texas, petitioner alleged that it had annexed the above-mentioned water district on December 26, 1959, pursuant to Article 1182c-l, Vernon’s Ann.Civ.Stats. It succeeded to the powers of the district as well as to its assets and liabilities and was charged with the duty of performing all of its functions and services. On March 20, 1962, petitioner allegedly discovered the fraud of the Tillmans practiced upon its predecessor, the water district, on February 13, 1959, some ten months earlier than the formal annexation by the city. The city, as subrogee, filed this action on June 19, 1962, also alleging that the respondents Hannah, Paul, Bridges, Prejean and Boutte, as directors of the Jefferson County Water Control District No. 11, had violated and breached various of their statutory duties as trustees and directors of said district and were liable in damages for such actions on their official bonds in the amount of $5,-000 each.

The respondents in reply to said pleading filed special exceptions urging the two-year statute of limitations, asserting that peti-ioner’s pleadings upon their face showed that the City of Port Arthur’s alleged cause of action against said respondents was barred by the two-year statute of limitations. The trial court after hearing sustained said respondents’ special exception urging the two-year statute of limitations. The City of Port Arthur refused to amend, whereupon the trial court dismissed its suits against the respondents. The City of Port Arthur appealed to the Court of Civil Appeals, which affirmed the judgment of the trial court. 382 S.W.2d 138.

We hold that the trial court and the Court of Civil Appeals erred in sustaining respondents’ special exceptions urging the two-year statute of limitations, Article 5526 (Title 91), Vernon’s Ann.Civ.Stats., against the petitioner, the City of Port Arthur.

The two-year statute of limitations as to the incorporated City of Port Arthur is not applicable in this case because of Article 5517, Vernon’s Ann.Civ.Stats., which is as follows:

“The right of the State, all counties, incorporated cities and all school districts shall not be barred by any of the provisions of this Title, nor shall any person ever acquire, by occupancy or adverse possession, any right or title to any part or portion of any road, street, alley, sidewalk, or grounds which belong to any town, city, or county, or which have been donated or dedicated for public use to any such town, city, or county by the owner thereof, or which have been laid out or dedicated in any manner to public use in any town, city, or county in this State.” (Emphasis added.) See Article 5517, Vernon’s Ann.Tex.Stats.

In the case of Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961), we wrote the following:

“The Title referred to in said Article 5517 is Title 91 relating to Limitations. The Authority argues that the Legislature meant to refer to Chapter 1 of Title 91 which contains only the limitation articles relating to suits for land. This brings to mind the maxim that ‘If Parliament does not mean what it says, it must say so.’ 3 Newton v. Barnes, Tex.Civ.App., 150 S.W.2d 72, wr. ref If we were to approach the problem from the standpoint of the wisdom of the Legislature enactment, we could perhaps conclude that the Legislature may have had real property limitations only in mind. But this is an approach which may not be employed by the courts. We may not invade the legislative field. 50 Am.Jur., 212, § 228. There is nothing ambiguous or uncertain about the literal meaning of the Act and hence no need to explore its legislative history. The Act simply states that, ‘The right of the State, all counties, incorporated cities and all school districts shall not be barred by any of the provisions of this Title, * * *.’ Article 5526 is a part of the Title of the Revised Statutes referred to ‘The rule permitting departure from the literal meaning has no application at all where the statute is unambiguous and embodies a definite meaning and the intention of the legislature as expressed in the law is reasonably free from doubt.’ 50* Am.Jur. 239, Statutes, § 241. The amended act has remained on the statute books unchanged in wording since 1953, and we are not at liberty to depart from the literal meaning of the article at this time.”

As applied to this action, since the two-year statute of limitations falls within Title 91, petitioner is not barred from bringing this suit against any of the respondents on petitioner’s various theories as set out above. When the petitioner formally annexed the water district and became sub-rogated to its rights, only some ten months of the limitation period had run against the water district. Article 5517 applied to the petitioner at that time and the two-year statute of limitations does not apply.

The judgments of the Court of Civil Appeals and the trial court are reversed and the cause is remanded to the trial court for trial.

ON MOTION FOR REHEARING

On motion for rehearing respondents have raised the point that even if Article 5517, Vernon’s Annotated Civil Statutes, does prevent the two-year statute of limitation, Article 5526, Vernon’s Annotated Civil Statutes, from barring petitioner’s alleged cause of action, that Article 5544 will bar the city’s cause of action. Article 5544 is as follows:

“The period of limitation shall not be extended by the connection of one disability with another; and, when the law of limitation shall begin to run, it shall continue to run, notwithstanding any supervening disability of the party entitled to sue or liable to be sued.”

The trouble with respondents’ argument is that Article 5544 is a part of Title 91, just as is Article 5526, and 5517 keeps it from applying to incorporated cities. As quoted in our original opinion, “The right * * * of incorporated cities * * * shall not be barred by any of the provisions of this Title, * * *. [Emphasis ours.]

Respondents make the further point that the City of Port Arthur was taking over said Water District No. 11 for the purpose of engaging in a proprietary enterprise and that Article 5517 should not he construed to immunize the city from the statutes of limitation in such a situation. They say that to do so would cause the statute to conflict with the equal protection of the law provisions of the Texas and United States Constitutions. They argue that the statute, as we have construed it, exempting cities from the effect of the limitation statutes in Title 91 is an unreasonable classification and is unconstitutional. They cite us to no cases so holding and we have not found any. We have concluded that the classification is not unreasonable.

We overrule respondents’ motion for rehearing.


author: MORRISON, Judge.

text:
    Gye JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 38893.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.
    Brown & Shuman, by Clifford W. Brown, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the sale of beer in a dry area; the punishment, a fine of $400.00.

The record has now been perfected, and our prior opinion dismissing the appeal is withdrawn. Two young men, ages eighteen and nineteen, testified that they went to appellant’s cafe in the city of Matador and bought four bottles of beer from one Jessie T. Sims. Neither witness testified that appellant was present at the cafe or participated in making the sale to them. Neither witness remembered the date of the purchase.

The Sheriff and his deputy testified that they saw the two witnesses as they left the cafe and immediately thereafter apprehended them and seized the beer. Neither officer testified as to when they arrested the appellant. They both fixed the time of the seizure at between 10:00 and 11:00 on the night of January 23. The information charged the offense to have occurred on or about January 24.

' As soon as the time and date of the information, upon which the State was going to rely was made known, the appellant’s counsel moved the court to permit him to withdraw his announcement of ready and continue the case so that he might secure alibi witnesses who would testify that appellant was in the city of Spur, some 39 miles away, at the time fixed by the officers’ testimony. This motion was overruled.

Appellant, testifying in his own behalf, stated that he left his cafe in Matador at 7:30 p. m. on January 23, and went to Spur with a load of barbeque for his other cafe located there and that he got back to Matador at 12:30 a. m. He further testified that he did not have any beer in his cafe for Jessie Sims to sell, nor did he instruct him to sell beer in his absence, and that Sims was not an employee of his, but merely agreed to. tend his cafe while he was away in Spur.

Sims testified that appellant was present when the sale was made and that the young men had paid appellant after he had handed them the beer.

At the hearing on the motion for new trial appellant presented three witnesses who swore that appellant was in their company in the city of Spur at the time fixed by the officers.

Appellant objected to the charge of the court because it failed to instruct the jury on his defense of alibi. Johnson v. State, 136 Tex.Cr.R. 305, 124 S.W.2d 1001; Harris v. State, 119 Tex.Cr.R. 71, 44 S.W.2d 708, and the cases cited in 1 Branch’s Ann. P.C.2d, Sec. 78, p. 73, are authority requiring a reversal of this conviction. Where the issue of alibi is raised, it is error for the court to refuse to charge. It should be noted that the two State’s witnesses who testified as to the purchase said they did not see appellant in or about his place at the time and testified that their transaction was entirely with Sims. Article 662 Vernon’s Ann.C.C.P., upon which the court seemed to rely was repealed by the 53rd Legislature.

For the error of the court in failing to respond to the timely objection of appellant’s counsel, the judgment is reversed and the cause is remanded.


author: DICE, Commissioner.

text:
    Joe David CHILDRESS, Appellant, v. The STATE of Texas, Appellee.
    No. 38851.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Rehearing Denied Feb. 23, 1966.

      Will Gray, Jack Bodiford, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally, James E. F. Dally, James C. Brough and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for perjury; the punishment, enhanced by reason of two prior convictions less than capital, life imprisonment.

The prosecution grew out of certain alleged false testimony given by the appellant at a hearing held by Judge E. B. Duggan in the Criminal District Court of Harris County on September 28, 1964, to ascertain whether a confession had been used against the appellant in a trial for burglary in the year 1957 without it having been properly determined to be voluntary.

It was charged in the indictment that in the course of such judicial proceeding it became a material issue as to whether a written statement was made by appellant on or about the 25th day of November, 1956, as the result of duress, coercion, and physical abuse, and that the appellant, under the sanction of an oath duly administered to him, did deliberately and wilfully state and testify that prior to his making said statement one Arnold Loesch, a deputy sheriff of Washington County, did hit, slap, and strike appellant, which statement was false, and material to the issue in said cause.

Upon the instant trial, proof was offered by the state that at the hearing before Judge Duggan on September 28, 1964, appellant testified under oath that he was physically abused by deputy sheriff Loesch in 1956, as alleged, and that such testimony was false.

At the outset, appellant insists that the evidence is insufficient to support the conviction because the alleged false testimony was immaterial to the issue before the court at the time it was given.

If such testimony was not material to the issue in the hearing held by Judge Duggan, the same could not constitute perjury. See: 45 Tex.Jur.2d 49, Sec. 4, and cases there cited.

Art. 307, Vernon’s Ann.P.C., provides:

“The statement of any circumstance wholly immaterial to the matter in respect to which the declaration is made is not perjury.”

In Smith v. State, 158 Tex.Cr.R. 487, 256 S.W.2d 578, this court, in affirming a conviction upon different facts, recognized the rule that testimony which is immaterial to the issue before the court cannot be the basis for a prosecution for perjury.

We must therefore examine the record to determine whether the alleged false testimony given by appellant was material to the issue before the court when it was given.

The record shows that appellant was convicted in the Criminal District Court of Harris County for an offense of burglary committed on September 28, 1956, and his punishment, enhanced by two prior convictions for felonies less than capital, was assessed at life imprisonment. At the trial, an issue as to the voluntary nature of a confession introduced against the appellant was raised by the evidence. Upon appeal to this court, the judgment of conviction was affirmed in an opinion dated March 5, 1958, rehearing denied April 16,1958, which expressly overruled appellant’s contention that the confession introduced in evidence was inadmissible as a matter of law. Childress v. State, 166 Tex.Cr.R. 95, 312 S.W.2d 247.

Subsequently, appellant filed with this court an application for writ of habeas corpus in which he alleged that in his 1957 conviction for burglary he was denied due process of law because he was arrested upon an invalid warrant and his confession was used against him without being properly determined to be voluntary.

On August 11, 1964, Judge W. A. Morrison, of this court, entered an order in Application No. 482, styled Ex parte Joe Davii Childress, Original Application, which reads:

“ * * * .
“The Honorable Edmund B. Duggan, Judge of the Criminal District Court of Harris County, is hereby directed to hold a hearing, giving petitioner an opportunity to be present if he desires and to he represented by counsel, to develop the facts relative to the allegations that he was deprived of his constitutional rights under Aguilar v. Texas [378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723]; 32 L.W. 4499 (No. 548, June 15, 1964); and Jackson v. Denno [378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908]; 32 L.W. 4620 (No. 62, June 22, 1964), and to certify such facts to this Court in order that we may make proper disposition of petitioner’s application. Please return your findings before October 1.
* * *»

Pursuant to such order, a hearing was held by Judge Duggan, which was concluded on September 28, 1964, at which hearing the alleged false statement and testimony was given by appellant.

Subsequent to the hearing, a supplemental order was issued on October 9, 1964, in Application No. 482, styled Ex parte Joe Davij Childress, Original Application, which reads:

« * *
“In addition to the facts requested developed by the trial court in our order of August 11,1964, the Court is directed to make a finding of fact and of law as to whether or not the confession was voluntarily made as is required by Jackson v. Denno, 32 L.W. 4620.
“ * * *

It is apparent from the record that when appellant testified at the hearing which was concluded on September 28, 1964, the only question for determination was whether the court made an independent finding as to the voluntary nature of appellant’s confession before admitting it in evidence in the 1957 trial, as required by the Supreme Court of the United States in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

The testimony given by appellant at the hearing that he had been physically abused by the deputy sheriff when he made the confession was immaterial to the issue.

One of the tests of materiality in a prosecution for perjury is whether the false statement could influence the tribunal on the issue before it. 45 Tex.Jur.2d 49-50-51, Secs. 4 and 5.

Appellant’s statement and testimony relative to his mistreatment by the officer before making the confession could in no way influence this court in determining whether the trial court had made an independent finding as to the voluntary nature of the confession before admitting it in evidence.

While appellant’s testimony with reference to alleged police brutality was material to the question of the voluntariness of his confession and within the scope of the supplemental order dated October 9, 1964, this testimony was given before such order of October 9, 1964, was made.

The state agrees that the prosecution was based upon the alleged false testimony given at the hearing pursuant to the first order dated August 11, 1964.

Because of the insufficiency of the evidence, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    Joe Q. SULLIVAN, Appellant, v. The STATE of Texas, Appellee.
    No. 39212.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.
    Vernis Fulmer, Marion G. Holt, Nacog-doches, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The conviction from which this appeal is prosecuted was upon complaint and information alleging that appellant did “unlawfully kill a doe deer.” Appellant was found guilty as charged and the jury assessed his punishment at a fine of $200.

Art. 910 V.A.P.C. makes it unlawful “for any person to take, kill, wound, shoot at, hunt or possess, dead or alive, any wild female deer.”

In a prosecution under this statute it is necessary that the state allege and prove that the female or doe deer was wild, as distinguished from one in captivity or visibly in control of some person.

“Wild deer” are declared to be game animals. Art. 892 V.A.P.C.

All wild animals within the borders of the state are declared to be the property of the people of the state. Art. 871a V.A.P.C.

Art. 910 V.A.P.C. is one of the statutes enacted by the Legislature under its authority to make laws reasonably necessary for protection of public rights in wild game. Dobie v. State, 120 Tex.Cr.R. 72, 48 S.W.2d 289. A doe deer other than a wild or game animal is not protected by Art. 910 V.A.P.C.

The complaint and information, having omitted the necessary allegation that the female or doe deer killed was wild, charged no offense and appellant’s motion to quash should have been sustained. Stone v. State, 116 Tex.Cr.R. 110, 31 S.W.2d 1077.

Attorney General Price Daniel so ruled in 1947, Opinion No. V-S9.

Our prior order reversing the conviction and the opinion remanding the cause are withdrawn.

The complaint alleging no offense, the judgment is reversed and the prosecution ordered dismissed.


text:
    Ivory BOB, Appellant, v. The STATE of Texas, Appellee.
    No. 39078.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.
    Lawrence R. Green, Dallas, for appellant.
    Henry Wade, Dist. Atty., Malcolm Dade, Harryette Bercu and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is assault with intent to rape; the punishment, 35 years.

Trial was before a jury on a plea of not guilty. Sentence was pronounced and notice of appeal given on June 11, 1965.

The record contains no bills of exception. A number of objections made by appellant’s counsel are shown in the statement of facts, all of the court’s rulings thereon being favorable to appellant.

The statement of facts reveals the following:

The prosecutrix testified that on August 27, 1964, at approximately 3:15 P.M., she had returned from the grocery store to her home; that the house is a duplex in which Mr. and Mrs. Immanuel Sneed also lived; that when she returned home, she saw appellant standing on the front porch; that appellant asked her where her neighbor’s wife was and she replied that Mrs. Sneed was at the hospital with an injured back. Thereafter, prosecutrix entered her house and locked the screen door. Subsequently, she gave her children some candy and asked them to eat it on the front porch; after letting them out, she again locked the screen so that her eleven month old baby could not crawl outside. The record reflects that appellant then “snatched the screen away” and came into her house and began advancing upon her; that she backed into her bedroom, where appellant began choking her with both hands around her neck. At that time the prosecutrix was 6 months pregnant, and she passed out as a result of the choking. The next thing she remembered, appellant’s penis was on the lower part of her abdomen. Prosecu-trix then grabbed and scratched appellant’s penis and momentarily broke free and ran to the door screaming. Before she could get far, appellant caught her by the hair and dragged her down to her knees at which time she again lost consciousness.

Prosecutrix testified that at the time of this event she was a married woman; that she had not given appellant permission to have carnal knowledge of her,.and that his act was against her will and without her consent.

The record reflects that prosecutrix’ undergarments were all torn to pieces; that the dress she had been wearing was torn on the side; that her nose still bore scars from having been bitten by appellant.

Immanuel Sneed testified that as he pulled into the driveway of his home, at approximately 3:15 to 3:30 P.M. on the 27th day of August, 1964, he saw prosecutrix’ children outside of the house crying and, as a result of what they said, he entered pros-ecutrix’ side of the house where he saw appellant bending over prosecutrix; that when appellant saw him he began to run and, in his haste, broke the lock on the screen door; that he chased appellant and eventually caught him, never losing sight of him prior to his capture. Mr. Sneed also testified that appellant’s face and neck were scratched and that his britches were not dosed; that the prosecutrix’ clothing was above her waist at the time appellant was seen bending over her.

The evidence is sufficient to sustain the jury’s verdict and no reversible error appears.

The judgment is affirmed.


author: WOODLEY, Judge. MORRISON, Judge.

text:
    John Raymond MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 38783.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    Rehearing Denied Feb. 9, 1966.
    Farrar & Claunch, by Jim Claunch, Fort Worth, Ferguson & Busby, by Don Busby, Cleburne, (on rehearing), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Appellant was found guilty of having in his possession “equipment and material designed for and capable of use for, and used in the manufacturing of illicit beverages containing alcohol in excess of one-half of one per cent by volume” in a dry area. His punishment was assessed by the jury at 6 months in jail and a fine of $500.

Reversal is sought upon the contention that Art. 666-17a(l) Vernon’s Ann.P.C., under which the complaint and information were drawn, is unconstitutional in that it is too vague, general and indefinite and fails to advise the accused of the charges against him.

Art. 666-17a(l) reads:

“(1) It shall be unlawful for any person to have in his possession any equipment or material designed for, capable of use f<fc, or used in the manufacturing of any illicit beverage.”

Illicit Beverage is defined in Art. 666-3a(4) and includes any alcoholic beverage manufactured, stored, possessed * * * in violation of the Texas Liquor Control Act.

Art. 666^4(b) provides that it shall be unlawful for any person in any dry area to manufacture, distill * * * any liquor, distilled spirits, whiskey * * *.

These statutes were considered by this Court in Robinson v. State, 167 Tex.Cr.R. 40, 318 S.W.2d 62, wherein the information which failed to allege that the area was dry or that the beverage to be manufactured was illicit was held to charge no offense.

Construed in connection with the other provisions of the act above set out, which define illicit beverage and make it unlawful to manufacture liquor in a dry area, we overrule the contention that Section 17a (1) of the Texas Liquor Control Act is not sufficiently definite and certain as to advise the accused of the charges against him.

A similar statute was upheld in Johns v. State, 100 Tex.Cr.R. 65, 271 S.W. 926. See also Gifford v. State, 101 Tex.Cr.R. 7, 274 S.W. 149.

The sufficiency of the evidence to sustain the jury’s verdict is challenged.

It was stipulated that the area was dry.

The state relied upon circumstantial evidence.

W. M. Richardson, of the Texas Liquor Control Board, testified that he had known appellant for 2 or 3 years; that on December 11, 1964 he was checking a still that he had previously found and saw appellant there.

There were four 50 gallon barrels full of mash and other barrels; a copper tank or cooker; a coiled copper tubing with connections that would fit the tank to the tubing; a butane bottle and three star burners which were lit.

According to the witness Richardson, the appellant was there from about 1:30 to 4 o’clock P.M.; he was around this still equipment and he was moving, arranging and working with it.

Appellant’s truck was there loaded with cedar trees (or Christmas trees).

C. W. Strawn, Sheriff of adjoining Somervell County, testified that he was with Mr. Richardson. He described the equipment as nine barrels, four with mash in them, a butane bottle and three butane burners on it sitting between the four barrels. “There were two barrels on each side with a tarp over the top of them, and these bottles or burners were burning. Then there was a copper pot * *

“Q. Have you seen equipment such as you found there where Mr. Curly Moore was messing around with before?

“A. Yes, Sir, I have.”

He further testified that this particular still had all the equipment it needed to make or manufacture whiskey.

Police Officer Tom Kirkpatrick also described the equipment and testified that it was capable of making whiskey or “white lightning.”

The evidence is sufficient to sustain the jury’s finding that appellant had possession of the equipment or still used to manufacture illicit beverages.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

In his motion for rehearing the appellant cites two cases involving circumstances held insufficient to show possession and urges that we distinguish them from the case at bar.

In Gonzales v. State, 143 Tex.Cr.R. 48, 156 S.W.2d 988, the only evidence linking the accused to a gallon of whiskey found buried on a vacant lot was some unidentified tracks near his home leading to the area where the bottle of whiskey was uncovered. It was further shown in that case that a public road near the lot and appellant’s home would allow any traveler access to the spot where the bottle was buried.

In Gill v. State, 169 Tex.Cr.R. 297, 334 S.W.2d 181, the evidence of possession was held insufficient where a taxi cab driver who was carrying nothing was seen to enter a bushy area, where officers subsequently found some bottled whiskey, and to emerge still carrying nothing.

These cases are readily distinguishable from the instant case because here eye witnesses testimony placed the appellant at the scene of the still, working and arranging the equipment.

Remaining convinced that this cause was properly disposed of on original submission, appellant’s motion for rehearing is overruled.


text:
    James PUCKETT, Appellant, v. The STATE of Texas, Appellee.
    No. 38880.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.
    Rehearing Denied Feb. 23, 1966.
    Jesse L. Nickerson, Pittsburg (Court-appointed attorney), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder; the punishment, life.

The state’s evidence, including the confession of the appellant, reflects that appellant went to the home of the deceased and her mother armed with a shotgun and, without justification or excuse, fired a shot through the kitchen window from a distance of some 12 to IS feet, which struck the deceased in the abdominal area of her body inflicting injuries from which she died the next day.

The state’s evidence further shows that Sheriff Loveless got the call at 11 o’clock P.M. and, around 3 o’clock A.M., found appellant in the loft or attic of his mother’s home. Appellant was arrested and taken to the County Attorney’s Office in the courthouse where his confession introduced in evidence was made to the County Attorney.

Appellant denied having shot the deceased and testified that he signed the confession after he had asked for an attorney and County Attorney Bell “ * * * told me I didn’t need nary one,” because Sheriff Loveless had already pulled a gun on him out at the house and he was scared.

Prior to admitting the confession to the jury the trial judge retired the jury and heard evidence offered by the state and the defendant’s testimony and, at the conclusion of such hearing, found that the alleged confession was freely and voluntarily made and found that appellant had been warned of his rights in conformity with the laws of this state; that he was not threatened, harmed or mistreated by anyone prior to making and signing the statement.

The court further found in his order admitting the confession in evidence: “4. Defendant did not request counsel to advise or represent him or be present at any time after his arrest and before making and signing the said statement. He was not denied or refused counsel by L. E. Bell, Jr., or any other person prior to making the said statement. Counsel for him was not mentioned.”

The sole ground upon which reversal is sought is: “The Court erred in not granting Defendant’s motion for new trial thereby violating Defendant’s rights under the due process clause of the Fourteenth Amendment to the Federal Constitution because the uncontroverted evidence shows that Defendant was denied counsel at the time his alleged confession was taken.”

We do not agree that the uncontroverted evidence shows that appellant was denied counsel.

To the contrary, we find the evidence sufficient to sustain the trial court’s finding that appellant was not denied or refused counsel; that he did not request counsel and that counsel for him was not mentioned.

Appellant testified that he asked for an attorney and Mr. Bell told him two or three times that he did not need one, and that a lawyer would do him no good.

County Attorney Bell testified that he did not tell appellant that he could not have a lawyer and testified:

“Q. Did he say anything about getting an attorney to represent him at any time during the taking of this confession, before or after it?
“A. No, sir, not at all.
⅜ * * * * *
“Q. Mr. Bell, did you advise him of his right to have an attorney present?
“A. I advised him of all rights that are provided under the Statute, Mr. Nickerson.
“Q. Did you advise him of his right to have an attorney?
“A. If it is in that confession I advised him; if it is not I didn’t, because I used that to go by.
“Q. In other words, if it isn’t printed here you did not?
“A. Yes.”
Sheriff Loveless testified:
“Q. I want to ask you, Mr. Loveless, you have testified previously that you were in the office of Mr. L. E. Bell, Jr., on the morning of December 22, 1964, at the time the Defendant made a confession. Now, I want to ask you, Mr. Loveless, did the Defendant, James Puckett, at that time tell you or anyone in your presence that he wanted an attorney?
“A. He did not.
“Q. Did you hear anybody mention that he had the right to have an attorney present?
“A. I didn’t hear no attorney mentioned.
“Q. Did you hear anybody mention that he had the right if he wanted to to have an attorney?
“A. No, I didn’t hear no attorney mentioned.
“Q. I say, did you hear anybody advise him that?
“A. No, sir.”

Constable Roger Durant testified:

“Q. Roger, I want to ask you this question. You testified previously that you were present when James Puckett signed a confession in the office of L. E. Bell, Jr., on the 22nd of December, 1964. Now, at that time did James Puckett ask you or anyone else in your presence for an attorney?
“A. No, sir, he didn’t.
“Q. Did he make any statement at all about getting an attorney?
“A. No, sir, he didn’t.”
He further testified:
“Q. Well, did you hear anybody say he had to tell the truth, or did you hear anybody say you don’t have to tell the truth?
“A. The only thing that I can recall is that Mr. Bell advised him of his rights, and * * *
“Q. What were those rights?
“A. That he didn’t have to sign a statement unless he wanted to, and that he could have counsel if he wanted to.
“Q. All right, sir. That he could have Counsel if he wanted it?
“A. Right.
“Q. And you distinctly heard that?
“A. Yes, sir.”

• It is evident that the trial court resolved the fact issues raised by the above testimony when he found that appellant was not denied or refused counsel.

The fact that the County Attorney did not advise appellant of his right to counsel or that counsel for him was not mentioned shows no denial of due process under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

The judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Thomas CLARK, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 38613.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Rehearing Denied Feb. 23, 1966.

      Roy Engelke, La Marque, for appellant.
    Jules Damiani, Jr., Dist. Atty., Raymond E. Magee and Ronald L. Wilson, Asst. Dist. Attys., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is unlawful sale of a narcotic drug, marijuana; the punishment is life imprisonment.

The evidence reveals that Agent R. B. Merriweather of the Federal Bureau of Narcotics, while acting in an undercover capacity, first met appellant on May 28, 1964, and talked with him on several occasions during the following six weeks. On July 8, Agent Merriweather met two other Federal Bureau of Narcotics agents at the Houston branch office of that government agency at about 7 p. m. and proceeded to Galveston County where they conferred with two officers from the La Marque Police Department. At about 8:30 p. m. Agent Merriweather left La Marque in an unmarked government vehicle and drove alone into the city of Galveston. The other federal agents and the two policemen followed in another vehicle, which they parked, as previously planned, in an alleyway near the Galveston train station. Agent Merriweather meanwhile proceeded to an apartment at 21-G Palm Terrace where appellant admitted him and led him into an upstairs bedroom. Appellant closed the door and drew the window shades closed, then showed the agent some marijuana cigarettes. Agent Merriweather told appellant that he wanted heroin, but consented to buy these cigarettes, after appellant informed him that the marijuana was “all he had” because he was short of money and had been unable to locate his source of supply for heroin. The agent then gave appellant a $5 hill in exchange for five cigarettes. He then rendezvoused with the other four officers and returned to the La Marque Police Station, where the contents of the cigarettes was examined by Agents Merriweather and W. T. Benedict, Jr. and Police Officers Walter Feigle and Jerry Larson. Each of these men was called as a witness for the State, and each testified that, in his opinion, the cigarettes contained marijuana.

K. B. Anderson, Jr., another witness for the State, testified that he was a chemist employed for the past 13 years by the Alcohol and Tobacco Tax Division of the United States Treasury Department, and that his job consisted of analyzing alcoholic products, moonshine mash, and narcotics. He stated that he had analyzed the contents of the five cigarettes purchased from appellant, and identified the substance therein as marijuana.

It was properly shown that appellant had been previously convicted for the unlawful sale of marijuana, and that this conviction became final prior to the commission of the offense for which he was then being tried.

Appellant called no witnesses to contradict the evidence adduced by the State, and this evidence is sufficient to sustain the jury’s finding of guilty as to the primary offense and for the purpose of enhancement under Section 23 of Article 725b, Vernon’s Ann.P.C.

On Monday morning, December 7, 1964, the day before appellant’s trial began, appellant was brought into the courtroom handcuffed to another prisoner named Eatherly. ..Appellant was wearing prison attire, consisting of a white “jumper” with a large black “P” on the back, white duck trousers which also had the letter “P” stenciled or painted upon them, and rubber sandals which left his feet exposed. In the courtroom at this time was at least part of the jury panel from which the jury for appellant’s trial was later selected. The other prisoner, Eatherly, was found, at a sanity hearing that afternoon, to be insane by a jury selected from this same jury panel. Four of the members of the jury at Eatherly’s trial were also jurors in appellant’s trial. Both prisoners were taken through the courtroom to the “lockup” situated adjacent to the courtroom, where their handcuffs were removed. When the Eatherly sanity trial was recessed for lunch that day, appellant was brought from the “lock-up” into the courtroom, handcuffed to Eatherly, and taken from the courtroom in the presence of at least some of the members of the sanity trial jury.

Prior to the empaneling of the jury for appellant’s trial, appellant filed a motion to quash the jury panel on the grounds that these transactions, wherein appellant was led through the courtroom clad in prison clothing and handcuffed to another prisoner in the view of members of the jury panel, seriously impaired appellant’s right to presumption of innocence.

On the morning of December 8 a hearing was held on appellant’s motion after which the motion was overruled. After-wards, a jury was selected, empaneled, and sworn. Appellant was dressed in civilian clothes of his own choice. This jury found appellant guilty as charged, and sentenced him to the maximum punishment allowed by law.

Appellant’s motion for new trial, at which he again raised this issue supported by the affidavit of one juror, was also overruled, and appellant now contends that the trial court’s action in overruling each of these motions constitutes reversible error.

This Court 'has long condemned the practice of bringing an accused into the courtroom or into the view of the jury or jury panel while handcuffed. Mouton v. State, 155 Tex.Cr.R. 450, 235 S.W.2d 645; Gray v. State, 99 Tex.Cr.R. 305, 268 S.W. 941; Powell v. State, 50 Tex.Cr.R. 592, 99 S.W. 1005. When the prospective jurors were being examined, appellant and his counsel were no doubt aware that, some of the panel had been in the courtroom the previous morning when appellant was brought in. It is not shown that all of the jury panel witnessed appellant when he was handcuffed and clad in prison clothing. Through voir dire examination and challenges, appellant might have eliminated from the jury all those who had witnessed the events of the preceding day. He has failed to show that he was forced to accept a juror who was prejudiced. Hardy v. State, 161 Tex.Cr.R. 637, 279 S.W.2d 345; Burks v. State, 50 Tex.Cr.R. 47, 94 S.W. 1040; also see annotation at 76 A.L.R.2d 678.

There is no indication that appellant was forced to appear under similar degrading and prejudicial circumstances after the selection of the jury was completed. Under these facts, we find no error in the trial court’s action in overruling appellant’s motions.

Eight of appellant’s 17 points of error are concerned with the issues of entrapment and accomplice testimony. Appellant contends that the trial court erred in overruling his motion to disregard Agent Mer-riweather’s testimony and certain State’s exhibits, because he contends that Merri-weather was an accomplice and his testimony was uncorroborated, and also that the evidence was obtained by entrapment. The trial court also refused appellant’s requested instructions on the law of entrapment and accomplice testimony.

It is uncontradicted that appellant made an unsolicited offer to sell narcotics to Merriweather shortly after they met. On cross-examination, the 'agent testified as' follows:

Q: “Mr. Merriweather, prior to your obtaining this non-narcotic substance, before that time, did you ask Mr. Clarke for some Heroin?”
A: “No, sir, I did not.”
Q: “How did he know you wanted it ?”
A: “Mr. Clarke, sir, on the evening of May 28, had met me and had told me that he could get me a gram of Heroin, sir, for $65.00. To this, I agreed.”
Q: “You agreed to buy it?”
A: “Yes, sir.”
⅝ ⅝ ⅝ ⅝ ⅝ ⅜
Q: “Prior to that, had you indicated you were a user of Heroin?”
A: “No, sir, I had not.”
Q: “Had you indicated that you were a user of narcotics ?”
A: “No, sir, I had not.”

A careful review of the facts reveals that the conduct of Agent Merriweather, subsequent to this offer to sell, merely afforded appellant the opportunity to complete that sale.

In Alexander v. State, 168 Tex.Cr.R. 288, 325 S.W.2d 139 we set out the pertinent rule:

“ * * * the agent is not an accomplice witness so long as he does not bring about the crime, but merely obtains evidence to be used against those engaged in the traffic.” 325 S.W.2d 140.

Concerning entrapment, Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452, states the rule to which this Court has continued to adhere:

“It is the general rule that where the criminal intent originates in the mind of an accused, the fact that the officers furnish the opportunity for or aid the accused in the commission of a crime constitutes no defense to such a prosecution. However, if the criminal design originates in the mind of the officer and he induces a person to commit a crime which he would not otherwise have committed except for such inducement, such is entrapment and, in law, may constitute a defense.” 343 S.W.2d 454; also Vela v. State, Tex.Cr.App., 373 S.W.2d 505; Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762.

The record clearly shows that the criminal design in this case originated in the mind of appellant, and under the rule quoted above in Alexander, Agent Merriweather was not an accomplice.

It was therefore not necessary that his testimony be corroborated, nor was it error for the trial court to refuse to charge the jury on this issue. Masters v. State, 170 Tex.Cr.R. 471, 341 S.W.2d 938, 85 A.L.R.2d 1123. Likewise, as there was no evidence to raise the issue of entrapment, we find no error in the action of the trial court concerning this issue. McKinney v. State, Tex.Cr.App., 372 S.W.2d 699; Beck v. State, 172 Tex.Cr.R. 534, 360 S.W.2d 410; Cox v. State, 169 Tex.Cr.R. 332, 333 S.W.2d 849.

We further find that the trial judge properly allowed the State to show that appellant had, on a prior occasion, sold heroin to Agent Merriweather. In his charge, the trial court limited consideration of this evidence to the issue of motive, system, intent, and identity of appellant, and the evidence of the extraneous offense was admissible for that purpose.

Appellant contends that his motion for new trial should have been granted because of jury misconduct. Juror Croft testified that during its deliberations the jury discussed appellant’s failure to testify in his behalf. It is evident from the statement of facts adduced at this hearing that Croft was interested in impeaching his verdict. He stated at one point, “Well, I felt if was an injustice done after I got my thoughts back together, in fact, after I got home Thursday night, and so I felt maybe there 'was some way I could help Mr. Clarke to get a new trial.” Juror Krupala testified that no mention was made of appellant’s failure to take the witness stand. The only evidence to support juror Croft’s testimony was elicited from juror Thornton, who testified that the only reference to appellant’s failure to testify was the conjecture of one unidentified juror who stated, “I wonder why he didn’t.” The bare allusion to appellant’s failure to testify is not violative of Article 710, Vernon’s Ann.C.C.P. De La Rosa v. State, 167 Tex.Cr.R. 28, 317 S.W.2d 544; Byrom v. State, 154 Tex.Cr.R. 121, 225 S.W.2d 842; Bartlett v. State, 123 Tex.Cr.R. 464, 59 S.W.2d 157. The contradicting testimony of jurors Croft and Krupala raised- an issue of fact which the trial court, in overruling appellant’s motion for new trial, resolved against. appellant, which finding is binding on this Court. Scott v. State, 163 Tex.Cr.R. 15, 288 S.W.2d 796; see also Roberts v. State, 172 Tex.Cr.R. 500, 360 S.W.2d 883. We also find no merit to appellant’s other contentions concerning jury misconduct.

There was no error in the trial court’s refusal of appellant’s requested instruction to the effect that the jury must find beyond a reasonable doubt that the substance alleged to have been sold was in fact marijuana. There is no showing that this instruction was timely requested. Wishnow v. State, 166 Tex.Cr.R. 538, 316 S.W.2d 412.

Appellant’s objections to the court’s charge appear in a supplemental transcript and were filed with the trial court on July 8, 1965. The jury’s verdict was rendered on December 10, 1964. The objections were not shown to have been timely made. Nothing is presented for review. Fuller v. State, Tex.Cr.App., 380 S.W.2d 619 and cases there cited.

We find no merit in appellant’s other points of error.

The judgment is affirmed.


text:
    Tony T. HUNTER, Appellant, v. The STATE of Texas, Appellee.
    No. 39216.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.
    No attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., Scott Bradley, D. M. Teague 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 aggravated assault; the punishment, a $500.00 fine and one month in jail.

The State’s evidence reveals that Richard Walker, who was accompanied by the youthful son of one of his salesmen, delivered a new Friedrich air conditioner to to the home of Mrs. Shipman on the day in .question, that he was paid $285.00 in cash and that he picked upon an old air conditioner from her gárage as a trade-in. On returning to his office, Walker discovered that the compressor and fan motor were missing from the inside of the trade-in unit, thereby measurably reducing its value. At this juncture, Walker and the boy returned to Mrs. Shipman’s home, and when she refused to take her money back and return his new unit, they went to the appliance store of appellant’s brother, who was a competitor of Walker. There Walker sought to have appellant’s brother pay him the amount which had been allowed Mrs. Shipman for the old unit, which had been delivered to Mrs. Shipman by an employee of appellant’s brother at his order. At this time, according to Walker and the boy, the appellant’s brother hit Walker in the face and subsequently, at the behest of his brother, appellant pinioned Walker’s arms behind him as his brother beat Walker, a man of some 140 pounds, about the face.

The testimony reveals that Walker’s father had made an attempt to determine the source by which Friedrich air conditioners were supplied to appellant’s brother, who, although he was not an authorized dealer, had a stock of such which he admittedly sold below list price, in opposition to the policy of the authorized Friedrich dealers. It was further revealed that Mrs. Shipman’s husband and brother-in-law worked for appellant’s brother.

Admitted into evidence were hospital records which reflected that Walker had been operated on for injury to his nasal and cheek bones and which established that he had sustained serious bodily injury for which he was hospitalized for five days.

Color photos of his swollen face were also admitted in proving up the extent of the injury.

The appellant’s brother, a man of some 160 pounds, stated that he placed his hand on Walker’s shoulder and asked him to leave the shop, at which time Walker struck the first blow, hitting him in the mouth.

The appellant, a man of about 200 pounds, testifying in his own behalf, stated that he was on the phone in the shop when he observed the fight, that the first blow was struck by Walker, and that when his brother said, “Put him (Walker) out”, he complied.

A number of character witnesses testified as to the good reputation of appellant and his brother.

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

No formal bills of exception accompany the record, and we have reviewed the informal bills and find that they do not reflect error.

The judgment is affirmed.


text:
    Alfonso LUGO, Appellant, v. The STATE of Texas, Appellee.
    No. 39240.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.

      J. Charles Whitfield, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Edward B. McDonough, Jr., and Alvin A. Horne, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is driving while intoxicated; the punishment assessed by the jury is three days in jail and a fine of $50.00.

Rudolph Trevino, a witness for the state, testified that he was driving with his family on a public street in Houston, Harris County, Texas, on the evening of January 22, 1965, and that as he approached an intersection it was necessary for him to swerve to the side of the street, where he struck a light post, in order to prevent a collision with an automobile which had entered the intersection after failing to stop for a stop sign.

Mr. Trevino identified appellant as the driver of that vehicle, which had come to rest in the intersection. He testified that appellant’s breath smelled like beer, and that “his speech was slow.” In response to counsel’s question as to whether or not appellant was intoxicated, Trevino stated:

“Well, my opinion is that he was intoxicated because he was laying down on the seat when I went to him and I asked him if he didn’t see the stop sign, and he said, T am stopped, I am stopped,’ and I said, ‘you are drunk fellow,’ and he didn’t say anything.”

Officer B. R. White of the Houston Police Department made an investigation at the scene of the incident after being called by Mr. Trevino. The officer testified that appellant’s speech was slurred, he walked with a mild sway, his eyes were watery, and his breath smelled of alcoholic beverage. In the opinion of the officer, appellant was intoxicated.

Officer White further testified without objection that appellant executed a written consent to the taking of a specimen of his blood, and the officer observed the taking of the specimen from the arm of appellant.

Chain of custody was established, and F. E. McDonald, chemist and toxicologist for the Houston Police Department, testified that an examination of this specimen revealed that it contained .17’% alcohol, and that any person with that much alcohol in their blood would undoubtedly be intoxicated.

The evidence is sufficient to support the jury’s verdict.

Appellant’s only ground for reversal is his contention that the trial court committed reversible error in admitting testimony as to the results of the blood analysis, for the reasons that when the specimen was taken, appellant had not been warned of his rights against self-incrimination; that he had not been taken before a magistrate, and that he had not been afforded the opportunity to consult with counsel prior to signing the written consent for the taking of the blood specimen. ⅛

There was no requirement that warning he given appellant prior to the taking of his blood specimen. The statutory safeguards concerning confession provided by Article 727, Vernon’s Ann.C.C.P., 1925, then in effect, did not extend to the taking of blood tests. Ragland v. State, Tex.Cr.App., 391 S.W.2d 418. There is no indication in the record that appellant was denied the right to counsel at any stage of the proceedings, and the holding in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, cited by appellant, is not applicable to this case.

In his brief appellant concedes that there was no reversible error under the Code of Criminal Procedure, 1925, as interpreted by this Court, but he urges that this statute is no longer the law. The Code of Criminal Procedure, 1965, effective January 1, 1966, does not govern the proceedings which transpired before that date. Holdman v. State, Tex.Cr.App., 399 S.W.2d 361, January 19, 1966.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Lee Meza ESPINOZA, Appellant, v. The STATE of Texas, Appellee.
    No. 38871.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.
    Rehearing Denied Feb. 23, 1966.
    Joann Peters, Dallas, Waldie, McDowell & Colvin, by Emmett Colvin, Jr. (On Appeal Only), Dallas, for appellant.
    Henry Wade, Dist. Atty., Don Koons, Joe Max Henley and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, fourteen days in jail and a fine of $500.

The testimony of two officers reveals that the automobile which they saw the appellant driving on a public street was weaving and also struck the curb before it was stopped. They further testified that immediately after the appellant had stopped they saw him walk, heard him talk, and smelled the odor of alcohol on his breath; and they expressed the opinion that he was intoxicated.

Testifying in his own behalf, the appellant admitted drinking two beers about an hour before he was apprehended, but stated that he was not intoxicated. Appellant’s testimony is supported by that of his brother who saw him a short time before his arrest.

The jury resolved the issue of intoxication against him, and the evidence is sufficient to support the conviction.

The sole contention relied on for reversal is that the trial court erred in permitting testimony that the appellant had been in jail and paid a fine for being drunk and disorderly on Saturday night before he was arrested on Sunday night for driving while intoxicated, the offense charged in this case.

This matter arose during the cross-examination of the appellant as follows:

“Q Now, you said you hadn’t done any drinking all day Sunday, is that right ?
“A Correct.
“Q About what time did you get up, do you remember?
“A About 6:00.
⅝ ¾» ⅜ ⅜ ⅝
“Q All right. And you say you got out of bed about 6:00 that morning ?
“A Yes, sir.
“Q All right. I guess that was at home, wasn’t it?
“A Yes, sir.
“Q You say it was at home where you got out of bed that morning?
“A Yes, sir, and I got up at 6:00.
“Q Your answer was yes to my question you got out of bed at home?
“A Yes.
“Q Is that right?
“A Yes, sir.
“Q Do you want to tell the jury where you got out of bed Sunday morning? You think about it and you tell me and I’ll ask you a couple of more questions. Now, did you see anybody else any time on Sunday there ?
“A No.
⅜ ⅝ ⅜ ⅜ . ⅜ ⅜
“Q Have you thought about yet where you got up on that Sunday morning ?
“A At home.
“Q At home. It’s true, isn’t it, Mr. Espinoza, that you got out of jail on that Sunday morning after being thrown in jail on Saturday night for being drunk and disorderly and you paid $10 ?
“Appellant’s Attorney.: Your Honor, I object to that question. It’s full of possibilities.
“Q You spent that Saturday night in jail, didn’t you?
“The Court: Was that an objection?
“Appellant’s Attorney: Yes, sir, I object to the question.
“The Court: The State’s attempting to impeach the witness.
“State’s Counsel: Yes, sir.
“The Court: I’ll overrule you.
“Appellant’s Attorney: I would object to the question, the form of the question.
“The Court: All right.
“Q Isn’t that right?
“A Yes, right.
“Q It just kind of skipped your mind, didn’t it? You didn’t get up from your house but you got up from a jail bed down there Saturday night, isn’t that right ?
“A Right.
“Q And you paid $10 for being drunk and disorderly?
“A Yes, sir.”

On re-direct examination the appellant testified as follows:

“Q Mr. Espinoza, did you get out of bed at home at 6:00 Sunday morning?
“A No, ma’am.
⅜? ⅝ ⅝ ⅝ i[c Jjc
“Q All right. Did you pay some money to get out of jail Sunday morning?
“A $10.”

There were no objections on the ground that the occurrences Saturday night and Sunday morning were extraneous and prejudicial, and no motions were made to strike such testimony or that the jury be instructed not to consider it.

In light of the record, no reversible error is shown.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Jack Grady HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 38943.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.
    Rehearing Denied Feb. 23, 1966.
    Tom Howard, Dallas, Waldie, McDowell & Colvin, by Emmett Colvin, Jr. (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., John Nelms, Kenneth E. Blassingame 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 assault with intent to commit murder with malice; the punishment, five years.

Phyllis Herring, the injured party, testified that while visiting in the home of the McFaddens, her three year old daughter had come in on three occasions complaining that the appellant’s son, Pinky, had struck her. Mrs. Herring stated that on the last occasion, accompanied by her daughter, she went to the appellant’s house, met him outside and told him that she wanted something done about the welts inflicted by his son. She further testified that appellant stated, “What in the hell do you want me to do about it?”, and thereupon called his wife outside. His wife appeared and during the conversation which ensued Mrs. Herring stated that appellant told his wife three times to “Go in the house and get the God damn ice pick and cut that son of a bitch’s guts out.” Mrs. Herring stated that she headed back for the home of her friends and that as she reached their driveway she heard some loud talking, turned to the left, and felt the impact of the bullet piercing her head.

It was undisputed that appellant’s wife shot Mrs. Herring.

Witness Knowles testified that he was on the front porch of his home across the street during the argument between appellant’s wife and Mrs. Herring, that appellant and his wife were on their porch and Mrs. Herring was in their yard, and that as Mrs. Herring turned to walk back to the McFadden house, the appellant said, “Don’t argue with her, blow her God damn head off” and that Mrs. Herring turned around at which time a shot was fired.

Dr. Linder, resident ophthalmologist at Parkland Hospital, testified that he examined Mrs. Herring on the night of the shooting and found that a bullet had perforated and completely destroyed the globe of her eye and had come to rest in the temporal lobe of her brain. He stated that he surgically removed the entire wounded eye.

Mrs. McFadden corroborated Mrs. Herring as to the presence of welts on the young daughter’s back.

Officer Franklin testified that he found blood puddles on the McFadden driveway some twenty-five feet from the appellant’s house.

Testifying in his own behalf, appellant stated that Mrs. Herring called him a son of a bitch, that he did not encourage his wife in any way to harm Mrs. Herring, that he did not expect his wife to do any more than try to reason with her, and that he did not see the gun with which his wife shot Mrs. Herring.

In support of his application for suspended sentence, the appellant called a number of character witnesses.

The appellant’s sole contention on appeal relates to the sufficiency of the evidence to convict him as a principal under Article 66, Vernon’s Ann.P.C., which reads as follows:

“When an offense is actually committed by one or more persons, but others are present, and knowing the unlawful intent, aid by act or encourage by words or gestures, those actually engaged in the commission of the unlawful act, or who, not being actually present, keep watch so as to prevent the interruption of those engaged in committing the offense, such persons so aiding, encouraging or keeping watch are principal offenders.”

Under the rule announced by this Court in Brown v. State, 146 Tex.Cr.R. 602, 177 S.W.2d 64, we find the evidence sufficient to warrant the jury’s finding that the accused was present, knew of his wife’s unlawful intent, and encouraged by words her unlawful act.

No reversible error appearing, the judgment is affirmed. 1


text:
    Ernest Edwin BLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 38854.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    Gib Callaway, Brownwood, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Our prior opinion is withdrawn.

The conviction is for driving a motor vehicle upon a public highway while intoxicated; the punishment, confinement in jail for three days and a fine of $50.

In view of our disposition of the case, a recitation of the facts is unnecessary.

The court, in his charge, gave no instruction to the jury on the law relative to the presumption of innocence.

Appellant timely presented to the court his requested charge #1, which would have instructed the jury relative to the presumption. Such requested charge was by the court refused, to which action of the court appellant duly excepted.

The court’s action presents reversible error, as a charge on the subject should have been given. See: Bennett v. State, Tex.Cr.App., 396 S.W.2d 875, opinion delivered November 24, 1965, and cases there cited.

For the error pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the court.